Opinion
20-P-1169
06-13-2022
COMMONWEALTH v. TIMOTEO HILARIO
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
A Superior Court jury convicted the defendant of indecent assault and battery (indecent A&B) - On appeal, the defendant challenges the introduction of the evidence through which the victim identified the defendant as her assailant. He also argues that there was insufficient evidence for the jury to find him guilty of indecent A&B. We affirm.
The jury also found the defendant guilty of attempted kidnapping, but that charge was subsequently dismissed and is not at issue in this appeal.
Background.
The recitation that follows is drawn from the victim's testimony, which the jury were entitled to credit.
At approximately 2:30 A.M. on June 24, 2015, the sixteen year old victim decided to walk across New Bedford to get to her boyfriend's house. While she was walking, a man whom she did not know drove by her and offered her a ride. After the victim rebuffed the man's multiple entreaties to get into his car, the man parked the car and began to accompany her on foot. During their walk together, the man told the victim that his name was "Tim . . . Matteo," and he later was identified as the defendant, Timoteo Hilario.
The defendant invited the victim to his home and inquired whether she wanted to drink tequila or to smoke with him. He also pressed her about how old she was, and when she responded that she was sixteen, he insisted to her that she had to be at least eighteen.
The victim told the defendant that she did not need his assistance, and -- about a half-hour into their walking together -- she tried to leave him behind. Shortly thereafter, the defendant put his arm around the victim and was "like hugging [her]," and he kissed her forehead. A struggle ensued, during which the defendant took the victim to the ground. During the struggle, the victim punched the defendant and began screaming, and the defendant put a finger inside the victim's mouth. Once the two were on the ground, the defendant lay on top of the victim while he had a hand on her buttocks. After the victim continued to struggle and scream and a witness walked by, the defendant fled. Various individuals in the area assisted the victim, including by calling 911.
2. The identification procedures.
Except as noted, the factual recitation regarding the pretrial procedures is drawn from the findings that the judge made following the motion to suppress hearing. The factual statements regarding the in-court identification are uncontested.
The police interviewed the victim shortly after the incident, still during the early morning hours of June 24, 2015. Based on the information she provided, a police officer called up a photographic image (photo) of the defendant on the "mobile data terminal" in his cruiser. The victim was shown the photo and she identified the man depicted there as the person who had attacked her.
Approximately two weeks later, the police undertook a second pretrial identification procedure. Specifically, they assembled and showed to the victim an array of seven photos of men who met the description she had given. The photograph of the defendant included in the array was the same one that she previously had been shown, although neither the officer who had put together the array, nor the one who showed it to the victim, was aware of this. When shown the photo array, the victim again selected the photo of the defendant as showing the man who had attacked her. When asked to rate her level of confidence in that identification, she assigned it an 8.5 on a scale of one to ten. The defendant filed motions to suppress both pretrial identifications, which were denied after an evidentiary hearing. Evidence of the two pretrial identifications was admitted at trial.
In his findings, the judge stated that the array included eight photos. Based on a copy of the array included in the record appendix, it appears undisputed that the array included seven photos. Nothing turns on this minor discrepancy.
The officer who created the photo array using standard protocol was aware that the victim previously had identified the defendant as her attacker from a photo she had been shown, but he believed that that earlier photo likely had come from a different database. It is undisputed that he did not check to see what photograph she previously had been shown.
The Commonwealth meanwhile filed a motion in limine seeking approval to ask the victim to identify the defendant in court. The judge allowed that motion based on his conclusion that the victim had made two "unequivocal" pretrial identifications (as stated in a margin note on the Commonwealth's motion). During the trial, the victim identified the defendant in court as her assailant.
Discussion.
1. Propriety of the identification evidence.
The defendant argues that the two pretrial identification procedures were unduly suggestive, and that the judge therefore abused his discretion in admitting evidence of them. We address each of the procedures in turn.
Asking a witness whether she can identify someone from a single photograph is considered comparable in its suggestiveness to a one-on-one identification. See Commonwealth v. Forte, 469 Mass. 469, 477 (2014). While such practices are generally disfavored because they are inherently somewhat suggestive, the case law recognizes that they nevertheless are appropriate in some circumstances. See, e.g., Commonwealth v. Austin, 421 Mass. 357, 361-362 (1995) ("good reason" to conduct one-on-one identification depends on "nature of the crime involved and corresponding concerns for public safety; the need for efficient police investigation in the immediate aftermath of a crime; and the usefulness of prompt confirmation of the accuracy of investigatory information, which, if in error, will release the police quickly to follow another track"). A defendant must prove not only that the identification procedure being challenged was "suggestive," but also that it was "unnecessarily suggestive." Commonwealth v. Johnson, 473 Mass. 594, 597 (2016), quoting Commonwealth v. Crayton, 470 Mass. 228, 235 (2014).
The circumstances present here fit easily within those in cases that allow the use of such procedures: the police showed the victim the single photo in the immediate aftermath of a violent attack on a minor, when the assailant was still at large. The judge plainly did not abuse his discretion in concluding that the one-photo procedure, while suggestive, was not unduly suggestive.
The defendant maintains that subsequent police actions demonstrate that the police were lackadaisical in trying to locate the defendant. Even were this established, we fail to see how it would affect our analysis of whether the police had an objectively reasonable basis for employing a one-photo identification procedure at the time that they did.
The defendant argues that the photo array was unduly suggestive because the police included in it the photo of the defendant that they previously had shown to the victim. See Commonwealth v. Carter, 475 Mass. 512, 518 (2016) (repeated showing of defendant's photo during identification procedure is disfavored). However, while we agree that the use of the same photo added some suggestiveness to the procedure, we are unpersuaded that the process thereby became so tainted to preclude the jury from hearing the evidence. Contrast Commonwealth v. Day, 42 Mass.App.Ct. 242, 249-250 (1997) (photo array procedure was impermissibly suggestive where, directly before it occurred, witness had opportunity to view same photograph of defendant in police flyer that stated that he had shot two people outside bar). In this regard, we note that the victim had interacted with her eventual assailant for a lengthy period of time prior to the attack, greatly reducing the chances that her selection of the defendant's photo from the array was a product of her having been shown that photo for a brief period weeks earlier. We conclude that the judge acted within his discretion in concluding that any suggestiveness here was not so acute as to render the photo array evidence inadmissible.
Whether the judge erred by allowing the victim to make an in-court identification presents a closer question. That is because the Supreme Judicial Court has declared that an in-court identification generally should not be allowed where the witness had made a "less than an unequivocal" identification in a pretrial identification procedure. See Commonwealth v. Collins, 470 Mass. 255, 265 (2014) . See also Commonwealth v. Dew, 478 Mass. 304, 315 (2017) (stating that unequivocal pretrial identification is one that is "clear and free from doubt"). Here, the victim stated that, on a scale of one to ten, her confidence that she had accurately identified her assailant in the photo array was about 8.5. Thus, the victim's testimony could be characterized as saying that she felt there was about a fifteen percent chance that she had wrongly identified her assailant from the photo array. Under these circumstances, the defendant's argument that the victim's identification of him in the photo array was "less than unequivocal" has at least some force. See Commonwealth v. Yang, 98 Mass.App.Ct. 446, 447-448 (2020) (in-court identification should not have been allowed where witness selected defendant's photo from photo array while expressing that he was "'[eighty] percent sure' about his identification" and where witness selected photo only after having been shown array twice).
Where a witness has not made an unequivocal pretrial identification, the Commonwealth can still ask a witness to make an in-court identification if it shows other "good reason" to do so. Collins, 470 Mass. at 265. However, the Supreme Judicial Court has stated that such "good reason will not often exist where a witness has earlier failed to make a positive identification," that this "usually would require a showing that the in-court identification is more reliable than the witness's earlier failure to make a positive identification and that it poses little risk of misidentification despite its suggestiveness" (quotation and citation omitted). Id. In the case before us, the judge concluded that the pretrial identifications were unequivocal and did not address whether other good reason existed to allow the in-court identification. Although the Commonwealth makes some arguments in this vein as an alternative for affirming the judge's allowing the in-court identification, its arguments are not persuasive.
We need not resolve this issue, however, because we conclude that even if it were error for the judge to allow the in-court identification, this did not amount to prejudicial error. See Commonwealth v. Ortiz, 487 Mass. 602, 608, 610-611 (2021) (prejudicial error review applies where defendant preserved claim that in-court identification should not have been allowed). Notably, the assailant provided the victim his name, which matched that of the defendant. In addition, during a telephone call from jail, the defendant effectively acknowledged that he had been involved in the incident. In these circumstances, we are confident that any error in the victim's being allowed to make an in-court identification "did not influence the jury, or had but very slight effect." Commonwealth v. Chalue, 486 Mass. 847, 858 (2021), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
In the recorded telephone conversation, the defendant told an unidentified person that he was "always trying to help people" and that this was "actually how [he] got into trouble just now."
2. Sufficiency of the evidence.
The defendant also argues that there was insufficient evidence that he committed an indecent A&B. This argument requires little discussion because in assessing the sufficiency of the Commonwealth's evidence, we view that evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). As noted, the victim testified that when the defendant was lying on top of her on the ground, he had his hand on her buttocks. It is well-established that the touching of someone's buttocks can render an assault and battery "indecent." See Commonwealth v. Mosby, 30 Mass.App.Ct. 181, 184 (1991) . The defendant therefore is left to argue that any placement of his hand on the victim's buttocks was not intentional but rather an inadvertent touching incident to their struggle. It suffices to say that there was ample evidence on which rational jurors could infer, beyond a reasonable doubt, that the defendant intended to place his hand on the victim's buttocks. The evidence that the defendant had committed an indecent A&B therefore was sufficient.
There was evidence that the defendant touched the victim in other respects, including by putting his arm around her, kissing her on the forehead, inserting a finger in her mouth, and lying on top of her while she was on the ground. In his reply brief, the defendant argues that such other touchings presented alternative theories for how he might have committed an indecent A&B, and that he is entitled to a new trial unless there was sufficient proof that he committed an indecent A&B under each potential theory. In other words, the defendant appears to be suggesting that once the Commonwealth presented evidence that the defendant touched areas of the victim's body other than her buttocks, it was required to prove that each additional touching itself constituted an indecent A&B (unless perhaps it disavowed that it was relying on such touchings or the jury issued special verdicts addressing each alternative). We need not decide whether any of the other touchings on its own rose to the level of an indecent A&B, because the defendant's premise is faulty. The various individual actions that the defendant took in assaulting the victim hardly constitute distinct theories of liability. Contrast Commonwealth v. Plunkett, 422 Mass. 634, 639 (1996) (vacating first degree murder conviction and allowing new trial where defendant was tried on premeditation and felony murder, and trial evidence was sufficient with respect to only one of those theories).
Judgment affirmed.
By the Court
The panelists are listed in order of seniority.