Commonwealth v. Ferreira , 77 Mass. App. Ct. 675 ( 2010 )

Cypher, J.

The defendant, Kris N. Ferreira, was convicted by a Superior Court jury in April, 2008, of unarmed robbery of a person sixty years of age or older, G. L. c. 265, § 19(a); and, following a bench trial, was found guilty of being an habitual offender. The defendant argues that the trial judge erred in denying his motion for a required finding of not guilty, and that he received ineffective assistance of counsel during his trial. He also claims that the prosecutor exhibited prosecutorial misconduct in his opening statement, closing argument, and cross-examination impeachment of a defense witness. We affirm.

Factual background. A jury could find the following. On November 5, 2006, the victim was working a part-time job delivering pizza for Village Pizza & Seafood (Village Pizza) in the city of Fall River. He was sixty-one years of age at the time.

On this date, at around 7:00 p.m., the victim left Village Pizza to deliver a pizza to an address on June Street in Fall River. When he arrived, he parked his car and was walking up the street searching for the address when he heard a male voice say something to the effect of, “There he is.”

The victim observed two males from twenty to twenty-five feet away. At trial, he described the men as follows: assailant number 1 as being approximately five feet, ten inches tall, weighing approximately 150 to 160 pounds, wearing a hooded sweatshirt with the hood on his head, and jeans; assailant number 2 as being five feet, ten or eleven inches tall, weighing 175 to 190 pounds, wearing a jacket and jeans.

The two men approached the victim, walking side by side, and then pushed him to the ground from behind. The victim fell to his knees, and ended up face down on his abdomen. The victim indicated at trial that he was pushed by the hooded assailant, while the jacketed assailant remained behind and to the side of the hooded assailant.

The victim believes that the jacketed assailant then said something along the lines of, “We don’t want to hurt you. Just give us what’s in your pockets, and we’ll let you go.” The hooded assailant put his knee on the victim’s back, pulled out a paring knife, and showed it to him.

The hooded assailant, under instructions from the jacketed assailant, took $125 and a wallet from the victim, and they told him to stay on the ground for a couple of minutes. The victim heard them run away, and he got up. Next he heard a car start in the distance and drive off. He then went to a nearby residence on June Street to telephone the police.

Fall River police Officer Brett Kimball responded to the scene, and after the victim provided descriptions of the event and the assailants, the officer went to Village Pizza to investigate, but was unable to obtain the telephone number from where the call for delivery had been received. Kimball then returned to the police station. Later that same evening, Officer Kimball returned to Village Pizza with two six-person photographic arrays of potential suspects.

The victim picked one suspect from each photographic array — Shawn Pacheco (as the hooded assailant), and the defendant (as the jacketed assailant) — as the two males who had robbed him. At trial, the victim claimed that he had been one hundred percent sure about his identification of the hooded assailant, but had been only eighty percent sure about his identification of the jacketed assailant. Also at trial, he could not be sure if the jacketed assailant was in the courtroom.

Discussion. 1. Motion for a required finding of not guilty. The Commonwealth proceeded on a joint venture theory, involving the defendant and Pacheco. Pacheco testified, after a grant of immunity, that he had robbed the victim with another man, not the defendant. The defendant argues that his motion should have been allowed because the evidence failed to identify him as the second assailant, questioning the police photographic array procedure from which the victim identified him, and pointing out that the victim was unable to identify him in the courtroom at trial. He also asserts that the Commonwealth relied on “extraneous evidence” of police testimony that the defendant and Pacheco often had been seen together.

Viewed according to Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), there was sufficient evidence that the second assailant was the defendant. The victim parked his car and walked along the street, looking for the address he had been given. He heard a male voice say, “There he is.” He saw two young men come out from between two houses, and walk toward him. One of the men pushed the victim to the ground and took his wallet and money.

The victim identified both Pacheco and the defendant from photographic arrays prepared by the police. The arrays were presented to the victim at Village Pizza within one and one-half hours of the incident.¹ The victim had no hesitation in selecting the photograph of Pacheco, and stated that he was eighty percent sure of his choice of the photograph of the defendant. Cf. Commonwealth v. Cong Due Le, 444 Mass. 431, 441 (2005) (“Prior identification evidence is of substantive value, even in the absence of any in-court identification, because it has occurred under nonsuggestive circumstances and closer in time to the offense”). To the extent that there were any inconsistencies or contradictions in the victim’s testimony or identifications,² they only would affect the weight and credibility of the evidence, which are matters within the jury’s province to resolve. Compare Commonwealth v. Platt, 440 Mass. 396, 401 (2003).

There was testimony that the police were familiar with both Pacheco and the defendant, and that the two frequently had been seen together. That testimony was admissible, to be considered with other evidence bearing on the issue of the second assailant’s identity. The defendant’s motion for a required finding properly was denied.

Because there was contradictory evidence that the defendant was not present at the incident — from Pacheco, as well as from Robert Dias and an alibi witness, Kristin Bennett, who both testified in the defendant’s case — we consider whether at the close of all the evidence the Commonwealth’s evidence deteriorated. We conclude that it did not. Contradictory evidence does not indicate deterioration, which occurs when the Commonwealth’s evidence is “shown to be incredible or conclusively incorrect.” Commonwealth v. Nolin, 448 Mass. 207, 216 (2007), citing Commonwealth v. Pike, 430 Mass. 317, 323 (1999). The defendant’s renewed motion for a required finding at the close of all the evidence properly was denied.

2. Ineffective assistance of trial counsel. The defendant makes several assertions that trial counsel was ineffective, without providing the proper record for review in this direct appeal. See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007) (such claims “should normally be raised through a motion for a new trial” with appropriate factual record, including “explanation by trial counsel for his actions”). Accordingly, we summarily dismiss his assertions as follows. The defendant asserts that trial counsel should have moved to suppress the photographic identification evidence. The defendant fails to make the showing required to dispute the identification procedures, or to argue that those procedures were defective. See Commonwealth v. Watson, 455 Mass. 246, 250 (2009) (to succeed in suppressing photographic identification, defendant must show that procedures employed were “unnecessarily suggestive” and “conducive to irreparable misidentification”). This argument advanced by the defendant also is addressed, supra and infra. There is no meaningful argument accompanying two one-sentence assertions that trial counsel should have objected to the Commonwealth’s opening statement and closing argument. There is no merit in the defendant’s assertion that the prosecutor “baited” Dias into disclosing that he was incarcerated during the trial. The judge promptly struck Dias’s voluntary response that he was in jail, and instructed the jury to disregard the answer.³ The defendant fails to show how a request for an instmction pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485 (1980), would have accomplished anything materially better for the defense.

3. Closing argument. The defendant complains that the prosecutor improperly argued a statistical basis in support of the victim’s photographic identification of the defendant as the second assailant. The prosecutor began by referring to defense counsel’s argument that the victim’s statement that he was “eighty percent sure” of his identification of the defendant was not sufficient to meet the standard of proof beyond a reasonable doubt. Defense counsel had stated: “[I]f you go by [the victim’s] eighty percent, that’s reasonable doubt. ... If that’s all we had to go on, that would be enough for reasonable doubt.” That was not, the prosecutor stated, what the case was all about, and that the jury must decide whether the victim was “one hundred percent right.”

The end of the prosecutor’s closing argument was directed at the victim’s identifications of Pacheco and the defendant from the photographic arrays presented by the police. The prosecutor emphasized that the victim had had a good opportunity to see the pair as they approached him on the street, and selected the photograph of each one from the arrays with little hesitation. Then, the prosecutor stated:

“And who does he pick? . . . Two men who’ve been seen hanging around together .... The odds of picking two men out of two arrays with forty-nine different combinations who are that type, one out of forty-nine. Two percent. Two percent. What are the odds that [the victim] would have picked two different people, some other combination? Ninety-eight percent. I call that proof beyond a reasonable doubt.”

The defendant claims that the “unfounded and purportedly mathematical” argument infringed on the jury’s fact-finding role to determine the correctness of the identification of the defendant through the photographic array. While the prosecutor’s enthusiasm for the victim’s decisive selections of the photographs and his (the prosecutor’s) attempt to rebut defense counsel’s argument is understandable, the probability-based argument was ill-founded. “The idea of reasonable doubt is not susceptible to quantification; it is inherently qualitative.” Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 806 (1985), and cases cited. Moreover, as our time-honored standard states, and as the judge instructed: “[I]t is not sufficient to establish a probability, though a strong one arising from the doctrine of chances . . . ; but the evidence must establish the truth of the fact to a reasonable and moral certainty.” Commonwealth v. Webster, 5 Cush. 295, 320 (1850). The selection of photographs is not comparable to the drawing of playing cards from a shuffled deck. The photographic identification process is designed to promote the objective identification of a suspect by means of a victim’s perception and memory, subject to corroboration and challenge in the trial process.

“We consider the [prosecutor’s] remarks in the context of the entire argument, and in light of the judge’s instructions[⁴] to the jury and the evidence at trial.” Commonwealth v. Francis, 450 Mass. 132, 140 (2007). There was no objection by the defendant, and no comment from the judge. The lack of objection by experienced counsel is some indication that the argument was not unduly prejudicial. See Commonwealth v. Montez, 450 Mass. 736, 748 (2008). The prosecutor’s probability-based argument took about two pages of his eleven-page argument, where he principally argued that there was evidence corroborating the defendant’s participation with Pacheco. He referred to Pacheco’s plea hearing where he admitted to facts that he and the defendant had robbed the victim, arguing that Pacheco then changed his story at the within trial by claiming Dias was with him during the robbery.⁵ Dias testified at trial that he accompanied Pacheco; the prosecutor argued in detail why neither Dias nor Bennett, the alibi witness, should be believed.

Viewed in the entirety of the argument, we think the prosecutor’s probability assertions were recognized by the jury as hyperbole, and did not detract from the jury’s duty to follow the judge’s instructions, which included proper instructions on identification and the Webster definition of reasonable doubt. In the circumstances of this case, even if there was error in the prosecutor’s closing argument, it did not create a substantial risk of a miscarriage of justice.

Judgment affirmed.

1 There is no merit in the defendant’s assertion that trial counsel should have objected to the admission in evidence of the photographic arrays because they constituted identification based on hearsay resulting from a conversation between two police officers. There is nothing in the testimony of Officer Kim-ball, who prepared the photographic arrays, indicating that any hearsay was a factor in his preparation of the arrays.

Officer Kimball testified that he obtained photographs for the arrays through a computer search by entering the victim’s physical descriptions of the assailants.

Officer Kimball also testified that, when he presented to the victim the two arrays of six photographs each, the victim followed his instructions to look through the photographs twice before making a selection, that he “immediately” identified Pacheco in the first array, and that he “immediately” selected the photograph of the defendant in his second look at the second array.

2 The defendant asserts that the victim could not see all of the second assailant’s face, misleadingly describing him as remaining behind the first, “who, in turn, was behind the [victim].” The defendant overlooks evidence that the two approached the victim, side by side, from twenty to twenty-five feet away until they were within an arm’s length of him. Then, Pacheco pushed the victim to the ground from behind, while the second assailant stood beside or behind Pacheco. Although the victim testified that it was dark after sunset, he also stated that the street was not dimly lit. There is no indication in the record that the defendant challenged the victim’s view of the two approaching, or his physical descriptions of them.

3 It was not error or misconduct for the prosecutor to impeach Dias by remarking that he faced charges with potential penalties of life sentences. See Commonwealth v. Smith, 26 Mass. App. Ct. 673, 678 (1988). Furthermore, the judge gave a specific instruction properly limiting the jury’s use of the pending charges. See Commonwealth v. Daley, 439 Mass. 558, 564 (2003).

4 The judge instructed that closing arguments are not evidence.

5 The dissent points out, post at 686 n.7, that the judge instructed that what Pacheco said during the plea hearing was admitted only for impeachment purposes, and not for the truth of what was said. Nonetheless, during Pacheco’s direct testimony, and in cross-examination, he stated that Dias was with him and “[n]ot Kris Ferreira.” This was a sufficient basis for impeachment, but even if that is questionable, the issue was not raised during trial or on appeal.