Opinion
20-P-1282
02-09-2022
COMMONWEALTH v. Jorge CARTAGENA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant, Jorge Cartagena, of three counts of armed robbery, in violation of G. L. c. 265, § 17, and one count of armed assault with intent to rob, in violation of G. L. c. 265, § 18 (b ). On appeal, the defendant contends that: (1) there was error in the denial of his motions to suppress; (2) improper testimony prejudiced the jury; (3) eyewitness jury instructions were incorrect; and (4) the verdicts were inconsistent. We affirm.
The jury found him not guilty of one count of armed robbery, G. L. c. 265, § 17.
1. Motions to suppress. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). "We review independently the application of constitutional principles to the facts found." Id.
a. Stop. We summarize the facts found by the motion judge following an evidentiary hearing, supplemented by testimony of Detective Conway which the motion judge credited in full. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 430 (2015). After a series of bank robberies in the area, Detectives Conway and DeJesus patrolled local banks to provide extra police presence. In a shopping plaza where two banks were recently robbed, Detective Conway identified a gray Nissan Altima with body damage that matched the description of a car with body damage seen on video surveillance footage leaving the scene of a recent bank robbery. While in the plaza, the detectives saw a woman get in the driver's side of the Nissan, a man get in the passenger's side, and a child get in the back. The car drove away, and the detectives followed in an unmarked car for approximately one mile.
The detectives stopped the Nissan after it failed to stop at a stop sign. The detectives identified the driver and, because the passenger stated he did not have identification, accepted the passenger's statement that his name was Wilson Cartagena. The Nissan and its passengers were allowed to leave after the detectives ran their names through their databases, gave the driver a verbal warning for the stop sign infraction, and gave the passenger a verbal warning for not wearing a seatbelt. Detective Conway did not recognize the passenger as the suspected robber even though the detective had previously seen bank surveillance footage. A subsequent photographic database search identified the passenger as the defendant, Jorge Cartagena, not Wilson Cartagena.
The defendant claims the stop was unlawful. A motor vehicle stop "is reasonable, and therefore constitutional, where an officer has observed a traffic infraction and, as a result, has actual cause to believe that the driver violated an applicable motor vehicle law." Commonwealth v. Larose, 483 Mass. 323, 326 (2019). A civil infraction justifies a stop. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020) ; Commonwealth v. Barreto, 483 Mass. 716, 721 (2019). The motion judge found that the Nissan "failed to slow down or stop at two intersections." The defendant's argument that Detective Conway's testimony was not credible is unavailing. "On a motion to suppress, [t]he determination of the weight and credibility of the testimony is the function and responsibility of the [motion] judge who saw the witnesses, and not [the reviewing court]" (quotation omitted). Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008), quoting Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). The finding was fully supported and the ruling was legally sound.
The defendant further argues that the officers improperly extended the stop without a basis to believe that either occupant had committed a crime. The officers were permitted to request identification from both the driver and the passenger, because both had committed a civil infraction in the presence of the officer; the driver ran a stop sign and the passenger was not wearing a seatbelt. See Commonwealth v. Buckley, 478 Mass. 861, 873-874 (2018). The stop was not impermissibly prolonged. Compare Commonwealth v. Cordero, 477 Mass. 237, 243 (2017).
b. Photograph arrays. The defendant next contends that the judge erred in denying his motion to suppress because the photograph arrays police presented to two witnesses were impermissibly suggestive. To succeed on his motion, "the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." Commonwealth v. Arzola, 470 Mass. 809, 813 (2015), cert. denied, 577 U.S. 1061 (2016), quoting Commonwealth v. Cavitt, 460 Mass. 617, 632 (2011).
Using the Registry of Motor Vehicles photograph of the defendant, law enforcement officials searched for other individuals in their database with similar characteristics and assembled a photograph array. A different photograph of the defendant was used in the second array. The men depicted in both photograph arrays possessed similar features and physical characteristics, including a shaved head and light to medium skin complexion. The defendant's argument that the arrays were impermissibly suggestive because some photographs were of nonHispanic men is not persuasive. The ethnicities of the men were unknown to the witnesses, and the features and characteristics of the men depicted in the photographs were similar. The arrays were not unduly suggestive. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 795 (2009).
The photograph used for the second array appears to be taken after his arrest.
The defendant's assertion that using a photograph of him with facial hair was impermissibly suggestive is likewise unconvincing. The motion judge noted that in the first array at least seven of the nine photographs depicted an individual with facial hair, and in the second array at least five of the seven photographs depicted an individual with facial hair. Furthermore, the photograph array identification checklist, which the witnesses initialed, stated "[p]eople may not appear exactly as they did at the time of the event, because features such as clothing and head/facial hair are subject to change." At the time of the robberies, the person captured on video surveillance footage had facial hair. A photograph array with individuals who had facial hair was not impermissibly suggestive. See Silva-Santiago, 453 Mass. at 795.
2. Testimony. The defendant contends that inadmissible testimony prejudiced the jury, namely: (1) a statement by Detective O'Keefe that he located the defendant's photograph in a booking database; (2) a statement by a witness that she recognized the defendant from previous robberies; and (3) a statement by a second witness that the person who committed the robberies was "sitting in front" of him in the courtroom.
In each case, the question was proper but the answer was not. While defense counsel promptly objected to the contested testimony, in all three instances the defendant did not move to strike. Accordingly, the objections were not preserved, and we review the claims of error for a substantial risk of a miscarriage of justice. Commonwealth v. Grady, 474 Mass. 715, 720-721 (2016) ; Commonwealth v. Almele, 474 Mass. 1017, 1019 (2016) ; Commonwealth v. Senior, 454 Mass. 12, 16-17 (2009).
Detective O'Keefe’s statement that he looked in the booking database to locate the defendant's picture was best avoided. See Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 802 (2008) ("the accompanying police testimony, explaining that the photographs were compiled from a database of those with a prior arrest history, unduly raised the taint of prior criminal activity"). However, the prosecutor drew forth additional testimony from the detective clarifying that the defendant's picture was obtained from the Registry of Motor Vehicles, minimizing any ill effect. Furthermore, defense counsel elicited on cross-examination that the defendant had a warrant for his arrest on an unrelated matter in order to explain why he gave a false name to the detectives. See Commonwealth v. Evans, 415 Mass. 422, 425 (1993) ("the defendant brought out [on cross-examination] most of the facts he now argues constitute reversible error"). Detective O'Keefe’s testimony did not create a substantial risk of a miscarriage of justice.
With respect to the witness's statement that she recognized the customer who robbed her from previous robberies, defense counsel objected and the judge sustained the objection. The judge twice instructed the jury (at the beginning and end of the trial) that it was counsels’ responsibility to object to evidence they believed was inadmissible. At the beginning of the trial the judge also told the jury that if the evidence did not conform to the rules of evidence then he will say "sustained." There was no error. See Commonwealth v. Santiago, 458 Mass. 405, 413 (2010).
The second witness's statement presents a more complex problem. Without having previously made an out-of-court identification, and without being asked, the witness volunteered that the person who pushed him at the bank was "sitting in front of [him] right now." The testimony was inadmissible because the witness had not previously made an out-of-court identification, and there was no "good reason" for the in-court identification. Commonwealth v. Ortiz, 487 Mass. 602, 608-609 (2021), quoting Commonwealth v. Crayton, 470 Mass. 228, 241 (2014). We review for a substantial risk of a miscarriage of justice, taking into consideration the strength of the Commonwealth's case, the tactical decisions of counsel, and "whether the outcome of the trial might have been different had the error not been made" (quotation and citation omitted). Commonwealth v. King, 460 Mass. 80, 85 (2011).
We have carefully reviewed the record and conclude that there was no substantial risk of miscarriage of justice. Trial counsel made a tactical decision to ask that the judge not give a curative instruction in order to avoid highlighting the testimony. The prosecutor did not rely on the improper testimony in closing argument, and instead asked the jurors to simply look at the defendant, look at the surveillance videos and photographs, and make up their own minds. See Commonwealth v. Pires, 97 Mass. App. Ct. 480, 488 (2020) ("The jury also viewed surveillance footage conveying much of the substance of [the] statement"). Cf. Ortiz, 487 Mass. at 610-611. The Nissan in which the defendant had been found had body damage that was the same as the body damage to the gray car seen in surveillance footage. The defendant gave a false name when stopped in that car, evidence of consciousness of guilt. We conclude that the outcome of the trial would not have been different had the mistake not been made.
3. Jury instruction. The defendant contends the trial judge committed prejudicial error when he instructed the jury that they should consider whether a witness saw a weapon even though no weapon was displayed in the robberies. The defendant objected to the instruction at trial; we review for prejudicial error. See Commonwealth v. Allen, 474 Mass. 162, 168 (2016). "We determine ‘whether the instructions were legally erroneous, and (if so) whether the error was prejudicial.’ " Id., quoting Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). "When reviewing jury instructions, we evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words" (quotation and citation omitted). Commonwealth v. Vargas, 475 Mass. 338, 349 (2016).
The judge instructed the jury:
"You should consider whether the witness saw a weapon during the event. If the event is of short duration, the visible presence of a weapon may distract the witness's attention away from a person's face. But the longer the event, the more time the witness may have to get used to the presence of a weapon and focus on the person's face."
The jurors heard the evidence and knew that no gun was seen at any of the robberies, and the judge so instructed the jury. In each of the robberies, however, the robber passed the teller a note that stated he had a gun. The judge included the instruction in order to, in his words, take into account "the sort of psychological impact of a communication claiming there's a weapon" had on the witnesses. "The manner in which a judge instructs the jury is a matter of discretion," discretion that was not abused here. Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 114 (2011).
Additionally, defense counsel argued to the jury that one of the tellers was so panicked by the robber's note mentioning a gun that it "greatly affected, I would argue, her ability to make an accurate identification." Defense counsel also relied on the premise that the threat of a gun impeded accurate identification, and the instruction was not inconsistent with that defense.
4. Inconsistent verdicts. Finally, the defendant maintains that the not guilty verdict on one count of robbery was inconsistent with the guilty verdicts on four other robbery related crimes. "Verdicts are factually inconsistent when, ‘considered together, [they] suggest inconsistent interpretations of the evidence presented at trial.’ " Commonwealth v. Andrade, 488 Mass. 522, 527 (2021), quoting Commonwealth v. Resende, 476 Mass. 141, 147 (2017). The jury evaluate each indictment independently, however; factually inconsistent verdicts are permissible. Andrade, supra. Notwithstanding the permissibility of factually inconsistent verdicts, the verdicts here were not factually inconsistent. The jury could have found that the Commonwealth failed to prove an element of armed robbery because the bank employee testified that she was not afraid. See Commonwealth v. Colon, 52 Mass. App. Ct. 725, 727-728 (2001). The judge properly denied the motion.
Judgments affirmed.