Citation Numbers: 464 Mass. 23, 979 N.E.2d 1095, 2012 Mass. LEXIS 1140
Judges: Ireland
Filed Date: 12/21/2012
Status: Precedential
Modified Date: 10/18/2024
On November 24, 2009, a jury convicted the defendant, Luis Alberto Montalvo Borgos, of murder in the first degree on the theory of deliberate premeditation. Represented by new counsel on appeal, the defendant argues error in (1) the
1. Facts. The jury could have found the following facts. On Friday, May 11, 2007, the victim; his girl friend, Sheena Castle; and their daughter, who was four years of age, went to Fall River to visit Castle’s mother, Sharon St. Pierre. St. Pierre lived in an apartment on the second floor of a three-story apartment building. Jose Mercado Matos, known as Jolky, and his then girl friend, known as Liz, lived in an apartment above St. Pierre.
After arriving at St. Pierre’s home, the victim, Castle, and their daughter went out to visit a friend. At about 9 or 10 p.m., St. Pierre went to bed. Meanwhile, in the apartment building next to St. Pierre’s, Valdo went to visit Eduardo Rosario, who lived in a third-floor apartment with his wife, Vilmarie. At around 10 p.m., the men started drinking and watched television in the living room. Vilmarie had gone to bed. As the evening progressed, Valdo became increasingly intoxicated.
Sometime after 1 a.m., now May 12, the victim, Castle, and their daughter returned to St. Pierre’s apartment building. For a while, the couple talked inside the victim’s automobile, which was parked in front of St. Pierre’s apartment. Eventually, the
Although the victim shut the alarm off within seconds, the noise agitated Valdo, who began shouting out of Rosario’s third-floor window. Valdo called the victim racist slurs and said, “I got something for you.” The argument lasted about fifteen minutes. From a window of her apartment, Liz tried to stop the argument. Hearing the noise, St. Pierre telephoned 911, but hung up. The victim, Castle, and their daughter went inside.
Soon thereafter police arrived at St. Pierre’s apartment to investigate the aborted 911 telephone call. St. Pierre lied to the officers, telling them that her granddaughter had made the telephone call while she was “playing with the phone.” The police left and St. Pierre locked the door. Within minutes St. Pierre and Castle saw the defendant, who they subsequently identified in a photographic array, break through the door, yell at the victim in Spanish, and point a gun at him. As St. Pierre and Castle fled, they heard multiple gunshots. The victim died as a result of gunshot wounds to his torso with perforations to his heart, lung, and pelvic bone.
St. Pierre and Castle were not the only persons who had information concerning the shooting. Just after the police left St. Pierre’s apartment, at around 2:50 a.m., Liz saw the defendant outside yell up to Valdo, who was still in Rosario’s apartment. Liz testified
Rosario’s account was similar. The defendant yelled up to
The police later learned about the defendant’s whereabouts prior to the shooting. The defendant had gone out for the evening with Yanelly, her sister Leisa, and Cordeiro to a nightclub in Providence, Rhode Island. On the way home, the defendant received a cellular telephone call and during the conversation stated, “Nobody mess with my boy,” and “I’m going to kill him.” The defendant had a silver gun in his hands. Yanelly told the defendant, “Think about it,” and not to kill anyone. Soon after the group returned to Yanelly and Cordeiro’s apartment, the defendant left.
Police recovered seven discharged .22 caliber cartridge casings and two live projectiles from St. Pierre’s apartment. Two spent .22 caliber rounds were recovered from the medical examiner’s office. The Commonwealth’s firearms identification expert opined that, based on his examination, all seven of the discharged .22 caliber cartridge casings recovered were fired from the same unknown weapon. There was no forensic evidence connecting the defendant to the shooting.
2. The photographic identifications. The defendant contends that his motion to suppress the out-of-court photographic identifications made by St. Pierre, Castle, Rosario, and Vilmarie should have been allowed because the process “created [an] impermissible risk of misidentification. ’ ’
a. Facts and procedural background. We summarize the facts found by the judge, supplemented where necessary by uncontested testimony from the evidentiary hearing on the motion to suppress.
St. Pierre also, on many occasions, had observed the defendant outside her apartment building. She mistakenly believed, based on information from an acquaintance, that the defendant’s name was “Jose.” She observed Jose “a lot,” seeing him “once or twice a week.” She knew him to be associated with Valdo, the person who had started arguing with the victim, whom she knew to be the twin brother of the man who resided in the apartment above her (Jose).
St. Pierre and her nephew returned to her apartment building. While they were outside, she saw the defendant pass by and heard him say something to her, but did not understand what he said. Police arrived at St. Pierre’s apartment within minutes and began interviewing witnesses. St. Pierre told them that she knew who did it and thought that the shooter’s name was Jose, but was not certain.
Police transported St. Pierre, Castle, and the granddaughter to a police station, where they were placed in separate rooms. The officers obtained information about the shooter, namely that he was a Hispanic male in his twenties who was between five feet, six inches and five feet, eight inches tall and had been wearing “three-quarter length” shorts and a baseball hat. Based on this information, that day and over the weekend, officers showed a series of photographs (none of which was of the defendant) to St. Pierre and Castle. Both selected Rosario’s photograph as being someone who looked like the shooter.
After unsuccessfully attempting to contact Rosario, police composed a flyer displaying Rosario’s photograph and indicated that he was wanted for questioning. After seeing the poster, Rosario went to the police station. At first, Rosario denied having any knowledge about the shooting. Eventually he gave the defendant’s name (Albert) to the officers and explained that, before the shooting, the defendant had yelled up to Valdo and asked whether he was having a problem with the victim. After Valdo responded affirmatively, the defendant stated, “Well,
Rosario told the officers that the defendant was Puerto Rican, had attended a party he had hosted, and had been staying at the apartment complex for a couple of weeks. Rosario described the defendant as a Hght-skinned Hispanic male with short dark brown hair and brown eyes who was between five feet, six inches and five feet, eight inches tall. He also stated that the defendant had tattoos on his forearms and had been wearing a white T-shirt and shorts. Officers had Rosario look at hundreds of photographs (the defendant’s photograph was not among them) and although he was able to identify photographs of Valdo and his brother, he did not see the defendant’s likeness.
In their investigation, officers made contact with Valdo, who admitted that the defendant was a friend of Jose. They also learned that Jose had brought the defendant to a rental store to obtain some furniture. From the rental store, police obtained a photocopy of the defendant’s driver’s license from Puerto Rico and confirmed that they did not have a photograph of the defendant in their system. On May 24, officers received a photograph of the defendant attached to an electronic mail message. Detective Timothy Albin was given this photograph and was asked to generate a photographic array including five other photographs that contained pictures of white males (including Hispanic males) with black hair who ranged between five feet, five inches and five feet, ten inches in height and were between twenty-five and thirty-five years of age. All six photographs in this array were black and white. Detective Albin “crop[pedJ” the photograph of the defendant so that it would be the same size as the other ones used the array. In this photographic array, the defendant’s photograph was the second photograph. The only marking on each photograph was a number.
Detective John McDonald showed this array to several witnesses. After telling Rosario and Vilmarie that they were going to be asked to look at some photographs, Detective McDonald instructed them that they would be kept apart and directed Vil-marie into a bathroom. Detective McDonald instructed Rosario
Rosario and Vilmarie exchanged places. She was only being asked whether she recognized anyone. Detective McDonald gave her the same instructions that he had given her husband. After looking at the six photographs, Vilmarie selected the defendant’s photograph as the person she knew as Albert.
Before showing the photographs to St. Pierre, Detective McDonald, who was accompanied by another officer, instructed her to focus her attention to the facial characteristics reflected in the photographs, noting that a person’s hair and facial hair may change. The six photographs were placed on a surface for St. Pierre to examine. She looked at them and pointed to the one of the defendant, stating that it “looks like the guy,” and remarking that her selection was based on the man’s eyes. When asked whether anything was different about the shooter, she replied that his hair was shorter. Detective McDonald then used a piece of paper to block out the hair in the photograph. St. Pierre confirmed her identification, responding that the man in the photograph had the “same eyes,” and again adding that she could not forget the shooter’s eyes. St. Pierre testified that no one pressured her to make this identification.
On May 25, 2007, police asked Castle to come to the station. Inside, Detective McDonald told her that he was going to show her some photographs to see whether she recognized the man
After Castle’s identification, police obtained a warrant for the defendant’s arrest and arrested him on June 5, 2007. All the photographic identifications discussed above took place before the defendant’s arrest.
The motion judge correctly concluded that, although it would have been preferable for the police to have used more than six photographs in the array, the number of the photographs in the array was permissible. See Commonwealth v. Walker, 460 Mass. 590, 604 (2011) (absent exigent or extraordinary circumstances, photographic array, whether simultaneous or sequential, must have minimum of six photographs). The judge also detailed the similarities and differences between the photographs of the five men and the photograph of the defendant, concluding that none of the differences was so pronounced to render the array conducive to irreparable misidentification.
“For a motion to suppress a photographic identification to succeed, ‘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.’ ”
c. Discussion. On appeal, the defendant argues that the identifications should have been suppressed because St. Pierre and Castle were unreliable witnesses and had selected the photograph of someone other than the defendant in arrays shown to them earlier. In particular, the defendant maintains that St. Pierre was unreliable because she lied to police about telephoning 911 prior to the shooting; was inconsistent about the name of the shooter; was inconsistent in her testimony about the duration of time she had observed the defendant around her apartment prior to the shooting (and her testimony on that point was inconsistent with Rosario’s); and, in an earlier array, had selected a photograph of a person whom she “knew” was not the shooter.
In challenging Castle’s reliability, the defendant points to inconsistencies in her testimony about having seen the defendant before the shooting; her previous erroneous identification; her exhausted state immediately after the shooting; the fact that she had only seen the shooter for a “few seconds”; and the lack of strength in the identification she made of the defendant, only remarking that the defendant’s photograph “looked like” the shooter. We reject these challenges. There was testimony, apart from how often Castle had seen the defendant prior to the shooting, that she certainly had seen him prior thereto and also for about thirty seconds inside the apartment just before the shooting. Thus, the judge’s implicit conclusion that the victim’s girl friend had sufficient time to see the defendant before the shooting is supported by the record and does not call for a different analysis by us. Although the judge did not expressly analyze the effect of Castle’s exhausted condition at the time of the shooting, her identification of the defendant was made several days later and there was no evidence or argument that she then was physically or emotionally unable to make an identification. Concerning the strength of her identification, the defendant did not challenge this particular below. The record belies the defendant’s argument,
The defendant also points to certain facts as establishing an unconstitutionally suggestive identification procedure. He asserts that these identification witnesses knew either that a suspect was in custody, that a suspect’s photograph would be in the array, or that his photograph would be a Puerto Rican document. Although there was conflicting testimony concerning these facts, the judge, based on his conclusions, implicitly credited the testimony of Detective McDonald that he did not tell the witnesses that he was awaiting a photograph from Puerto Rico, that there was a suspect in custody or in mind, or otherwise improperly suggest that the shooter’s photograph was in the array. Last, we reject the defendant’s argument that the police brought unreasonably suggestive attention to the defendant’s photograph by covering his hair. The uncontested testimony at the evidentiary hearing was that the police did not “block” the defendant’s hair as depicted in the photograph until after a positive identification had been made by the witness, which initial identification did not draw attention at all to the defendant’s hair. See Commonwealth v. Mobley, 369 Mass. 892, 896 (1976) (weight may be given to evidence that witness did not rely on suggestive element in making identification). We note that the police did not block the defendant’s hair at all with regard to Castle’s identification. This subsequent action by the police done after the initial identification, even if susceptible to criticism, was not so suggestive as to deny the defendant due process of law.
There was no error in denying the motion to suppress the identifications of St. Pierre, Castle, Rosario, and Vilmarie. We come to this conclusion fully cognizant of the fact that the officers who conducted the identification procedures did not follow the protocol that we adopted in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009).
3. Admission of evidence that certain witnesses feared for their lives. At trial, during the redirect examination of Detective McDonald, the prosecutor elicited testimony that Rosario and Vilmarie were “put up in a hotel” because they feared for their lives. There was no objection. The defendant argues that the admission of this testimony, along with the prosecutor’s reference to it during his closing argument, created a substantial likelihood of a miscarriage of justice because the jury would have inferred that the defendant had threatened the witnesses. See Commonwealth v. Martinez, 431 Mass. 168, 174 (2000) (error to permit witness’s testimony that she had been threatened because prejudicial effect of that testimony outweighed its probative value).
There was no error. The prosecutor elicited the testimony in response to the defendant’s suggestion, made during the cross-examination of Detective McDonald, that the Commonwealth had paid for Rosario and Vilmarie to have a hotel room in exchange for their testimony. “The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination.” Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978). See Commonwealth v. Arriaga, 438 Mass. 556, 577 (2003) (defendant “essentially invited the Commonwealth to address the issue on redirect examination, and the
Similarly, the prosecutor’s reference in his closing argument to the fact that Rosario and Vilmarie moved to a hotel because they were afraid was a proper response to the defense argument that these witnesses got “a hotel” and “[their] rent paid” in exchange for their testimony. See Commonwealth v. Anderson, 411 Mass. 279, 286 (1991) (not improper for prosecutor to respond to arguments raised by defense). There was no error.
4. Admission of testimony that the defendant sold drugs. We reject the defendant’s argument that the admission of testimony by St. Pierre and Yanelly that the defendant sold drugs created a substantial likelihood of a miscarriage of justice,
5. G.L. c. 278, § 33E. There is no basis for relief pursuant to G. L. c. 278, § 33E.
Judgment affirmed.
The defendant was staying with them.
We will refer to some witnesses by their first names.
Valdo’s girl friend was the sister of Jolky’s girl friend.
Yanelly, prior to the trial, went by the name Monica Irene because there were warrants out for her arrest. Neither she nor her sister, Leisa, who also testified at trial, was truthful initially about Yanelly’s true identity.
Liz initially lied to police and created a false alibi for the defendant. After she was arrested, she told the “whole story.” She pleaded guilty to a charge of intimidating a witness and received probation, on condition that she testify at trial.
Valdo was too drunk to recall what had occurred. He testified that he knew the defendant, but not “that well,” and that he never had a conversation with him. Valdo did not hear any shots.
Yanelly and Leisa separately identified the defendant as the person who had been with them before the shooting.
The judge who heard the motion to suppress the identifications was not the trial judge. He allowed the motion with regard to the out-of-court photographic identification made by St. Pierre’s nephew.
In support of his argument on appeal, the defendant cites to the trial testimony of various witnesses. Our review, however, is based on the facts developed at the suppression hearing, and not at the trial. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 795 (2009); Commonwealth v. Rivera, 441 Mass. 358, 367 (2004), quoting Commonwealth v. Ramos, 402 Mass. 209, 216 (1988) (“Evidence adduced at trial but not before the motion judge . . . cannot be determinative of the propriety of the motion judge’s decision”).
Vilmarie recognized the defendant as someone who had been “around” her apartment for the past “[o]ne or two months.”
We have looked at the photographic array, and based on our review, agree with the judge that the men depicted therein possessed reasonably similar features and characteristics.
Regarding the question of admissibility where a defendant satisfies his burden, a different analysis is applied under the United States Constitution. See Commonwealth v. Walker, 460 Mass. 590, 599-600 n.13 (2011). Here, the defendant’s suppression motion asserted violations of both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Because the standard for the admissibility of identification evidence under the Massachusetts Constitution is more favorable to a defendant than the standard under the United States Constitution, we need not consider the defendant’s Federal constitutional claims concerning the out-of-court identifications. See id.
In Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009), we articulated a protocol going forward to be used to reduce the risks of unnecessary suggestiveness and misidentification when a photographic array is shown
The defendant did not object to the admission of this testimony.
It is worth noting that it was expected from the outset of the trial that