Opinion
No. 13–P–531.
05-09-2016
COMMONWEALTH v. Jorge PEREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of larceny from a person, alleging error in the judge's giving of a consciousness of guilt instruction and in her decision to allow the victim to make an in-court identification. We affirm.
Background. We briefly summarize the trial evidence. On the evening of June 7, 2011, the victim was walking through Gore Park in Cambridge when he passed by two men he did not know. The men tried to get the victim's attention, but he ignored them and kept walking. The two men caught up to the victim and demanded “whatever [he] had on [him].” When the victim refused, one of the men (whom the victim identified in court as the defendant) lifted his shirt to reveal a steak knife tucked into his pants. The victim gave the men sixty dollars and his “iPhone,” then walked out to Cambridge Street. He saw the two men walk back into Gore Park. The victim flagged down a friend who happened to be driving by, and telephoned the police. The police arrived approximately five minutes later, and the victim described the men as “[t]wo Hispanic males about 5' 7? give or take,” wearing cargo shorts and hooded sweatshirts.
The victim could see that the other man had a knife as well.
Cambridge police officers Michael Taylor and Tom Maldonado responded to the scene. About forty-five minutes after receiving the call, the officers identified two men walking one block away from Gore Park who fit the description given by the victim. The officers stopped their police cruiser, got out, and asked to speak with the two men, one of whom was the defendant. Both men stopped and raised their hands before the defendant “took off running.” Taylor chased the defendant while Maldonado stayed with the second man. As he was giving chase, Taylor saw the defendant reach down and remove an object from his person, which he threw to the ground. Taylor “heard a metallic clanging sound,” and eventually lost sight of the defendant. Maldonado later recovered a knife from a gutter in that location, and the victim identified it in court as the same knife that the defendant had shown him.
Officer Maldonado recovered a large kitchen knife from this man.
Approximately one and one-half hours after the officers lost sight of the defendant, they arrived at a residence located directly across the street from Gore Park. In a trash barrel near the front door of the home they found an iPhone, which the victim later identified as his, and, after searching the house, they located the defendant crouched down behind a door.
Discussion. 1. Consciousness of guilt. Citing Commonwealth v. Groce, 25 Mass.App.Ct. 327 (1988), the defendant argues that the judge committed reversible error by instructing the jury on consciousness of guilt. We disagree.
“[A] consciousness of guilt instruction regarding flight is generally inappropriate where there is no dispute that the crime was committed by the person fleeing from the crime scene, and the only contested issue is the identification of the defendant as the fleeing offender.” Commonwealth v. Bastaldo, 472 Mass. 16, 33–34 (2015). Here, Taylor and Maldonado identified the defendant as the person who fled upon being encountered near the crime scene about forty-five minutes after the crime, and the contested issue was whether it was the defendant who committed the crime. Evidence that the victim's iPhone was found outside of the residence where the defendant was discovered hiding and that the defendant discarded the perpetrator's knife while running from the police support an inference that the defendant fled “because he fe[lt] guilt concerning th[e] act” that he committed, id. at 33, quoting from Commonwealth v. Toney, 385 Mass. 575, 584 (1982), and we see no error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Dwyer, 22 Mass.App.Ct. 724, 729 (1986).
We note that the defendant requested the instruction and that he did not object when the judge gave it.
2. In-court identification. Before trial, the judge allowed the defendant's motion in limine to exclude any in-court identification of the defendant by the victim. However, in response to the prosecutor's question, “Did anything happen while you were walking through the park?” the victim stated that he “walked by Mr. Jorge Perez and the other suspect.” After the victim again referred to the defendant by name and the judge held a sidebar conference (the majority of which the transcript reports as indiscernible), the victim was allowed to make an in-court identification. Citing Commonwealth v. Crayton, 470 Mass. 228 (2014), and Commonwealth v. Collins, 470 Mass. 255 (2014), the defendant argues error.
The victim previously had failed to identify the defendant in a pretrial identification procedure that the defendant concedes was nonsuggestive.
Upon the defendant's objection, the judge struck the words “the other suspect.”
While it would have been preferable for the victim not to have volunteered the defendant's identity by stating his name, “we cannot conclude that the judge abused her discretion in allowing the in-court identification[ ] in evidence where [its] admission was in accord with the case law existing at the time of her decision.” Crayton, supra at 245. See Collins, supra at 261. Prior to Crayton and Collins, courts “excluded in-court identifications only where their inherent suggestiveness is magnified by the impermissible suggestiveness of an out-of-court-identification.” Crayton, supra at 238. Here, the victim made no out-of-court identification during the pretrial procedure, which was nonsuggestive. See note 4, supra; Collins, supra. “Because the defendant's trial took place before the issuance of Crayton and Collins, those prospective rules do not apply in this case,” Commonwealth v. Bastaldo, supra at 31, and we decline the defendant's invitation to extend them. Defense counsel did an exceptional job challenging identification of the defendant both in cross-examining the victim and in closing argument, and there was no error.
For example, when defense counsel asked the victim if it was “fair to say because Mr. Perez is sitting here, that's what reminded you that he was involved, right?” the victim answered, “[i]t's kind of like a 50/50 situation on that.”
--------
Judgment affirmed.