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Commonwealth v. Stewart

Appeals Court of Massachusetts, Middlesex

November 14, 2018

COMMONWEALTH
v.
PAUL J. STEWART.

          Heard: March 2, 2018.

         Assault 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.

         The case was tried before Paul M. Yee, J.

          Kerry A. Haberlin for the defendant.

          Randall F. Maas, Assistant District Attorney, for the Commonwealth.

          Present: Maldonado, Blake, & Desmond, JJ.

          MALDONADO, J.

         After a 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.

         Background.

         On 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 the assault.

         The 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."

         Meanwhile, 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.

         Furtado also spoke to the couple. The defendant identified the woman with him as D.O.[1] and denied "anything happening." However, after hearing from M.R. and K.E., Furtado seized the cane and placed the defendant under arrest.

         At 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 ...


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