Opinion
20-P-505
01-14-2021
COMMONWEALTH v. MAX R. CORONA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Max Corona, was convicted of two counts of witness intimidation, in violation of G. L. c. 268, § 13B. The defendant subsequently filed a motion for a new trial that was denied, and in this consolidated appeal the defendant raises a number of arguments related to the victim's in-court identification of the defendant at trial. Because we conclude that the judge did not abuse his discretion in admitting the in-court identification for "good reason," we affirm the defendant's convictions. Commonwealth v. Crayton, 470 Mass. 228, 241 (2014). Further concluding that the defendant failed to establish that his trial counsel was ineffective, we affirm the denial of the defendant's motion for a new trial.
Background. On December 28, 2017, the victim, Santos Argueta-Martinez, was working as a food delivery driver in Chelsea. At approximately 8 P.M. that evening the victim parked to make a food delivery, and while he was still seated in his vehicle, another vehicle side-swiped his, damaging his vehicle's side-view mirror. The driver of the second vehicle drove away from the accident, and the victim followed the car. When the driver ultimately stopped at a stop sign, the victim took a photograph of the vehicle's license plate and returned to the place of the accident to make his food delivery. Once he completed the delivery, the victim got back inside his vehicle and noticed that the other driver had returned to the accident scene as well.
The driver initially pulled his vehicle next to the victim's and told him that he would pay him cash, suggesting that he did not wish to resolve the matter through insurance. The driver then parked his vehicle behind the victim's and walked over to the victim's passenger-side window. At this point, the victim rolled his window down slightly and asked the driver if he had the motor vehicle registration for the car he was operating. The driver responded that he did not, and that the victim should blame the accident on someone other than the driver. The driver warned the victim that if he filed a claim against him, the victim "was going to be in trouble with him." The interaction lasted a total of three to four minutes, and once the victim drove away, he reported the incident to the police.
Several days later, on January 3, 2018, at approximately 8:30 P.M., a male appeared at the victim's place of work, holding a document in his hand and confronted the victim, saying "look what you caused, look what you caused." The victim recognized this male as the driver of the vehicle from the December 28 accident both by his voice and by the fact that he directly referred to the accident. Furthermore, he was wearing the same cap that he had worn during the accident. The male then challenged the victim to "go outside." When the victim refused to do so, the man began taking photographs of him with his cell phone. The victim contacted the police, and the man left before the police arrived. The interaction between the victim and the male lasted a total of three to four minutes. When the police arrived, the victim informed them that the person was the same person involved in the car accident with him on December 28.
Based on both interactions with the victim, the defendant was charged with two counts of witness intimidation, and one count each of leaving the scene of property damage and unlicensed operation of a motor vehicle., Prior to trial, the Commonwealth filed a motion in limine seeking to allow an in-court identification of the defendant by the victim, and the defendant filed a motion in limine seeking to exclude the requested in-court identification. The trial judge conducted a hearing on the motions, where he held a voir dire of the victim to discern the victim's observations of the defendant during the two encounters. After the hearing, the judge concluded that there was "good cause" for the in-court identification and allowed the Commonwealth's motion.
The charge of unlicensed operation of a motor vehicle was dismissed at the request of the Commonwealth, and the jury acquitted the defendant of leaving the scene of property damage.
The Chelsea police were able to identify the defendant and charge him by using the photograph of the vehicle's license plate taken by the victim. The vehicle was registered to a woman named Daisy Lopez who informed the officers that her boyfriend, Max Corona, was driving the vehicle on December 28, 2017. Lopez did not testify at trial, and as a result, her statement was excluded as hearsay.
The motions were originally heard and ruled on by a different judge on the date that the trial was supposed to be held. That judge allowed the Commonwealth's motion to admit the in-court identification. However, because the trial was continued, at the defendant's request, the trial judge agreed to reconsider the Commonwealth's and the defendant's motions.
The judge, however, proposed as an option to the defendant a procedure whereby the defendant would remain out of the victim's sight while the victim testified on direct and cross-examination, prior to any attempt of an in-court identification. The judge suggested that the defendant sit behind a whiteboard, which concealed the defendant from the knees up, while the Commonwealth questioned the victim about the two incidents and his interactions with the defendant. After the defendant had the opportunity to cross-examine the victim about his observations of the defendant, the whiteboard would be removed and the victim permitted to make an in-court identification of the defendant, if possible. The defendant requested that the judge use this procedure (whiteboard procedure), and the judge agreed to do so. The whiteboard procedure was employed at trial, and once the victim was allowed an unobstructed view of the defendant, he positively identified him as being the individual who hit his vehicle on December 28 and appeared at his place of work on January 3.
Discussion. 1. Admission of in-court identification. The defendant argues that the judge erred in admitting the victim's in-court identification of the defendant as the person involved in both the December 28 and the January 3 incidents because the identification was not preceded by an unequivocal, out-of-court identification procedure. We review a judge's decision to admit this evidence for an abuse of discretion. See Commonwealth v. Collins, 92 Mass. App. Ct. 395, 397 (2017).
When no prior out-of-court identification procedure is conducted before trial, and the in-court identification "is therefore the only identification of the defendant made by an eyewitness," the in-court identification is treated as a showup and may be deemed unnecessarily suggestive. Crayton, 470 Mass. at 241. In such an instance, the in-court identification shall be admitted in evidence "only where there is 'good reason' for its admission." Id. The defendant bears the burden of "showing that the in-court identification would be unnecessarily suggestive and that there is not 'good reason' for it." Id. at 243.
Here, there is some ambiguity about whether (1) the judge concluded that there was no out-of-court identification but good reason for the admission of the in-court identification, or (2) he treated the January 3 interaction between the defendant and the victim as an out-of-court identification procedure created by the defendant and admitted the in-court identification for that reason. The defendant argues that, if the January 3 incident was treated as an out-of-court identification, the victim's identification of the defendant on that date was "less than an unequivocal positive identification of the defendant," Commonwealth v. Collins, 470 Mass. 255, 265 (2014), and should not be admitted except for "good reason." See id. (applying Crayton rule where there is equivocal identification in nonsuggestive out-of-court identification procedure). Because we conclude that it was not an abuse of discretion to admit the victim's in-court identification of the defendant for good reason, we need not decide whether the January 3 interaction between the defendant and the victim could be properly characterized as an out-of-court identification procedure, or whether any identification arising from that interaction was unequivocal.
During the hearing on the motions in limine, but prior to the voir dire of the victim, the judge indicated to trial counsel that it appeared that the defendant "created the identification procedure," which would obviate the need for the Commonwealth to do so. However, after the voir dire, the judge stated that he was admitting the in-court identification for "good cause." There appeared to be some confusion about the characterization of the January 3 interaction. The arguments in the Commonwealth's brief suggest that no out-of-court identification took place prior to trial, and at oral argument, the defendant's counsel indicated that he did not characterize the January 3 interaction as an identification. The defendant, however, argues infra that the January 3 interaction was in fact an identification. We need not decide this issue on appeal.
In Crayton, the court contemplated that "there may be 'good reason' for the first identification procedure to be an in-court showup where the eyewitness was familiar with the defendant before the commission of the crime." Crayton, 470 Mass. at 242. The court, however, did not foreclose the possibility that good reason for an in-court identification may exist in circumstances where the victim became familiar with the defendant during and after the commission of the crime. See id. The court was primarily concerned with in-court identifications "based solely on [an eyewitness's] memory of witnessing the defendant at the time of the crime." Id. at 243. However, where a witness identifies the defendant based on an "extensive and intensive opportunity to observe the defendant," Commonwealth v. Fielding, 94 Mass. App. Ct. 718, 723 (2019), good reason will justify its admission because there is minimal risk of misidentification. See id. See also Crayton, supra at 243.
The concerns in Crayton are not present in this case. The victim's identification of the defendant was not based on an isolated or singular interaction with the defendant. On December 28, the victim had a face-to-face conversation with the defendant for three to four minutes. While his view of the defendant's face on this date was not exceptionally clear, the victim recognized the defendant's skin complexion to be similar to his own. He observed the defendant wearing a cap, and identified the defendant as Hispanic by the way the defendant "spoke some words in Spanish and some in English." While this interaction alone would likely provide insufficient reasoning for the admission of a first-time in-court identification of the defendant by the victim, it must not be considered in isolation. See Crayton, 470 Mass. at 245 (concluding that no good reason existed for admission of in-court identification where no prior out-of-court identification was made, and eyewitnesses observed defendant for short period of time on one occasion).
The victim is a native Spanish speaker who required the assistance of a Spanish interpreter at trial.
Just five days later, on January 3, the defendant appeared at the victim's place of work wearing the same cap he wore during the accident. The defendant instantly began yelling at the victim, pointed to a document in his hand, and stated, "[L]ook what you caused." The victim was able to fully view the defendant's face on this date. At trial, and prior to the removal of the whiteboard, the victim testified that he recognized the person who appeared at his work to be the driver of the vehicle, not only by the person's voice, but because the person essentially identified himself as the driver involved in the December 28 accident. Moreover, after the accident, the driver had threatened the victim that if he filed a claim against the driver, the victim "would be in trouble with [the driver]." Accordingly, when the defendant appeared at the victim's place of work and challenged him to "go outside" in response to the victim filing a claim, it further confirmed that this person was the driver of the vehicle on December 28, and was making good on his promise.
Where, subsequent to the initial crime, the defendant placed himself in front of the victim for three to four minutes, associating himself with the accident and allowing the victim to familiarize himself with the defendant, it would make little sense to exclude the victim's in-court identification of the defendant as the person who caused the accident. Given these circumstances, we cannot say that the judge's decision to admit the victim's in-court identification of the defendant as the driver of the vehicle was a "clear error of judgment," such that it fell "outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Similarly, the judge did not abuse his discretion in concluding that, based on the victim's multiple interactions with the defendant, good reason justified his in-court identification of the defendant as the person who threatened him at his place of work on January 3. See Crayton, 470 Mass. at 242. Certainly, the defendant was free to explore on cross-examination any weaknesses in the victim's identification of the defendant, but ultimately it was up to the "jury to decide what weight to give to the identification." Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017).
2. Motion for a new trial. The defendant asserts that his motion for a new trial, based on ineffective assistance of counsel, was improperly denied. He contends that his trial counsel provided ineffective assistance by (1) failing to move to suppress his January 3 confrontation with the victim as an "especially suggestive" identification, and (2) requesting that the whiteboard procedure, rather than a standard in-court identification procedure, be used during trial. "We review the judge's denial of the motion for a new trial for 'a significant error of law or other abuse of discretion.'" Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
When the basis for a motion for a new trial is a claim of ineffective assistance of counsel, "the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020), quoting Commonwealth v. Martin, 467 Mass. 291, 316 (2014).
"[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004). The defendant argues that, if made, a motion to suppress the January 3 interaction between himself and the victim would have been allowed pursuant to common law principles of fairness articulated in Commonwealth v. Jones, 423 Mass. 99, 108-109 (1996). We are not persuaded.
Assuming that the January 3 interaction could properly be considered an out-of-court identification, it was made without police wrongdoing, or in fact police involvement, and would be analyzed under common law principles of fairness. See Jones, 423 Mass. at 109. "A judge applying those principles 'may decline to admit an unreliable eyewitness identification that resulted from a "highly" or "especially" suggestive confrontation with the defendant.'" Commonwealth v. McCray, 93 Mass. App. Ct. 835, 841 (2018), quoting Commonwealth v. Johnson, 473 Mass. 594, 598-599 (2016). "The defendant bears the burden of proving suggestiveness by a preponderance of the evidence," and if he satisfies this burden "the judge must weigh 'the probative value of the identification against the danger of unfair prejudice' arising from the suggestive circumstances." McCray, supra, quoting Johnson, supra at 600. "The 'ultimate measure' in this analysis will always be 'reliability.'" Commonwealth v. McWilliams, 473 Mass. 606, 616 (2016), quoting Johnson, supra at 604.
In an e-mail sent by trial counsel to defendant's appellate counsel, which was submitted with the defendant's motion for a new trial, trial counsel stated that she did not move to suppress the January 3 interaction because it was not an official identification of the defendant by the victim. An affidavit by trial counsel was also submitted with the defendant's motion for a new trial, but it did not include trial counsel's reasoning for failing to move to suppress the January 3 interaction.
The defendant contends that the circumstances of the January 3 confrontation were "especially suggestive" such that the victim's identification of him as the driver of the vehicle was unreliable. This claim is without merit. See McWilliams, 473 Mass. at 618. "The defendant controlled the circumstances in which he was identified. It was not scripted or orchestrated by anyone other than the defendant." Id. The mere fact that, on January 3, the defendant's behavior and clothing linked him to the accident "does not make the circumstances especially suggestive." Id. "[S]uggestiveness, by itself, does not mandate suppression." Johnson, 473 Mass. at 604. Where any suggestiveness did not arise from police conduct, an identification should be admitted unless "the identification is so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence." Id. at 602. This identification was permissible, and the factors the defendant raises to undermine its reliability, such as the brevity of the December 28 interaction, while relevant to the weight, would not render the identification inadmissible. See id. at 601-602. See also McWilliams, 473 Mass. at 618 (finding identification reliable where defendant created circumstances that allowed victim to view him for second time and identify him as perpetrator). The defendant's motion to suppress would have been unsuccessful.
The defendant also contends that his counsel was ineffective for requesting the use of the whiteboard procedure at trial because it was "inherently more suggestive than a standard in-court identification." However, in trial counsel's affidavit, she states that she made this request because she believed that the whiteboard procedure would prevent the victim from testifying on the stand about his observations of the defendant's appearance at trial, rather than his recollection of the defendant from the two interactions. We cannot say that the decision to do so was manifestly unreasonable when made, especially where the procedure allowed trial counsel to highlight on cross-examination any lapses in the victim's memory of the defendant. See Commonwealth v. Hudson, 446 Mass. 709, 716 (2006), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998) ("An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made"). Accordingly, the judge did not abuse his discretion or make an error of law when denying the defendant's motion for a new trial.
Conclusion. For the foregoing reasons, we affirm the judgments and the order denying the defendant's motion for a new trial.
So ordered.
By the Court (Neyman, Henry & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 14, 2021.