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Commonwealth v. Morales-Alvarez

Superior Court of Massachusetts, Essex

October 13, 2017

Edgar MORALES-ALVAREZ, Elisamuel Fernandez-Pagan, and Angel Rojas


          Kenneth W. Salinger, Justice

         The Defendants have all been charged with participating in an armed robbery of a convenience store, assault with a dangerous weapon (because one of them allegedly fired a shot at two people as Defendants fled), and receiving a stolen motor vehicle. Three witnesses (the convenience store owner, the owner of a neighboring pizza shop, and one of the neighbors who was shot at) identified some or all of the defendants as the perpetrators after police had them showup and view three suspects standing next to a marked police cruiser, with their hands behind their backs, and flanked by two uniformed police officers. The fourth witness could not identify any of the suspects. Defendants move to suppress these three identifications.

         The Court concludes that it must suppress the identifications made by the convenience store owner because they were brought about by an unnecessarily suggestive identification procedure and also because the limited probative value of his identifications is substantially outweighed by the unfair prejudice of admitting identifications tainted by highly suggestive circumstances. It further concludes that it must also suppress the identifications by the neighbor; although the identification procedure used with this witness was not unnecessarily suggestive in a constitutional sense, the probative value of his identifications is also substantially outweighed by the unfair prejudice of admitting identifications tainted by suggestive circumstances. However, the Court concludes that the separate identification by the pizza shop owner is admissible.

         1. Findings of Fact.

         The Court heard testimony by Lt. Maurice Aguiler and Det. Frank Daly of the Lawrence Police Department. The Court finds that both witnesses were credible and credits all of their testimony. It makes the following findings based on this evidence and reasonable inferences drawn from the evidence.

         1.1. The Robbery and Witness Statements.

         On October 17, 2016, shortly before 11:45 a.m., the Lawrence police department received a 911 call reporting an armed robbery at the D & C Convenience store. At that time Aguiler was a police sergeant and was overseeing the day shift. Daly was working his very first shift as a police detective. They responded together to the call, driving to D & C Convenience in an unmarked Ford Crown Victoria sedan. Other police officers also responded.

         David Ashness, the owner of D & C Convenience, was the robbery victim. The Court infers and therefore finds that Ashness was the person who had made the 911 call. Det. Daly took his statement. Ashness was bleeding from the head when Daly arrived. Ashness told Daly that he had been robbed by two Hispanic men, that he could not see their faces because both men wore masks, and that the men wore dark clothing. He said that one of the robbers had threatened him with a firearm and then struck Ashness in the head using the butt of the gun. Ashness was unable to provide any other description of the two robbers or their clothing. Ashness suffered a serious laceration when he was struck by the gun. At some point an ambulance arrived and an EMT stitched up Ashness’s head wound inside the ambulance.

         Michael Ortiz Sr. and his son Michael Ortiz Jr. lived on Weare Street around the corner from D & C Convenience. They told the police that they had been outside their home when two men ran past and got into a white BMW with New Hampshire plates, which was being driven by a third man who then drove off. As the two men ran past one of them pointed a handgun at the Ortizes, yelled " you didn’t see anything, " and fired a shot in their direction. The Ortizes saw these three men only for a few brief seconds, while being threatened with a handgun and shot at.

         The police also spoke with John Enos, who owns the All-Star Pizza shop next door to D & C Convenience. Enos told the police that an Hispanic man had been in his pizza shop for several minutes at around the time of the robbery next door, ordering a sandwich. Enos also reported that after that man left, and presumably after a shot was fired nearby and police responded to the scene, Enos had reviewed surveillance video recorded by a system had installed. Enos could see what appeared to be someone running to a car parked outside of his shop in the video recording, immediately after the Hispanic man had left the shop.

         1.2. The Chase and Apprehension of Suspects.

         The police officer who spoke with the Ortizes broadcast by police radio that three Hispanic men believed to have committed the armed robbery were fleeing the area in a white BMW with New Hampshire license plates. When then-Sgt. Aguiler heard that report, he left Det. Daly at D & C Convenience and headed out in his vehicle to help look for the BMW.

         After a few minutes Aguiler heard on the radio that an officer had located and was pursuing a white BMW sedan with New Hampshire plates not far from D & C Convenience. Aguiler positioned his vehicle on a side street near Market Street, based on radio reports of the motor vehicle chase. He soon saw the BMW approach him with several police cruisers in pursuit. Aguiler saw the BMW turn onto the street where he was waiting; it was moving fast and fish-tailed as it turned the corner.

         Aguiler activated his emergency lights and siren as the BMW drove toward him. In response the BMW driver took a sharp right turn into an alley. Aguiler followed, about three to four car lengths behind.

         The BMW driver stopped his vehicle a short distance down the alley. Aguiler saw three men leap out and jump a fence into someone’s back yard. Aguiler got a good look at the three men as he stopped his vehicle behind the BMW. Aguiler leapt out to give chase. He ran past the BMW, glancing inside to make sure there was no one else in the case, and pursued the men over the fence. Aguiler called out on his radio to alert the nearby officers. By this time roughly ten police officers, including detectives and uniformed officers, had responded and began searching for the three suspects.

         The police located and seized all three men within the next half hour. Aguiler confirmed that the three men taken into custody were the same three men he had seen jump out of and run away from the BMW. The three defendants in this case are the three men that Aguiler saw exit the BMW.

         1.3. The Showup Identifications.

         Aguiler decided to conduct showup identifications to see whether any of the witnesses could confirm that the three men in custody were involved in the armed robbery. By this time most of the detectives and officers at the scene were searching for the firearm that had been used in the robbery. No gun had been found in the BMW or on any of the suspects.

         Aguiler instructed two uniformed officers to hold the three suspects near a marked police SUV cruiser on Farnham Street, very close to the spots where the three suspects had been apprehended. All three suspects had their wrists handcuffed together behind their backs.

         1.3.1. David Ashness.

         Sgt. Aguiler drove back to D & C Convenience where he picked up Det. Daly and Mr. Ashness, in order to conduct a showup identification procedure with Ashness. By this time just over an hour had passed since Ashness had called the police to report the armed robbery. When Aguiler arrived at the convenience store he saw Ashness stepping out of the ambulance, where his head had just been stitched up. Daly got into the front passenger seat of the cruiser that Aguiler was driving. Ashness sat in the rear seat. There was no prisoner cage or other divider between the front and rear seats.

         As Aguiler drove back to Farnham Street, Daly gave Ashness an explanation and some instructions. Daly told Ashness that the police had detained some men, that those men may or may not have been involved in the robbery, that even if they were involved they may not look the same as at the time of the incident, that the police wanted Ashness to look at the men and see whether he recognized anyone and if so tell the police how certain he was, that it was just as important to clear innocent people as to identify people involved in the incident, [1] and that the police would continue to investigate the matter whether or not Ashness identified anyone.

         When they arrived at Farnham Street, defendant Morales-Alvarez was standing apart from the other suspects. Ashness immediately said that Morales-Alvarez was one of men who had committed the armed robbery. The police then had Morales-Alvarez stand with the other two men.

         Ashness could see all three suspects standing side-by-side and that they were being held behind a marked police SUV, between two uniformed officers, with their arms restrained behind their backs. Ashness had a clear view- through the front windshield of the unmarked cruiser he was seated in- of the suspects, the police SUV, and the two officers guarding the suspects. Morales-Alvarez was on the left and was wearing a black shirt, grey or faded black pants, and white shoes. Rojas was standing in the middle and was wearing a shirt with light horizontal stripes and a dark background, black pants, and light-colored shoes. Fernandez-Pagan was standing on the right and was wearing a black shirt and grey or faded black pants; his shoes are not visible in the photograph of the showup ID that is in evidence.

         After viewing the three suspects standing together, Ashness identified Morales-Alvarez and Fernandez-Pagan as the two men who had been inside his store. Ashness said he could do so based on the clothing that the two men were wearing. The two men he identified were wearing outfits that were not very distinctive but were quite similar to each other (black shirts and grayish or faded black pants). Their clothing was notably different from that worn by Rojas, who was the only suspect wearing a striped shirt. Ashness did not say he recognized anything about the two men he identified other than their clothing. For example, he did not say that the suspects had the same size, build, or skin color as the men who attacked him and robbed his store.

         Ashness was not asked to and did not say how certain he was that Morales-Alvarez and Fernandez-Pagan were the men who had robbed and attacked him.

         After Ashness identified two of the suspects, Aguiler used his radio to report that to the other officers and detectives. He did so by broadcasting something like, " Okay, we’ve got a positive." The Court finds that the other three witnesses probably heard that, and were aware that some other witness had made a positive identification, because police ...

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