Heard November 7, 2017.
found and returned in the Superior Court Department on March
cases were tried before Elizabeth M. Fahey, J.
Timothy St. Lawrence for the defendant.
Houston Armstrong (Teresa K. Anderson, Assistant District
Attorney, also present) for the Commonwealth.
Present: Green, C.J., Rubin, & Sullivan, JJ.
direct appeal from his convictions of receiving a stolen
motor vehicle, subsequent offense, G. L. c. 266, § 28
(a.), and negligent operation of a motor vehicle, G. L. c.
90, § 24(2) (a.), the defendant raises two arguments;
whether (1) the trial judge erred in denying his motion for a
required finding of not guilty because the Commonwealth
produced insufficient evidence of identification, and (2) the
judge abused her discretion in denying a motion for mistrial
due to juror bias.
easier question relates to the sufficiency of the evidence.
The facts adduced at trial were as follows. On the evening of
January 31, 2014, while unloading a dark Buick Enclave sport
utility vehicle (SUV) for his employer, witness Shehab Ragab
saw a strange man in the driver's seat of the vehicle.
Ragab identified the man as dark-skinned, thin, and wearing a
white jacket and a dark-colored winter hat. He never saw the
man's face. Ragab unsuccessfully attempted to remove the
man from the SUV. The man drove off. Ragab called the police
at 7:04 P.M. and immediately began to canvass the
neighborhood looking for the SUV. He saw the vehicle,
attempted to stop it, and was knocked to the ground. The SUV
sped away in the direction of a Stop & Shop grocery
store. Ragab returned to his place of employment to give a
statement to the police when he again saw the SUV. The police
pursued it by foot and by car.
thereafter, witness Roger Marcon was walking in the
neighborhood and saw and heard the SUV stop abruptly on the
sidewalk on the Stockwell Street side of Frawley Street, near
where he was walking. He continued to walk. Although he did
not see anyone get out of the SUV, he looked back and saw the
defendant, who is African-American, near the SUV carrying
grocery bags from Stop & Shop. The lights were on and the
driver's side door was open. The defendant was wearing a
dark coat and a dark winter hat, and looked disheveled,
frightened, and confused. Marcon saw nobody else near the
SUV. When the police arrived, Marcon pointed them toward the
defendant, who was then arrested.
scene, a detective conducted a show-up of the defendant with
Ragab and Marcon. Ragab was unable to make a positive
identification of the defendant, although he stated that the
defendant's hat and skin color matched those of the man
who stole the SUV. Marcon, however, did make a positive
identification with 100 percent confidence. Defense
counsel's theory was that the defendant, who lived in the
neighborhood, was simply walking home from the Stop &
Shop. However, the Commonwealth elicited testimony at trial
that the intersection of Frawley Street and Stockwell Street
was not on the defendant's most direct route home from
Stop & Shop.
trial, the Commonwealth introduced in evidence a video
recording from the Stop & Shop parking lot. It showed
that, at 7:00 £.M., an SUV pulled into the parking lot,
a person got out of the vehicle, a person then entered it
approximately nine minutes later, and the SUV drove off.
the equivocal identification by Ragab, the testimony of
Marcon that, immediately upon hearing a vehicle screech to a
halt on Frawley Street, he turned and saw the stolen vehicle
with its lights on and door open and the defendant standing
next to it holding bags of groceries and appearing
disheveled, frightened, and confused, when combined with the
facts that no other person was anywhere in the vicinity and
that the location was not along the most direct walking route
from the Stop & Shop to the defendant's house (in
contravention of the defendant's claim that he was
walking home from Stop & Shop), suffice to support the
element of identification with respect to which the defendant
claims there is insufficient evidence. To be sure, the record
contains no explanation for the fact that the video recording
purporting to show the stolen SUV entering the Stop &
Shop parking lot was time stamped several minutes before the
robbery occurred, rather than afterward. While such
circumstances might call into question the relevance of the
videotape, the adequacy of its authentication, or whether its