Opinion
No. 14–P–1631.
10-06-2016
COMMONWEALTH v. Adam NAYLOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his second motion for new trial. After a jury trial in the Superior Court, the defendant was convicted of two firearm offenses and assault and battery by means of a dangerous weapon upon Lawrence Akers. The defendant was acquitted of the assault and battery by means of a dangerous weapon upon Prez Cope. See Commonwealth v. Naylor, 73 Mass.App.Ct. 518, 519 & n. 1 (2009). The defendant appealed and moved for a new trial. A judge, who was not the trial judge, denied the motion without a hearing. See id. at 521 & n. 8. After our consideration of the consolidated appeal to this court, we vacated the order denying the motion and remanded it for an evidentiary hearing on whether counsel was ineffective for failing to elicit particular identification evidence. Following the hearing, the judge again denied the motion in a written memorandum of decision and after the defendant again appealed, we affirmed the order denying the motion. See Commonwealth v. Naylor, 82 Mass.App.Ct. 1124 (2012).
Specifically, the defendant argued that counsel was ineffective for failing to elicit evidence that he had long hair or braids when he was arrested about one month before this incident, as he had at trial, and juxtapose that evidence to the photograph selected by the victim from the photographic array depicting the defendant with short hair. The defendant also challenged the admission of prior statements of the alibi witnesses; the jury instruction on the element of intent on the charge of assault and battery by means of a dangerous weapon; and that the evidence was insufficient to show the gun used was a handgun, rather than a shotgun or rifle. See Naylor, 73 Mass.App.Ct. at 525.
In his second motion for new trial, which is the subject of the defendant's current appeal, the defendant argued that (1) the testimony of the identification witness should have been excluded because it was the product of an unduly suggestive identification procedure; (2) the evidence was insufficient to either prove his identity as the shooter or the intent element of assault and battery by means of a dangerous weapon; and (3) the inconsistent verdicts require the conclusion that the evidence was insufficient to sustain any of the defendant's convictions.
With respect to the first and second issue, having omitted such claim from the trial motion, the defendant impermissibly includes on appeal that appellate counsel was ineffective for not raising these issues on direct appeal. The omission is of no consequence however, because the standard of review applied to the defendant's claims, all of which are presented here for the first time on collateral review is at least as favorable, if not more favorable, than the standard applicable to a claim of ineffectiveness. See generally Commonwealth v. Amirault, 424 Mass. 618, 637–641 (1997) ; Commonwealth v. Randolph, 438 Mass. 290, 293–296 (2002) ; Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
The same judge who denied the defendant's first motion for new trial denied the second motion by brief endorsement on the motion itself. The defendant's appeal follows, and while the issues presented substantially overlap those adjudicated in the first motion for new trial and on direct appeal, they are not identical. Therefore, we briefly address the issues presented. We do not repeat the facts of the case that have been previously set forth in Naylor, 75 Mass.App.Ct. at 519–520, but discuss the relevant details in relation to the issues raised.
1. Pretrial identification. The police compiled a photographic array based on descriptions provided between Cope and Akers (the two victims of the shooting) within twenty-four hours of the shooting. “Akers told Cope that he thought the shooter looked like a person he knew as Leonard Naylor, but younger, and Cope stated that he had gone to school with a younger brother of Leonard's named Adam.” Naylor, 82 Mass.App.Ct. at 1124. Based on this information, the police selected a photograph from their system of Leonard's younger brother, the defendant, and placed it together with photographs of seven other individuals who closely resembled Naylor. Police showed the array to Akers, who selected the photograph depicting the defendant without hesitation or prompting.
On appeal, the defendant asserts that this procedure was unduly suggestive and produced an unreliable identification because it contained only eight photographs; it did not include a photograph of his older brother, Leonard; and it did not include depictions of “light-skinned black males,” as had been described by Akers and his passengers. To prevail on appeal, the defendant must demonstrate a likelihood that the pretrial identification would have been suppressed, which requires proof by a preponderance of the evidence that the procedure employed by the police was the product of improper suggestion. See Commonwealth v. Cavitt, 460 Mass. 617, 631–632 (2011), citing Commonwealth v. Payne, 426 Mass. 692, 694 n. 3 (1998) ; Commonwealth v. Arzola, 470 Mass. 809, 813 (2015). “Where an identification procedure is not impermissibly suggestive, a pretrial identification is admissible without any further showing.” Commonwealth v. Watson, 455 Mass. 246, 251 (2009). We see no suggestion of impropriety in the array compiled here.
First, decisional law has made clear that eight photographs are sufficient to constitute an array. See, e.g., Commonwealth v. Jackson, 419 Mass. 716, 727–730 (1995). Second, the police are not obligated to use any particular photograph. Furthermore, the photographs assembled here appeared to comport with the requirement that all the individuals depicted in them be reasonably similar. See Commonwealth v. Silva–Santiago, 453 Mass. 782, 794–795 (2009). Third, the defendant points to no requirement, nor are we aware of any, that the skin tone of those depicted in the photographs must match precisely the skin tone described by the eyewitnesses. Finally, we see no evidence of any suggestion or attempt by the police to sway the witness in his selection. Absent any such evidence, the defendant has failed to demonstrate, as he is required to, that the identification procedure employed by the police was unduly suggestive.
2. Sufficiency of the evidence. Contrary to the defendant's claim, Akers's identification of the defendant as the shooter was sufficient to establish his identity. That the jury acquitted the defendant of also shooting Cope (a passenger in Akers's car who could not identify the individuals in the car from which shots were fired) does not alter this conclusion. Last, because motive is not an element of the crime, the lack of proof as to motive is of no consequence. See Commonwealth v. Brown, 376 Mass. 156, 164 (1978).
3. Inconsistent verdicts. According to the defendant, the evidence showed that there was only one shooter and that that shooter fired at both Cope and Akers virtually simultaneously. The defendant argues in turn, that the acquittal with respect to Cope demonstrates that the evidence was insufficient to identify the defendant as the single shooter and therefore his convictions related to shooting Akers must be reversed. We disagree, as the evidence of a potential second shooter is not clear.
The record shows that a vehicle with tinted windows and multiple occupants pulled up to the left side of the vehicle driven by Akers as he was stopped at a red light. See Naylor, 73 Mass.App.Ct. at 519. When the light turned green and Akers began to drive forward, he and the passenger in the other vehicle both rolled down their windows. Ibid. At the same time, Akers reached to the right to turn down his radio volume. Ibid. “He then heard gunshots. Akers saw the face of the front passenger and saw a flash coming from what he thought was a gun in the passenger's hand; Cope[, who was in the front passenger seat of Akers's car,] saw flashes, but he did not see the passenger's face. The exchange lasted a few seconds. Both Akers and Cope were struck by bullets in their legs.” Ibid.
Because the record as to whether there was an additional shooter is unclear, the verdicts are not necessarily inconsistent. Furthermore, factually inconsistent verdicts do not provide a basis for relief. See Commonwealth v. Hamilton, 411 Mass. 313, 323–324 (1991) ; Commonwealth v. Tennison, 440 Mass. 553, 566 (2003). In addition, this is not a case involving legally inconsistent verdicts. See and compare Commonwealth v. Gonzalez, 452 Mass. 142, 151 n. 8 (2008) (A legally inconsistent verdict arises “when there exists no set of facts that the government could have proved in the particular case that would have resulted in the verdict at issue”). In sum, for the reasons stated, we see no reason to disrupt the judge's denial of the defendant's second motion for new trial.
Order denying second motion for new trial affirmed.