Heard: March 2, 2018.
and Battery by Means of a Dangerous Weapon. Evidence,
Identification, Identification of victim, Self-serving
statement. Identification. Practice, Criminal, Identification
of defendant in courtroom, Jury and jurors. Jury and Jurors.
Complaint received and sworn to in the Somerville Division of
the District Court Department on March 19, 2015.
case was tried before Paul M. Yee, J.
A. Haberlin for the defendant.
Randall F. Maas, Assistant District Attorney, for the
Present: Maldonado, Blake, & Desmond, JJ.
jury trial, the defendant was convicted of assault and
battery by means of a dangerous weapon. The offense stemmed
from events that occurred on March 18, 2015. Although the
defendant raises several issues on appeal, his primary
argument is that the judge erroneously permitted two
eyewitnesses to make an in-court identification. The
defendant claims, contrary to the judge's explicit
ruling, that the witnesses had not participated in a prior
out-of-court identification procedure and, therefore, the
in-court identifications were inadmissible under
Commonwealth v. Crayton, 470 Mass.
228 (2014). Because we conclude, as did the judge, that
Crayton does not apply where, as here, the witnesses
made a prior identification of the defendant at the scene of
the crime, we affirm.
March 18, 2015, at approximately 4:30 P.M., M.R. was walking
down Governors Avenue in Medford when she heard two people, a
man (later identified as the defendant) and a woman (the
victim), arguing. From a distance that M.R. estimated to be
about the size of the court room, she saw that as the woman
started to walk away, the defendant struck her from behind
with a cane, causing the woman to fall to the ground and lose
consciousness. The defendant then tried to drag the woman,
who was not moving, to the curb, where she began to
"move a little bit." M.R. telephoned 911 and
watched as another bystander (K.E.) approached the two
individuals. M.R. never lost sight of the defendant, and when
the police arrived, she pointed him out as the perpetrator of
second witness, K.E., a nurse, was backing into a parking
space on Governors Avenue, when she too observed the
defendant strike the victim with a cane. She got out of her
car, and as she walked toward the defendant and the victim,
she dialed 911 from her cellular telephone. When the
defendant attempted to move the victim toward the curb, K.E.
told him, "Put her down." K.E. then observed the
victim regain consciousness and try to crawl away. She also
noticed that the victim's right temple was red. The
victim stood up, and using the cane, which had been left on
the ground, she started to walk away with the defendant. To
keep the two individuals at the scene until the police
arrived, K.E. falsely announced, "You lost some
belongings in the snow bank."
Medford police Sergeant Joseph Casey was driving to work on
Governors Avenue, when his attention was drawn to two women
looking concerned on the center island. He stopped his
vehicle and spoke to M.R. and K.E.; they directed his
attention to the couple who were walking up Governors Avenue.
Casey approached the defendant and the victim and spoke to
them. Shortly thereafter, Officer Robert Furtado arrived and
took over for Casey.
also spoke to the couple. The defendant identified the woman
with him as D.O. and denied "anything happening."
However, after hearing from M.R. and K.E., Furtado seized the
cane and placed the defendant under arrest.
trial, Casey identified the defendant as the same individual
M.R. and K.E. had pointed out to him at the scene. Furtado
identified the defendant as the same man he arrested after
M.R. and K.E. pointed him out, and M.R. and K.E. each
separately identified the defendant as the same ...