Heard: December 10, 2018.
Assault and Battery. Identification. Evidence,
Identification, Photograph, Argument by prosecutor. Practice,
Criminal, Identification of defendant in courtroom,
Instructions to jury, Witness, Argument by prosecutor.
found and returned in the Superior Court Department on May
21, 2015. The cases were tried before Thomas F. McGuire, Jr.,
Hayne Barnwell for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for the
Present: Green, C.J., Wolohojian, & Wendlandt, JJ.
defendant was convicted after a jury trial of unarmed robbery
(G. L. c. 265, § 19 [b]) and assault and battery (G. L.
c. 265, § 13A). On appeal, he argues that evidence he
terms in-court and out-of-court identifications was
erroneously admitted. He also contends that the judge erred
in failing to give a specific unanimity instruction with
respect to the unarmed robbery charge. Finally, he contends
that various improprieties in the prosecutor's closing
argument require reversal of his convictions. We affirm.
summarize the trial evidence as the jury could have found it.
Around 5:30 P.M. on March 2, 2015, Michael Nichols was
sitting inside the main entrance of Morton Hospital in
Taunton, having completed his shift as a technician at the
hospital, where he had worked for eighteen years. Nichols,
who did not drive, was waiting for a taxicab (taxi) to take
him to a bar where his pool league was to meet. Nichols had
several items with him on that particular evening: a carrying
case containing his pool stick, his cell phone (phone), and a
backpack that contained various personal items, including his
checkbook. As he waited for the taxi, Nichols was approached
by a white man of medium build with a darker complexion who
was wearing a red hat, a black North Face brand jacket, and
blue jeans. Nichols did not know the red-hatted man, but he
nonetheless agreed to the man's request to borrow his
phone. The man took the phone outside and returned a few
minutes later, saying that he had left the phone in his car.
The man also told Nichols that Nichols should follow him to
his car in the parking lot to get the phone back.
Accordingly, Nichols followed the man to his car, which was
one to two hundred feet away in the hospital parking lot. The
man offered to drive Nichols back to the hospital entrance,
and so Nichols got into the man's car. Leaving Nichols in
the car, the man went inside the hospital; he returned about
five minutes later with two other men, who got into the rear
passenger compartment of the car. Nichols asked for his
phone, but the red-hatted man made no response. Instead, he
drove a block away from the hospital and demanded
Nichols's backpack. When Nichols refused, the red-hatted
man punched Nichols twice in the nose and grabbed one of the
straps of the backpack to restrain Nichols. Nichols managed
to slip his arms out of the backpack and to escape from the
car. The man drove away with Nichols's backpack, phone,
and pool stick case.
police officer happened to be nearby, and Nichols immediately
reported to him the assault and robbery along with the
car's license plate number and a description of the men
involved. Nichols was visibly upset and shaken, his nose was
bleeding, blood was running down his face, and his lip was
swollen. Using the license plate number Nichols provided, the
police determined that the car was registered to the
defendant's girlfriend. The police then went to the
hospital, where they viewed video footage captured by the
hospital's surveillance system. Still images from the
hospital's surveillance systemwere consistent with
Nichols's account of what had happened. Those stills
showed Nichols seated in the hospital lobby, a man
approaching him wearing a red hat,  Nichols (wearing his
backpack and carrying his pool stick case) following a man in
the hospital parking lot, a man in a red hat standing near
the hospital's main lobby desk a few minutes later, and
that same man joined by another man wearing a gray hooded
coat, black sneakers, and white baseball cap with a
"P" insignia on front.
following day, Taunton police arrested Jeremy Craven and
Matthew DaSilva for shoplifting at a department store. In
Craven's pocket was Nichols's checkbook. DaSilva was
wearing a gray hooded sweatshirt and a baseball hat with a
"P" insignia similar to those worn by the man
standing with the red-hatted man in the hospital lobby. The
defendant was arrested several days later at his
Nichols did not know his assailant, the identity of the man
in the red hat was the central issue at trial. Although the
defendant identified the man in the red hat in the
surveillance still images as the man who assaulted and robbed
him, he never identified the red-hatted man as the defendant.
As a result, the Commonwealth sought to establish that the
defendant was the man in the red hat (1) by having the jury
themselves assess the defendant's resemblance to the man
shown in the still images (which were admitted), (2) through
the testimony of the defendant's mother, who testified
that the man in the red hat shown in the still images was her
son, the defendant, (3) through the testimony of the
arresting officer, who identified the defendant as the man he
arrested and as the man in the booking photograph, and (4)
through circumstantial evidence, such as the fact that the
vehicle used in the crime belonged to the defendant's
girlfriend. Because Nichols had never made an out-of-court
identification of the defendant, the trial judge agreed with
the defendant that Nichols should not be allowed to make an
in-court identification of the defendant. See
Commonwealth v. Crayton, 470 Mass.
228, 236-237, 241-242 (2014). The defendant now contends,
however, that several "identifications" nonetheless