The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1020
COMMONWEALTH
vs.
KEITH D. CORREIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of larceny of a motor vehicle, negligent operation
of a motor vehicle, and leaving the scene of property damage.
On appeal, the defendant maintains that (1) identification
testimony from eyewitnesses violated Commonwealth v. Crayton,
470 Mass. 228, 237, 242-243 (2014); (2) his trial counsel was
ineffective; and (3) the evidence against him was insufficient.
We affirm.
Background. The jury could have found that, on the evening
of February 19, 2019, a couple leaving a restaurant saw the
defendant checking the door handles of cars parked on the
street, apparently to see if they were unlocked. After getting
into their own car, the couple drove to a nearby parking lot,
where they saw what appeared to be the same person "rummaging
through a car." The wife called the police to report what they
saw, and the couple then saw the defendant move to a different
car, a gray Nissan Pathfinder. The defendant got into the
Pathfinder and drove it out of the lot. The couple started to
follow behind in their own car. They saw the Pathfinder almost
hit another vehicle, accelerate through an intersection, and hit
two other vehicles along the street, which caused one of the
Pathfinder's tires to pop and the rim of the wheel to spark.
There was a trail of "either oil or coolant" which the couple
followed, eventually finding the Pathfinder "smashed" into
another vehicle, with the same man they witnessed on the street
and in the parking lot earlier (the defendant) walking away from
the accident. Both members of the couple testified that they
recognized the man by his jacket and hat, though the wife
testified that the two had disagreed on the color of the man's
jacket. The wife had been on the phone with the police while
the couple was following the Pathfinder. When police arrived at
the scene, the husband directed the police to the defendant, who
was then walking away from the car, and he was arrested.
The defendant filed a motion in limine to prevent in-court
identifications at trial. The judge took no action on the
motion, reserving a ruling until in-court identifications
occurred. The couple had differing initial accounts of the
defendant's appearance -- they disagreed about the color of his
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jacket, and while the husband thought the defendant was white,
the wife thought he had dark skin.
During the husband's testimony, he was asked about his
ability to recognize the person he had seen and said that he had
recognized the defendant "as soon as he walked through the
courtroom doors this morning." The defendant objected to the
statement as impermissibly suggestive but did not move to strike
the identification or ask for a curative jury instruction. The
judge instructed the Commonwealth to lay a foundation before
prompting an in-court identification of the defendant but did
not sustain the objection or (sua sponte) strike the statement.
The husband then testified that he did not get a good look at
the person's face, and the Commonwealth did not pursue the
issue.
The wife also testified that she had not gotten a good look
at the driver's facial features and that she had recognized him
by his clothing, but she was nonetheless confident in her
ability to identify the driver. The judge overruled the
defendant's objection to the identification. The wife then
identified the defendant.
The arresting officer testified and identified the
defendant at trial as well. That officer had also taken some
items from the defendant's person after detaining him, including
a Nissan car key with a broken loop. Over the defendant's
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objections, photos of the key and booking photos were entered
into evidence.
Discussion. 1. In-court identifications. The defendant
maintains that both the husband's and wife's in-court
identifications were Crayton errors. Under Crayton, 470 Mass.
at 237, 242-243, if there was no prior out-of-court
identification, an in-court identification is only allowed if
there is a "good reason." "Good reasons" include "where the
eyewitness was familiar with the defendant before the commission
of the crime," and "where the witness is an arresting officer
who was also an eyewitness to the commission of the crime, and
the identification merely confirms that the defendant is the
person who was arrested for the charged crime." Id. at 242.
"In both of these circumstances, the in-court [identification]
is understood by the jury as confirmation that the defendant
sitting in the court room is the person whose conduct is at
issue rather than as identification evidence." Id.
The Commonwealth bears the burden of showing good reason
for the in-court identification. See Crayton, 470 Mass. at 243.
Here, with respect to the identifications by the couple, the
Commonwealth asserted that the couple had directed the police to
the scene. There had been no out-of-court identification
procedure like a "showup" or a photo array. The couple was not
previously familiar with the defendant. See id. at 242.
4
Because there was no good reason for the judge to allow in-court
identifications from the couple, the trial judge erred by
denying the defendant's motion in limine to prevent such
identifications, and by overruling the defendant's objections to
the wife's in-court identification. However, these errors did
not prejudice the defendant. See Commonwealth v. Ortiz, 487
Mass. 602, 610-611 (2021). Given the strength of the other
evidence presented to the jury, including an arresting officer's
in-court identification of the defendant,1 the errors "did not
influence the jury, or had but very slight effect." Id. at 610,
quoting Commonwealth v. Brown, 456 Mass. 708, 725 (2010), S.C.,
466 Mass. 1007 (2013).
The husband's in-court identification stands on slightly
different footing from the wife's; it was not responsive to the
Commonwealth's questioning but was instead spontaneous. The
defendant objected, which resulted in the judge's instructing
the Commonwealth to lay the foundation for an identification.
After failing to do so, the Commonwealth did not pursue an
identification from the husband. The defendant did not move to
strike the husband's unprompted statement or request a
corrective jury instruction. We cannot say that the trial judge
1 While the defendant also challenges the arresting
officer's identification, that identification was permissible
under Crayton, 470 Mass. at 242.
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abused his discretion by not taking up those tasks sua sponte.
Further, as discussed above, even if the judge had erred, it
would not have prejudiced the defendant.2 See Ortiz, 487 Mass.
at 610-611.
2. Ineffective assistance. The defendant claims, for the
first time on appeal, that his trial counsel provided
ineffective assistance by not moving to suppress the car key
with the broken loop.3 Absent exceptional circumstances, we do
not review claims of ineffective assistance of counsel for the
first time on appeal. Commonwealth v. Zinser, 446 Mass. 807,
809 n.2 (2006), and cases cited therein. Because the factual
basis for the defendant's claim does not "appear[] indisputably
on the trial record," Commonwealth v. Adamides, 37 Mass. App.
2 The judge also did not err by admitting photographs of the
defendant from after his arrest, as it was reasonable for him to
conclude that any risk of unfair prejudice did not substantially
outweigh their probative value. See Crayton, 470 Mass. at 249
n.27, citing Mass. G. Evid. § 403 (2014).
3 The defendant also appears to raise, for the first time,
arguments related to whether there was probable cause to stop
and arrest him, and appears to suggest that an arrest warrant
was required, that the seizure of the key with the broken loop
was unlawful, and that the stop was racially discriminatory.
Because these issues were not raised below, we ask whether the
record is "adequate to permit review on the merits" and, if so,
review to determine whether there was an error and, if any,
whether it created a substantial risk of a miscarriage of
justice. Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795
(2019). The record, including the trial transcript, is
inadequate to permit review of the defendant's claims under the
United States Constitution and the Massachusetts Declaration of
Rights. See id. at 797-798.
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Ct. 339, 344 (1994), it does not fall "within that narrow
category of claims that an appellate court can resolve on the
trial record," Zinser, supra at 811. Even if this claim were
properly before us, it would fail, because counsel's conduct did
not fall "measurably below that which might be expected from an
ordinary fallible lawyer." See Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). Further, "to prevail on an ineffective
assistance of counsel claim on the ground of failing to file a
motion to suppress, the defendant has to demonstrate a
likelihood that the motion to suppress would have been
successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
The defendant has not done so here. See note 3, supra.
3. Sufficiency of the evidence. The defendant maintains
that the trial judge should have granted his motions for
required findings of not guilty because the evidence against him
was insufficient. "In reviewing a denial of a motion for a
required finding of not guilty, our inquiry is whether the
evidence, viewed in the light most favorable to the
Commonwealth, was sufficient to satisfy a rational trier of fact
that the essential elements of the crime have been proven beyond
a reasonable doubt." Commonwealth v. Vazquez, 69 Mass. App. Ct.
622, 626 (2007). "[W]e keep in mind that the evidence relied on
to establish a defendant's guilt may be entirely circumstantial,
. . . and that the inferences a jury may draw from the evidence
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'need only be reasonable and possible and need not be necessary
or inescapable.'" Commonwealth v. Linton, 456 Mass. 534, 544
(2010), S.C., 483 Mass. 227 (2019), quoting Commonwealth v. Lao,
443 Mass. 770, 779 (2005). "[F]indings drawn partly or wholly
from testimonial evidence are accorded deference and not set
aside unless clearly erroneous," Commonwealth v. Tremblay, 480
Mass. 645, 655 (2018), but where factual findings are
"predicated not on the assessment of witness credibility but
rather, on documentary materials," Commonwealth v. Pugh, 462
Mass. 482, 495 (2012), we review the evidence de novo. See
Tremblay, supra at 656.
Here, the evidence was sufficient to prove that the
defendant stole and negligently operated the Pathfinder and left
the scene of the accident. Testifying witnesses, including an
arresting officer, placed the defendant at the scene of the car
theft and the accident, saw the Pathfinder dangerously and
illegally cross multiple intersections, and witnessed it
crashing into parked vehicles. When the defendant was arrested
a block away from the accident, a Nissan car key was in his
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pocket. From the evidence, a jury could reasonably have
concluded that the defendant committed the charged crimes.4
Judgments affirmed.
By the Court (Hand,
Hershfang & Brennan, JJ.5),
Assistant Clerk
Entered: April 9, 2024.
4 To the extent we have not specifically addressed any of
the defendant's arguments, we have considered them and do not
find them worthy of discussion. See Commonwealth v. Domanski,
332 Mass. 66, 78 (1954).
5 The panelists are listed in order of seniority.
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