author: AGNES, J.

text:
    COMMONWEALTH v. Paulo MONTEIRO.
    No. 16-P-1633
    Appeals Court of Massachusetts, Bristol..
    Argued January 12, 2018 Decided June 28, 2018
    Robert P. Kidd, Assistant District Attorney, for the Commonwealth.
    David R. Rangaviz, Committee for Public Counsel Services, for the defendant.
    Present: Vuono, Agnes, & McDonough, JJ.
   AGNES, J.

In this interlocutory appeal by the Commonwealth, we must decide whether the information provided by a first-time, confidential police informant (CI) was sufficiently corroborated by a single, imperfectly executed controlled "buy" of cocaine for the purposes of establishing probable cause for the issuance of a warrant to search the defendant's apartment. We conclude that the affidavit was sufficient to establish the CI's basis of knowledge and veracity, and that the information provided by the CI, along with information gathered by the police, as set forth in the affidavit in support of the search warrant, established probable cause. Accordingly, we reverse the order allowing the defendant's motion to suppress.

Background. The affidavit filed as part of the warrant application contained the following facts.

In November, 2015, Detective Gracia of the New Bedford police department spoke with the CI, whose identity and whereabouts were known to the police. The CI stated that they had contacted the defendant, Paulo Monteiro, by telephone or had "show[n] up [at] his residence" in New Bedford to purchase cocaine in the past. The CI informed Detective Gracia that they continue to purchase cocaine from the defendant. The CI provided Detective Gracia with a physical description of the seller ("a Cape Verdean male 20 years old approx 6' tall with a medium build") and the seller's address. Detective Gracia confirmed via the police department's computer system that a person named Paulo Monteiro had the same listed address as that provided by the CI. Detective Gracia also reviewed the defendant's criminal record and determined that he was on probation for statutory rape. A booking photograph of the defendant was shown to the CI. The CI stated that the person in the photograph, whom the CI identified as the defendant, was the person who had sold cocaine to the CI in the past.

Detective Gracia later met the CI to arrange a controlled buy of cocaine from the defendant. The CI was searched and determined to be free of contraband and money. Detective Gracia then gave the CI money to purchase cocaine from the defendant. Detective Gracia and other members of the New Bedford police department maintained surveillance of the CI. They observed the CI walking toward the rear exterior door of the defendant's apartment building. A short time later, the CI was seen leaving the walkway leading to the rear exterior door. The defendant was not observed entering or exiting the apartment building through the rear exterior door. The CI was kept under surveillance until the CI met Detective Gracia at a predetermined location where the CI provided Detective Gracia with a quantity of what the CI said was cocaine. The CI stated that they purchased the cocaine from the defendant inside his first-floor apartment. The CI was again searched and determined to be free of money and contraband. The material the CI turned over to the police was field tested and found to be cocaine.

Detective Gracia applied for, and a magistrate subsequently issued, a warrant to search the defendant's apartment. Upon execution of the search warrant, the police found narcotics and drug paraphernalia inside the defendant's apartment. An indictment was returned against the defendant for trafficking in cocaine. See G. L. c. 94C, § 32E(b ). The defendant moved to suppress the contraband and related drug paraphernalia found during the search on the basis that the affidavit provided to the magistrate did not establish probable cause. The defendant's motion to suppress was allowed after the motion judge concluded that the affidavit failed to establish both the CI's basis of knowledge and veracity. For the reasons set forth below, we reverse.

Discussion. Article 14 of the Massachusetts Declaration of Rights requires that a search warrant issue only upon a showing of probable cause. Commonwealth v. Foster, 471 Mass. 236, 241, 28 N.E.3d 427 (2015). In determining whether the probable cause standard was met, our inquiry "begins and ends with the 'four corners of the affidavit' " supporting the application for the search warrant. Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428, 657 N.E.2d 237 (1995). "Because a determination of probable cause is a conclusion of law, we review a search warrant affidavit de novo." Foster, supra at 242, 28 N.E.3d 427.

In Commonwealth v. Upton, 394 Mass. 363, 373, 476 N.E.2d 548 (1985) ( Upton II ), the Supreme Judicial Court determined that "art. 14 provides more substantive protection to criminal defendants than does the Fourth Amendment" to the United States Constitution. When an affidavit in support of a search warrant is based on information supplied by an unknown informant, art. 14 requires the magistrate called upon to issue a search warrant to apply the so-called Aguilar- Spinelli test to assess whether the affidavit is sufficient to establish probable cause to issue the warrant. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ;

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

"Where information from an unidentified informant is relied on to supply probable cause to search, art. 14 ... requires that the affidavit apprise the magistrate of (1) some of the underlying circumstances from which the informant concluded that contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was credible or the information reliable (the veracity test)."

Commonwealth v. Warren, 418 Mass. 86, 88, 635 N.E.2d 240 (1994).

The defendant concedes, and we agree, that the basis of knowledge test was satisfied by the CI's statement that they had purchased cocaine from the defendant inside the target apartment within seventy-two hours of the warrant issuing. See Commonwealth v. Desper, 419 Mass. 163, 166, 643 N.E.2d 1008 (1994).

We next examine whether the veracity prong has been satisfied. The affidavit submitted to the magistrate indicated that the CI was a first-time, confidential police informant, which rendered the statements made by the CI contained in the affidavit, standing alone, insufficient to satisfy the veracity prong of the Aguilar- Spinelli test. See Commonwealth v. Alfonso A., 438 Mass. 372, 376, 780 N.E.2d 1244 (2003) ("Although police knowledge of the CI's 'identity' and 'whereabouts' would not be adequate standing alone to confirm the informant's reliability, it is a factor that weighs in favor of reliability"); Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 787, 911 N.E.2d 206 (2009) (information from first-time informant "ordinarily would not meet the veracity requirements imposed by art. 14").

However, "a properly monitored controlled purchase of illegal drugs provides sufficient corroborating evidence to overcome any shortfalls in meeting the constitutional reliability requirements imposed on confidential informants." Figueroa, supra at 787-788, 911 N.E.2d 206. See Commonwealth v. Luna, 410 Mass. 131, 134, 571 N.E.2d 603 (1991) (two controlled purchases of narcotics by confidential informant were sufficient, standing alone, to provide probable cause to search defendant's home); Warren, 418 Mass. at 87, 89, 635 N.E.2d 240 (tip containing detailed information about defendant's apartment and location of drugs contained therein, coupled with single controlled buy, sufficient to establish informant's veracity); Villella, 39 Mass. App. Ct. at 427-428, 657 N.E.2d 237 (probable cause established where police corroborated portions of informant's detailed tip and informant made single controlled buy at defendant's residence through intermediary). See also Commonwealth v. Cruz, 430 Mass. 838, 842 n.2, 724 N.E.2d 683 (2000), citing Warren, supra. In Desper, 419 Mass. at 168, 643 N.E.2d 1008, the Supreme Judicial Court set forth the essential components of a controlled buy:

"(1) a police officer meets the informant at a location other than the location where is it suspected that criminal activity is occurring; (2) the officer searches the informant to ensure the informant has no drugs on his person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant to the premises where it is alleged illegal activity is occurring and watches the informant enter and leave those premises; and (4) the informant turns over to the officer the substance the informant has purchased from the residents of the premises under surveillance."

Here, the affidavit does not indicate that the affiant observed the CI's physical entry into, or exit from, the building housing the defendant's apartment during the course of the controlled buy. The defendant argues that this deficiency in the controlled buy rendered the information provided by the CI unreliable for the purposes of establishing probable cause.

Although "the steps customary in a controlled buy should be taken" when a controlled buy is being used to corroborate a statement made by a confidential informant that otherwise would not be sufficient to establish probable cause, id. at 170, 643 N.E.2d 1008, probable cause may nevertheless be established where the police fail to comply with one of the four investigatory steps customarily associated with a controlled buy. See id. at 170-171, 643 N.E.2d 1008 (probable cause requirement was met where police failed to search confidential informant for contraband before two controlled buys). Here, the magistrate was not compelled to conclude that because the police did not observe the CI's physical entry into and exit from the apartment building, the information contained in the affidavit was insufficient to establish probable cause. In the circumstances of this case, the police observation of the CI walking toward the door to the building and then a few minutes later walking away from that area and turning over a quantity of drugs, when coupled with the other facts, was sufficient to support the magistrate's conclusion that the CI was credible. In cases involving a controlled buy of drugs from a seller who is located inside a multiunit building, we do not require that the police observe the informant enter the particular apartment where the transaction is reported to have occurred in order to demonstrate the reliability of the informant. See Warren, 418 Mass. at 90, 635 N.E.2d 240 ("It is not fatal to the warrant application that the police did not observe which of the three apartments the informant entered. Based on the information provided by the informant and their own observations, the police could infer that the defendant was dealing drugs from his second-floor apartment").

"In dealing with probable cause ... we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men ... act." Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982), quoting from Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). To that end, "the question is whether reasonable and prudent people would act on the basis of the information gathered by the police, not whether the information would satisfy legal technicians." Commonwealth v. Fontaine, 84 Mass. App. Ct. 699, 704, 3 N.E.3d 82 (2014), citing Brinegar, supra. Here, the controlled buy was executed less than seventy-two hours before the filing of the warrant application and affidavit. The affidavit indicated that the CI, whose identity and whereabouts were known to Detective Gracia, see Alfonso A., 438 Mass. at 375-376, 780 N.E.2d 1244, positively identified the defendant as having sold the CI cocaine from the target apartment in the past. The CI reported that they had been buying cocaine from the defendant at the location to be searched. The affidavit further stated that the defendant was on probation for committing a serious felony. The affidavit indicated that all the essential steps of a controlled buy were met, with the exception that the CI was not directly observed entering or exiting the building or target apartment. While the execution of the controlled buy was lacking in this respect, the affidavit stated that the CI was observed walking toward the rear door of the defendant's apartment building, returned a short time later under police surveillance with a quantity of cocaine from the vicinity of the rear exterior door, and informed the officers that they purchased the cocaine from the defendant inside the apartment. This information was sufficient to allow the magistrate to reasonably infer that the CI entered and purchased drugs in the defendant's apartment. See Warren, 418 Mass. at 90, 635 N.E.2d 240 ; Fontaine, supra at 704, 3 N.E.3d 82, quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002) ("In reviewing affidavits in support of search warrants, we allow 'considerable latitude' for the drawing of inferences"). Finally, we are mindful that in order to encourage the police to apply for search warrants, a reviewing court should allow "a certain leeway or leniency in the after-the-fact review of the sufficiency of applications for warrants." Commonwealth v. Corradino, 368 Mass. 411, 416, 332 N.E.2d 907 (1975). See United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; Commonwealth v. Cruz, 430 Mass. 838, 840, 724 N.E.2d 683 (2000) ; Commonwealth v. Monterosso, 33 Mass. App. Ct. 765, 770, 604 N.E.2d 1338 (1992).

For the above reasons, we conclude that the affidavit, "taken as a whole and read in a commonsense fashion," Alfonso A., 438 Mass. at 375, 780 N.E.2d 1244, demonstrated that the CI provided the police with sufficiently reliable information to support the magistrate's probable cause determination.

Order allowing motion to suppress reversed.

      The affidavit does not indicate whether the CI previously worked with the New Bedford police department. We therefore assume that the CI was a first-time informant.

      The layout of the apartment building is unclear from the statements in the affidavit. The affidavit indicated that the defendant lived on the first floor of the apartment building, but did not indicate how many other units were contained in the building, whether other apartments were located on the first floor, or whether the rear exterior door led directly into the defendant's apartment.

      In particular, in Upton II, the Supreme Judicial Court rejected the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and the "totality of the circumstances" test announced there to replace the Aguilar-Spinelli test.
      "The test we adopt has been followed successfully by the police in this Commonwealth for approximately twenty years. It is a test that aids lay people, such as the police and certain magistrates, in a way that the 'totality of the circumstances' test never could. We believe it has encouraged and will continue to encourage more careful police work and thus will tend to reduce the number of unreasonable searches conducted in violation of art. 14. We reject the argument that the higher standard will cause police to avoid seeking search warrants. We have no sense, and certainly we have no factual support for the proposition, that in recent years police in this Commonwealth have risked conducting warrantless searches because of the unreasonable strictures of the Aguilar-Spinelli test."
      Upton II, 394 Mass. at 376, 476 N.E.2d 548.

      Courts in other jurisdictions have deemed a single controlled buy sufficient to establish probable cause. See People v. Williams, 139 Mich. App. 104, 108, 360 N.W.2d 585 (1984), overruled in part on other grounds, People v. Russo, 439 Mich. 584, 603-604, 487 N.W.2d 698 (1992) ; State v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000) ; State v. Barrett, 132 Vt. 369, 370, 374, 320 A.2d 621 (1974).

      As discussed in note 2, supra, the affiant failed to state with specificity whether the rear exterior door mentioned in the affidavit led directly into the defendant's apartment or into an apartment building that housed multiple units, including the defendant's apartment.

      The result we reach should not be understood as encouragement to conduct controlled buys without strict compliance with the investigatory steps set forth in Desper, supra. Instead, we recognize that it may not be possible in every case for the police to observe an informant's actual entry into the building in which the seller's housing unit is located.

      The Supreme Judicial Court has "held repeatedly that a magistrate should rely on '[r]easonable inferences and common knowledge ... in determining probable cause.' " Commonwealth v. Byfield, 413 Mass. 426, 429-430, 597 N.E.2d 421 (1992), quoting from Commonwealth v. Alessio, 377 Mass. 76, 82, 384 N.E.2d 638 (1979). The defendant relies on Desper, 419 Mass. at 171 n.5, 643 N.E.2d 1008, for his argument that no inferences can be drawn with respect to probable cause determinations based on controlled buys. In Desper, the court was merely pointing out that the inclusion of the term "controlled buy" in an affidavit, without more, does not give rise to an inference that all of the investigatory steps of a controlled buy were met in a particular case. Ibid. Here, the steps taken to control the buy were explicitly set out in Detective Gracia's affidavit.

      This is not a case in which the controlled buy was insufficient to establish a nexus between the defendant's drug activity and the target apartment. In Commonwealth v. Pina, 453 Mass. 438, 439-440, 902 N.E.2d 917 (2009), the informant making the controlled buy was instructed to meet the defendant at a prearranged location away from the defendant's residence. The defendant then left his residence and proceeded to complete a drug transaction with the informant at the predetermined location. Ibid. The Supreme Judicial Court held that the information contained in the affidavit, including the description of the controlled buy, was insufficient to establish a nexus between the location to be searched (the defendant's apartment) and the defendant's drug activity. Id. at 442, 902 N.E.2d 917. Here, in contrast, the affiant sought a warrant to search the defendant's apartment after the CI made a controlled buy at the defendant's apartment and where the CI had previously purchased cocaine from the defendant's apartment.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. George JOHNSON
    17-P-930
    Appeals Court of Massachusetts.
    Entered: May 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial, the defendant was convicted of forcible rape of a child, indecent assault and battery on a child under fourteen, and intimidating a witness. On appeal he contends that the judge erred in allowing the testimony of a substitute first complaint witness, that his trial counsel was ineffective, and that the prosecutor made improper statements in her closing argument. We affirm.

1. First complaint witness. Over the defendant's objection, the judge allowed the Commonwealth's motion in limine to allow the victim's mother to testify as the first complaint witness. The defendant argues that this was error because the true first complaint witness was the mother's friend, Mary, who the victim told about the sexual assault a few hours before she told her mother. The defendant further argues that the Commonwealth failed to show that Mary was unavailable to testify at trial. Because the defendant objected to the mother's testimony, we review for prejudicial error. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008).

In sexual assault cases, the first complaint doctrine permits "the recipient of a complainant's first complaint of an alleged sexual assault [to] testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint." Commonwealth v. King, 445 Mass. 217, 218-219 (2005). "In limited circumstances, a judge may permit the testimony of a complaint witness other than, and in lieu of, the very 'first' complaint witness." Id. at 243. "For example, where the first person told of the alleged assault is unavailable, ... the judge may exercise discretion in allowing one other complaint witness to testify." Id. at 243-244.

Here, even assuming that the Commonwealth should have done more to contact Mary, the defendant suffered no prejudice from the substitution of the mother's testimony. Where the allegedly improper complaint testimony is "more important to the defense than the Commonwealth, there is no harm to the defendant." Commonwealth v. McCoy, 456 Mass. 838, 851 (2010). The defendant's central theory in this case was that the victim made up the allegations against him to divert her mother's attention from the fact that the victim was having a sexual relationship with a boy. The defendant could not have advanced this theory without evidence that the victim in fact disclosed the allegations to her mother. Cf. ibid. (no substantial risk of miscarriage of justice where "inconsistencies contained in the various versions of the victim's statements were a cornerstone of the defense").

Furthermore, "there was no 'piling on' of complaint witnesses," and the mother's complaint "testimony was so lacking in detail as to be virtually insignificant." Murungu, 450 Mass. at 448. See King, 445 Mass. at 245. Although the defendant claims that the mother's testimony was more emotional than what Mary's would have been, "[i]n a jury-waived trial, we presume that the judge was not affected, as a jury might be, by the testimony of [an allegedly improper] complaint witness[ ]." Murungu, 450 Mass. at 448. We discern no prejudice to the defendant in these circumstances.

2. Ineffective assistance of counsel. The defendant next argues that his trial counsel was ineffective because she failed to request that the judge issue rulings of law under Mass.R.Crim.P. 26, 378 Mass. 897 (1979). "[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial"; "our courts strongly disfavor raising claims of ineffective assistance on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). A "narrow" exception exists where "the factual basis of the claim appears indisputably on the trial record." Ibid., quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). That is not the case here. We have no affidavit from trial counsel or other evidence regarding her reasons for not requesting rulings of law. Thus, we are not in a position to say whether her strategy was manifestly unreasonable. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Moreover, the record does not establish that counsel's failure to request legal rulings "likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid. The defendant's claim is based on his perception that the judge rejected, as a matter of law, counsel's proffered defense that the victim initiated sexual contact while the defendant was asleep. It is clear, however, that the judge rejected that defense as a matter of fact. The judge convicted the defendant of assault and battery for pushing the victim to the kitchen floor, which means he necessarily credited the victim's testimony that the defendant pushed her to the floor before forcing her to perform oral sex on him. The defendant cannot show on this record, therefore, that rulings of law would have had any effect on the outcome of his appeal.

3. Closing argument. The defendant challenges several statements made by the prosecutor in her closing argument. Because the defendant did not object to these statements at trial, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 359 (2015).

The defendant first contends that the prosecutor vouched for the victim's credibility by arguing that she "put herself at risk" by testifying at both of the defendant's trials and at the trial of her stepfather, who was also convicted of sexually assaulting her. We agree, and the Commonwealth concedes, that this was impermissible vouching. See Commonwealth v. Beaudry, 445 Mass. 577, 587-588 (2005). The error did not, however, create a substantial risk of a miscarriage of justice. The judge expressly stated that he did not consider the fact that the victim testified at her stepfather's trial "as evidence tending to enhance the victim's credibility." There is also no substantial likelihood that the judge would have credited the victim's testimony simply because she testified at the defendant's first trial. The prosecutor focused her summation on why it would be illogical for the victim to fabricate the allegations. This was proper, and we presume that the judge distinguished between argument that was permissible and argument that was not. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 257 (2006), quoting from Commonwealth v. Milo M., 433 Mass. 149, 152 (2001) ("[I]t is presumed that the judge as trier of fact applies [the] correct legal principles").

Likewise, we reject the defendant's assertion that the prosecutor's "improper appeals to emotion" require reversal. Again, we presume that the judge correctly instructed himself and disregarded any comments that played on sympathy for the victim. See ibid.

Finally, the defendant argues that the prosecutor twice misstated the evidence. As the Commonwealth concedes, the prosecutor did misstate the testimony of the defendant's daughter. The prosecutor also appears to have erred when she stated that the defendant reported "the exact same thing" to the police and the Department of Children and Families. These errors were minor, however, and do not warrant reversal. See Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 548 n.9 (2009). A judge acting as trier of fact is presumed "to rely on his memory of the evidence, not that of counsel." Daley, 66 Mass. App. Ct. at 257, quoting from Commonwealth v. Montanez, 439 Mass. 441, 452 (2003). Indeed, here, the judge expressly stated after closing arguments that he would not have a verdict that day because he wanted to "go back and look at [his] notes and reflect on those notes, and ... also review the elements of each offense." The prosecutor's two minor misstatements did not result in a substantial risk of a miscarriage of justice.

Judgments affirmed.

      A jury had previously found the defendant guilty of the same charges, but the convictions were vacated after a judge allowed the defendant's motion for a new trial. The defendant then executed a jury waiver.

      We refer to her by her first name because her last name is not apparent in the record appendix.

      Before the start of the defendant's first trial, Mary moved out of the country, and her telephone numbers were not in service. The Commonwealth did not, however, attempt to contact her again before the second trial.

      At oral argument the defendant's counsel suggested that trial counsel adopted the theory only after the judge forced her hand by allowing the mother to testify. The record does not support this assertion. To the contrary, before trial and prior to the judge's ruling, trial counsel moved to admit the victim's medical records on grounds that they supported the defense's "essential theory of the case"-i.e., "that [the victim] chose this particular time in 2011 to make the disclosure because at the time she was a 15-year-old girl who was having intercourse with a peer-aged boy, and as a result of that developed a vaginal infection that required her to go to the doctor." Counsel further argued that "it [was the defense's] theory of the case that the motive for [the victim] making the disclosure at that particular time was to deflect attention away from the fact that her mother would be upset with her for those actions."

      In fact, the judge merely inquired, "But is that a defense?" After counsel explained why she believed it was a defense, the judge replied, "All right," giving no indication that he rejected counsel's reasoning.


text:
    COMMONWEALTH v. Todd TRAINOR.
    16-P-1462
    Appeals Court of Massachusetts.
    Entered: May 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant was convicted of armed robbery and assault and battery. On appeal, he claims that (1) his pretrial motion to suppress out-of-court photographic identifications of him should have been allowed, (2) the evidence was insufficient to sustain his convictions, and (3) he was deprived of the effective assistance of counsel. We affirm.

1. Motion to suppress. Before trial, the defendant moved to suppress out-of-court identifications of him by three eyewitnesses: James Randall, Christopher Hebert, and Jeffrey Goodrich. Following an evidentiary hearing at which the three eyewitnesses and Springfield police Officer David Robillard testified, the judge made findings on the record which we summarize as follows.

On December 26, 2013, a robbery occurred at the Darker Image Tanning Salon. The tanning salon, located on Island Pond Road in Springfield, shares a building with a business called Tattoo Royale. Randall, Hebert, and Goodrich were employees of Tattoo Royale. Immediately after the robbery, Christa Carrier, who worked at the tanning salon and who was the victim of the robbery, came running into Tattoo Royale crying and saying that she had been robbed at knifepoint. The three men ran into the tanning salon and then outside, where "they saw a van driving from behind the premises." The van was traveling at a high rate of speed, and Randall had to jump out of the way to avoid being hit by it. Goodrich observed that "the driver had a look on his face that made [Goodrich] think that something was terribly wrong." The three men were able to see the driver for anywhere from two to five seconds.

The police responded to the premises and spoke with Randall, Hebert, and Goodrich. "The thrust of that conversation had to do with the car." "Very little was said about the description of the driver," except that he was a white male with a scruffy beard. Later that night, Randall went to the Springfield police department to look at a photographic array. The identification procedure was conducted in a manner that complied with the protocol set forth by the Supreme Judicial Court in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009). Randall was shown eight photographs, including the defendant's, in sequential order. All of the individuals were similar in appearance. Randall selected the defendant's picture and stated that he was eighty percent sure that he was the driver of the van. Two days later, the same photographs were shown to Goodrich and Hebert at Tattoo Royale. Goodrich and Hebert were given the same protocol as was given to Randall. They were shown the photographs separately, and neither one was informed whether the other had made an identification. Goodrich viewed the photographs in the array simultaneously, selected a picture of the defendant, and said he was one hundred percent sure "that this is the guy I saw." After viewing the photographs simultaneously, Hebert also selected the defendant's photograph and stated that he was eighty percent sure the defendant was the person he saw driving the van.

The judge found that the photographic array was fair and that the police did nothing that could be construed as overly suggestive. He found that Randall, Hebert, and Goodrich selected the defendant's photograph based upon their "independent memory of what they observed at the time of the event in question." The judge then concluded that the defendant had not met his burden of proving that the identification procedures employed were so unnecessarily suggestive and conducive to irreparable mistaken identification so as to deny the defendant due process of law, see Silva-Santiago, supra at 795-796, and he denied the motion to suppress.

On appeal, the defendant argues that the judge erroneously concluded that the array was fair and that the identification procedures employed by the Springfield police were not unduly suggestive. He claims that his photograph was "unduly emphasized" because the other individuals depicted in the array did not look enough like him. Relying on (1) the fact that the same police officer who created the array conducted the identification procedures with Hebert and Goodrich, and (2) the absence of a finding regarding the lack of a double-blind procedure, the defendant argues that the identification procedure was unduly suggestive. The defendant also claims that the identification procedures involving Hebert and Goodrich were unduly suggestive because the photographs were shown to them simultaneously.

"When reviewing a motion to suppress evidence, we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).

We discern no error. The men depicted in the array possessed reasonably similar features and characteristics to the defendant, including similar facial hair, see Silva-Santiago, supra at 795, and the identification procedure largely complied with the protocol set forth in Silva-Santiago, supra at 797-798. The judge's failure to make findings regarding the absence of a double-blind procedure is inconsequential where, as here, "there was no evidence that the [officer] who presented the photographic arrays signaled a particular response to, or otherwise attempted to influence, any of the eyewitnesses." Id. at 797. And, the fact that Hebert and Goodrich were shown the photographs simultaneously does not require suppression. See id. at 798-799 ("[T]he choice of a simultaneous rather than a sequential display of photographs shall go solely to the weight of the identification, not to its admissibility"); Commonwealth v. Thomas, 476 Mass. 451, 464 (2017) (same).

2. Sufficiency of the evidence. At trial, Carrier testified that she was robbed by a skinny, tall, white male with a beard. The man entered the tanning salon, placed a knife on the counter, and demanded money from the cash register. Carrier attempted to press the tanning salon's "panic button," but the man "swiped [her] hand out of the way." Carrier gave the man all of the money in the cash register and he left. Carrier called 911, ran next door to Tattoo Royale, and told Hebert, Randall, and Goodrich that she had been robbed. The three men ran out the front door in hopes of finding the perpetrator. They saw a van coming up the alleyway on the side of the building. Randall ran alongside the van for a short distance as it sped away and went through a red light. He threw a bottle which hit the van on the passenger side, causing a small dent. Randall and Hebert noted the license plate number of the van and they immediately gave the information to police officers who had responded to the scene of the robbery. The van was registered to the defendant's wife. It was located later that day and brought to the Springfield police department where Carrier, Randall, Hebert, and Goodrich identified it as the van they saw after the robbery. In particular, Randall observed a dent in the place where he had thrown the bottle. As we have discussed, Hebert, Randall, and Goodrich identified the defendant's photograph and each of them testified at trial that they recognized him as the person who was driving the van. Carrier also participated in an out-of-court identification procedure, but she was unable to make an identification.

The theory of the defense was misidentification. To this end, the defendant presented the testimony from a licensed private investigator who had enhanced a still image of the robber, taken from the tanning salon's surveillance camera. That image showed that the robber had a full beard.

After the Commonwealth rested and again at the close of evidence, the defendant moved for required findings of not guilty on the assault and battery and armed robbery charges on the ground that Carrier could not identify him as the person who robbed her. "In determining whether the evidence was sufficient to survive a motion for a required finding, we [ask] whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Arce, 467 Mass. 329, 333 (2014). See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). "As the defendant moved for a required finding of not guilty at the close of the Commonwealth's case and again at the close of all the evidence, we first consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time." Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378 (2017) (quotations omitted). "Then, we consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case." Ibid.

The Commonwealth presented evidence from three witnesses who observed a man driving a van down the alleyway immediately after the robbery. The driver sped away, running a red light. A rational trier of fact reasonably could conclude that the driver was fleeing the scene because he committed the robbery. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005). From the witnesses' subsequent identifications of the defendant as the driver of the van, the jury also could infer that the defendant had committed the robbery. The investigator's testimony, that the robber appears on the surveillance video to have a "full beard," did nothing to negate the Commonwealth's evidence. See Ross, supra at 381, quoting from Kater v. Commonwealth, 421 Mass. 17, 20 (1995) ("Deterioration occurs where 'evidence for the Commonwealth necessary to warrant submission of the case to the jury is later shown to be incredible or conclusively incorrect' "). Accordingly, the defendant's motions for required findings of not guilty were properly denied.

3. Ineffective assistance. The defendant claims that trial counsel was constitutionally ineffective because he failed to (1) "fully confront" the composition or administration of the photographic array, (2) move to suppress identifications of the van, and (3) request an instruction pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Recognizing that the preferred method for raising this claim is through a motion for a new trial, Commonwealth v. Zinser, 446 Mass. 807, 810 (2006), the defendant argues that "the factual basis of the claim appears indisputably on the trial record." Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

Applying our familiar standards for reviewing counsel's performance, and having reviewed the record, we conclude that the defendant's claim fails. The jury were aware of the manner in which the photographic arrays were compiled and administered. Through cross-examination, defense counsel highlighted Carrier's failure to make an identification, and pointed to an inconsistency in Goodrich's identification. Then he argued in closing that the identifications were not reliable because (1) "none of the people in the photographs have a full beard," and (2) Carrier did not choose the defendant's photograph. Where, as here, counsel "cross-examined the witnesses extensively, and strenuously argued the weakness of the identification testimony, trial counsel's actions may not be characterized as 'manifestly unreasonable.' " Commonwealth v. Conceicao, 388 Mass. 255, 265 (1983), quoting from Commonwealth v. Levia, 385 Mass. 345, 354 (1982). Nor did they deprive the defendant of an otherwise available, substantial ground of defense.

While the defendant argues that trial counsel should have filed a motion to suppress identifications of the van by Randall, Hebert, Goodrich, and Carrier, he has not satisfied his burden of showing that such a motion would have been successful. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004). Moreover, based on the record before us, we discern no basis upon which a reasonable juror could "conclude that the investigation was careless, incomplete, or so focused on the defendant that it ignored leads that may have suggested other culprits," Silva-Santiago, 453 Mass. at 801, such that a Bowden instruction would have been appropriate.

Judgments affirmed.

      The defendant was acquitted of assault by means of a dangerous weapon.

      Specifically, the judge found that the group discussed "[w]hat kind of car it was, the license plate number, where it went, that type of thing."

      Randall was given an "identification protocol" which states: (1) "You will be asked to view a set of photographs"; (2) "The alleged perpetrator MAY OR MAY NOT be in the photographs"; (3) "It is just as important to clear a person from suspicion as to identify a person as a suspect"; (4) "Individuals depicted in the photographs may not appear exactly as they did on the date of the incident. Features such as weight, facial hair, and hairstyles are subject to change"; (5) "Regardless of whether an identification is made, the investigation will continue"; and (6) "In your own words, how certain are you of the identification?" Randall read, initialed, and signed the protocol.

      The judge found that "[t]here is nothing about any one photograph that would tend to attract someone's attention."

      "The standards on which the effectiveness of counsel will be evaluated are well known." Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 42 (2010). "The defendant must show that counsel's performance 'f[ell] measurably below that which might be expected from an ordinarily fallible lawyer' and that, as a result, the defendant has been deprived of 'an otherwise available, substantial ground of defence.' " Ibid., quoting from Commonwealth v. McCrae, 54 Mass. App. Ct. 27, 29 (2002). See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).


text:
    COMMONWEALTH v. Allen WOOD.
    17-P-991
    Appeals Court of Massachusetts.
    Entered: May 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial, the defendant, Allen Wood, was convicted of possession with intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A(a ), and conspiracy to violate the drug laws, in violation of G. L. c. 94C, § 40. On appeal, the defendant claims that trial counsel was ineffective for failing to move for a required finding of not guilty at the close of the Commonwealth's evidence. We affirm.

Background. The evidence, considered in the light most favorable to the Commonwealth, permitted the trial judge to find the following facts. See Commonwealth v. Penn, 472 Mass. 610, 618 (2015). See also Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On July 19, 2013, Detective Robert Lewis and other members of the Framingham police department executed a search warrant at 26 Willis Street, Apartment 34, Framingham, for evidence relating to the distribution of crack cocaine. The apartment was small, containing a living room, a bedroom, a bathroom, and a kitchen. Someone had been sleeping on the living room couch.

When the police entered the apartment, the defendant was standing in the kitchen. Shortly thereafter, Ed Brown entered the apartment. The police found sixteen individually wrapped packages of crack cocaine hidden in Brown's socks. Detective Lewis testified that this amount of crack cocaine and its packaging was indicative of distribution and not personal use.

In the search of the living room, the police found a box of plastic fold-top bags, "diaper bags," a pink box with more fold-top bags and a spoon, and a notebook that Detective Lewis opined was a "drug ledger." The ledger included a page labeled "Al's contact list," which contained the names and telephone numbers of people whom Detective Lewis recognized as known Framingham drug users and traffickers. , On the inside cover of the notebook was a list of numbers, "1 equals 40, 2 equals 80, 3 equals 120 ... 25 equals 1000." Detective Lewis noted that these numbers corresponded to the current street prices of crack cocaine in Framingham. The detective also discovered multiple identification cards belonging to individuals whom he knew to be drug users in Framingham. He opined that drug dealers hold onto an identification card as collateral when an individual owes them money.

In the search of the apartment's bedroom, Detective Lewis found a number of bills containing the defendant's name and address at 26 Willis Street, Apartment 34.

1. Ineffective assistance of counsel. To prevail on an ineffective assistance claim, the defendant must demonstrate that the performance of counsel fell below that of an ordinary fallible lawyer, and that such failure "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant claims that counsel failed to move for a required finding at the close of the Commonwealth's case and that this failure deprived the defendant of an opportunity to argue insufficiency of the evidence before the trial judge. In substance, the defense did move for a required finding. Although not prefaced with the specific words "motion for a required finding of not guilty," counsel argued at the close of the Commonwealth's case that the Commonwealth's evidence was insufficient to support a conviction.

Furthermore, counsel was not ineffective because there was sufficient evidence that the defendant committed the crimes charged. See Commonwealth v. Costa, 407 Mass. 216, 224 & n.9 (1990) (counsel not ineffective in not moving for required finding of not guilty that would have been denied). To sustain a conviction for possession of a class B substance with the intent to distribute, the Commonwealth is required to prove that the defendant (1) knowingly and intentionally possessed the class B illegal substance (i.e., cocaine), and (2) did so with the specific intent to distribute it. Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012). "Intent may be inferred from the surrounding facts proved at the trial provided any such inference is reasonable." Ibid., citing Commonwealth v. Gollman, 436 Mass. 111, 116 (2002).

Because the drugs were found on Brown, the Commonwealth sought to prove that the defendant had possession of the cocaine based on theories of joint venture and constructive possession. Joint venture criminal liability "has two essential elements: [1] that the defendant knowingly participated in the commission of the crime charged, and [2] that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). Constructive possession of a controlled substance requires proof that the defendant had knowledge of the location of illegal drugs, plus the ability and intent to exert dominion and control over them. Commonwealth v. Proia, 92 Mass. App. Ct. 824, 830 (2018). In order to prove constructive possession, the Commonwealth must present evidence that establishes a "particular link" between the defendant and the drugs. Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013). This link "may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989) (quotation omitted). See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014).

The evidence presented by the Commonwealth was sufficient to show that the defendant, at a minimum, knowingly participated with Brown in selling drugs. The evidence permitted the inference that the defendant and Brown shared a small one-bedroom apartment where drug-trade related paraphernalia was found throughout the common areas. A notebook described by Detective Lewis as a drug ledger contained a list of known Framingham drug users and traffickers, as well as a price list for crack cocaine in Framingham. The ledger did not contain the defendant's contact information, thus permitting the inference that it belonged to him. Brown was found with sixteen individually packaged bags of crack cocaine in his socks. The judge was permitted to draw an inference that "Al" was the defendant, that he kept records of a cocaine sales operation, that Brown was selling crack cocaine he kept in his socks, and that the defendant and Brown were working together with a shared intent to control and distribute crack cocaine from the apartment. See Commonwealth v. Ormond O., 92 Mass. App. Ct. 233, 237 (2017).

The evidence also was sufficient to support a finding of guilt of conspiracy to sell crack cocaine. To sustain a conviction for conspiracy, the Commonwealth must prove that the defendant and at least one other person knowingly joined in an agreement or plan to accomplish some criminal or unlawful purpose. Commonwealth v. Costa, 55 Mass. App. Ct. 901, 901 (2002). "The acts of different persons who are shown to have known each other, or to have been in communication with each other, directed towards the accomplishment of the same object, especially if by the same means or in the same manner, may be satisfactory proof of conspiracy." Commonwealth v. Peck, 86 Mass. App. Ct. 34, 41 (2014) (quotation omitted). The same evidence was sufficient to show that the defendant conspired with Brown to distribute controlled substances. Contrast Commonwealth v. Doty, 88 Mass. App. Ct. 195, 203-204 (2015). The evidence here was indicative of an agreement and organized effort between the defendant and Brown to distribute drugs to others.

Judgments affirmed.

      "Diaper bags" are the remnants of plastic bags with the corners cut off. Detective Lewis found these significant because drug distributers often package narcotics in the torn corners of plastic bags.

      There was also a page labeled "Jen's contact list," which the judge could infer referred to Brown's girl friend, "Jennifer."

      In addition, Brown's Comcast account number and address were found in the notebook.

      One bag of crack cocaine cost $40, two bags cost $80, three bags cost $120, and so on.

      Two gas bills, a debit card bill, a Verizon bill, and an Elder Services bill.


text:
    COMMONWEALTH v. Alfredo PINEDA-MENDOZA.
    17-P-72
    Appeals Court of Massachusetts.
    Entered: May 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in the District Court, the defendant was convicted of indecent assault and battery on a person under the age of fourteen, G. L. c. 265, § 13B. On appeal, he claims that the judge erroneously allowed the victim's mother to testify as a first complaint witness and then restricted defense counsel's cross-examination of her, preventing the defendant from exposing the mother's bias and motive to lie. He further argues that the admission of multiple first complaint testimony requires reversal of his conviction. We affirm.

Background. The judge could have found the following facts. The victim, whom we shall call Fran, was thirteen years old at the time of the incident. She was living with her mother and sister in an apartment on the second floor of a two story home in Revere. The home was owned by the defendant and his family, who lived on the first floor. On June 6, 2015, Fran was cleaning the apartment when the defendant knocked on the door. He told Fran that he had come to fix a light in a storage room. Upon entering the apartment, the defendant asked Fran where her mother and sister were. She told the defendant that they were at work, after which the defendant went into the storage room where he remained briefly before coming back into the kitchen where Fran was standing. The two were speaking when the defendant grabbed Fran by the waist, gave her a "side hug," and attempted to kiss her. Fran turned her face and the defendant kissed her cheek. The defendant grabbed Fran again as she was trying to push him away and held her in a "bear hug." He then touched Fran on her buttocks with his hand. At some point during the episode, the defendant offered to give Fran a graduation gift or some money, but asked her not to tell her mother. Eventually, the defendant left and Fran slammed and locked the door behind him.

Fran went to her bedroom and locked herself inside. She then called her mother and told her what had happened. The mother immediately left work and returned home. She and Fran spoke with the police at their apartment that same day. The police then spoke with the defendant, who consented to an interview at the police station. He acknowledged that he was in the apartment, but denied that he had kissed or touched Fran. A video recording of his interview was played for the judge and admitted in evidence.

The defendant did not testify at trial, but pursued a trial strategy of undermining the credibility of the Commonwealth's witnesses through cross-examination. The defendant also presented evidence, through the testimony of his son, which he claimed demonstrated that Fran had fabricated the assault in retaliation for an incident which had occurred one week earlier.

Discussion. 1. First complaint. At trial, the mother testified as a first complaint witness. The defendant argues that such evidence is inadmissible where, as here, the victim immediately reports the assault and a judge is the trier of fact. Because the defendant did not object to the mother's testimony on this ground, "we review to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 699 (2009). We discern no error, much less one that created a substantial risk of a miscarriage of justice.

The first complaint doctrine "exists to facilitate credibility determinations where an allegation of sexual assault is at issue." Commonwealth v. Mayotte, 475 Mass. 254, 260 (2016). It "is a neutral rule of evidence," id. at 255, which applies to bench and jury trials alike. "[T]he doctrine gives the fact finder'the maximum amount of information with which to assess the credibility of the ... complaint evidence as well as the over-all credibility of the victim' " (emphasis supplied). Commonwealth v. Aviles, 461 Mass. 60, 72 (2011), quoting from Commonwealth v. Licata, 412 Mass. 654, 659 (1992). Indeed, "[t]he issue of witness credibility is the same" whether the case is tried before a judge or a jury. Mayotte, supra at 260. As the Commonwealth notes in its brief, first complaint testimony has often, and appropriately, been introduced and considered in bench trials. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008). The fact that the assault was immediately reported is of no consequence, because our cases do not limit the admissibility of fresh complaint evidence to situations where there is a delay in reporting. See id. at 444 (assault reported morning after it had occurred); Commonwealth v. McCoy, 456 Mass. 838, 840 (2010) (rape immediately reported). See also Commonwealth v. Kennedy, 478 Mass. 804, 814 (2018) (highlighting "continued need" for first complaint testimony in sexual assault cases because "[q]uestions involving a complainant's credibility ... may be at issue even absent any delay in disclosure"). In short, the judge did not abuse his discretion by admitting the first complaint testimony.

2. Multiple complaint testimony. Next, the defendant argues that the judge erred in allowing the testimony of multiple first complaint witnesses. He claims that there was a "piling on" of first complaint testimony by Fran, her mother, and a Revere police detective. See Commonwealth v. King, 445 Mass. 217, 242-243 (2005), cert. denied, 546 U.S. 1216 (2006). Because the defendant did not object, we review the alleged error to determine whether there was a substantial risk of a miscarriage of justice.

Assuming without deciding that the challenged testimony was inadmissible under the first complaint doctrine, "we presume that the judge was not affected, as a jury might be, by the [additional] testimony." Murungu, supra. The defendant has given us no reason to depart from that presumption. To the extent there was any error, it was nonprejudicial.

3. Cross-examination. Finally, the defendant argues that the judge impermissibly restricted his ability to cross-examine Fran's mother to establish her bias, prejudice, and motive to lie. During his cross-examination, defense counsel asked the mother if she had filed a small claims case against the defendant. The Commonwealth objected on relevance grounds. The judge overruled the objection, stating, "[I]t may have something to do with bias, credibility, that type of thing, so I'll allow it." The mother responded that she had filed a small claims case against the defendant. Defense counsel then asked the mother whether she had consulted with attorneys in regard to bringing a civil case against the defendant, to which the mother replied that she had not. Defense counsel asked the mother whether she could "see two ladies sitting in this courtroom" and whether they were the mother's "civil lawyers." The mother responded, "They're just listening." Counsel continued, "How do you know them? Did you hire them as your civil lawyers?" The mother replied, "No. We just communicated and she's here because of the case and that's it." Counsel asked, "What case?" and the mother stated, "I don't know. She might be investigating something, I don't know." Counsel then posed the question whether the mother believed a conviction would help with her civil case. The judge interjected, stating, "I'm going to exclude that. That's just speculation." Defense counsel made no objection and moved on to another topic.

The defendant now claims that the judge violated his right to confront witnesses against him by curtailing his cross-examination of the mother regarding her pecuniary motive. His claim fails for two reasons. First, the judge permitted trial counsel to inquire about the small claims law suit the mother filed against the defendant. Second, a judge has discretion to limit cross-examination of a witness "where the offered evidence is 'too speculative.' " Commonwealth v. Avalos, 454 Mass. 1, 7 (2009), quoting from Commonwealth v. Tam Bui, 419 Mass. 392, 402, cert. denied, 516 U.S. 961 (1995). Here, defense counsel's question regarding whether a conviction would benefit the mother's civil case [of which there was no evidence or offer of proof] called for speculation. In these circumstances, we discern no abuse of discretion in the judge's termination of the line of questioning regarding the filing of a civil law suit.

Judgment affirmed.

      A pseudonym.

      The son testified that he and the defendant had returned to the house around 3:30-4:00 a.m. on Saturday, May 31, and saw four male "kids" leaving Fran's apartment. Fran's mother was not home at the time. The following Friday, which was the day before the incident, the son heard Fran and her mother fighting. The son heard Fran say, "I can't wait to leave this house, can't wait to move out." Defense counsel argued in closing that Fran's complaint, made one day later, was "some kind of retaliation" for the Friday conversation with her mother.

      The mother testified that Fran called her at work on June 6, 2015, and told her that "the man from downstairs" had knocked on the door and said that he needed to change a light bulb. The mother relayed Fran's statements that the man "kept trying to get close to me and to kiss me and he kept following me and I was asking him to leave and he kept saying, give me a kiss, give me a kiss." Fran "said that she moved away from where she was and that's when she said that he struck her on her butt or touched her butt." Fran told her mother that the man said that Fran "was almost finished with eighth grade and that he needed to give her a gift." When Fran "said no he said, 'I'm going to give you money, but don't tell your mother because your mother gets very mad.' "

      While courts continue to refer to the first complaint doctrine as an evidentiary "rule," the Supreme Judicial Court has stated that it "view[s] the doctrine as a body of governing principles to guide a trial judge on the admissibility of first complaint evidence." Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).

      Just like a jury, a judge may make "inaccurate assumptions regarding stereotypes about delayed reporting of a sexual assault or about sexual assault victims in general." Commonwealth v. King, 445 Mass. 217, 240 (2005), cert. denied, 546 U.S. 1216 (2006).


text:
    John DOE, Sex Offender Registry Board No. 169 v. SEX OFFENDER REGISTRY BOARD.
    17-P-523
    Appeals Court of Massachusetts.
    Entered: May 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, John Doe, appeals from a Superior Court judgment upholding, on judicial review under G. L. c. 6, § 178M, and G. L. c. 30A, § 14, an adjudicatory decision of the Sex Offender Registry Board (board) reclassifying Doe from a level two to a level three sex offender. Doe argues that the board's hearing examiner erred or abused his discretion (1) in denying Doe's motion for funds to retain an expert witness to assist at the hearing; (2) in relying on hearsay in a 2002 police report concerning Doe's conduct, where the resulting charges were later resolved in Doe's favor; and (3) in giving insufficient weight to certain scholarly articles concerning sex offender recidivism that Doe submitted at the board hearing. We affirm.

Background. In 1993, at the age of seventeen, Doe admitted to sufficient facts and was convicted on one count each of unnatural and lascivious acts with a child under sixteen and indecent assault and battery on a child under fourteen. The victim was Doe's five year old nephew, whom he had been babysitting. As a result, in 2002, the board classified Doe as a level two offender.

The board later learned that in 2002, Doe had been charged with (but not convicted of) three child pornography offenses involving a female victim, and that in 2006, Doe had pleaded guilty to seven counts of rape and abuse of a child, involving both male and female victims. The board initiated a proceeding to reclassify Doe as a level three offender. Due to Doe's incarceration, and then the decision in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 309-311 (2015) (Doe No. 380316 ) (requiring board to apply clear and convincing evidence standard in classifying offenders), the reclassification hearing did not occur until 2016. Doe was given a level three classification, and these judicial review proceedings followed.

1. Expert funds. Before the hearing, Doe moved for funds to retain an expert, on the grounds that Doe had been a juvenile at the time of his first offense and that he had a significant mental health history. An offender seeking such funds has the burden of showing a need for expert testimony on an issue that is particular to him, is not a matter of common knowledge or experience, and has a bearing on his classification. Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008). In considering the need for an expert, it bears mention that the board's detailed classification regulations are imbued with the board's expertise and that the examiner must be guided by those regulations in classifying individual offenders. Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 786 (2006).

The hearing examiner denied the motion for funds, and in light of the above principles, we see no abuse of discretion in that ruling. First, the examiner reasoned that the significance of having been a juvenile at the time of one's first offense is fully addressed in the board's classification regulations, 803 Code Mass. Regs. § 1.33 (2016), and Doe had not shown that expert testimony on this issue would be anything but duplicative. Second, as to Doe's mental health, the hearing examiner observed that the sole mental health evidence Doe submitted in support of his motion for funds-a 1993 sentencing evaluation-concluded that Doe did not at that time "meet the regulatory standard for mental illness." That material predated the hearing by twenty-three years, and the hearing examiner did not rely, in his classification decision, on Doe having any "mental abnormality," as defined in the board's classification regulations, 803 Code Mass. Regs. § 1.33(1), that would increase his risk of recidivism. No expert on Doe's mental health was required.

2. Hearsay in police report. Doe challenges the hearing examiner's consideration of statements in a police report, where the resulting charges were resolved in Doe's favor. The report detailed allegations that, in 2002, Doe had coerced a sixteen year old girl in his neighborhood to remove her clothes and masturbate while Doe recorded her actions on a video camera. Doe later allegedly distributed copies of the recording on the Internet and to others in the neighborhood.

Based on these allegations, contained in detailed and consistent statements from the victim and three other witnesses, Doe was charged with posing or exhibiting a child in a state of nudity, distributing child pornography, and possessing child pornography. At trial, Doe's motion for required findings of not guilty was allowed as to the posing and possession charges, and a jury then found him not guilty of the distribution charge. Despite this favorable resolution, the hearing examiner found the details of the report to be sufficiently reliable to warrant consideration in classifying Doe, particularly where the police were furnished with a copy of the video in which they recognized the victim, and where the victim had no motive to lie.

A hearing examiner may rely on statements contained in a police report "depending on the general plausibility and consistency of the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like." Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 313 (2007). "[T]he fact that Doe was ultimately acquitted of the criminal charges does not render the report inadmissible or unreliable." Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015) (Doe No. 356011 ), citing Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 396 (2013) (Soe No. 252997 ).

Given these well-established principles, the burden here is on Doe to demonstrate some particular reason why the required findings and not guilty verdict in his case render the hearsay in the police report unreliable. These dispositions could have resulted from a variety of factors that have little or nothing to do with the truth of the allegations-for example, the suppression of some evidence, as occurred here, or the failure of a witness to appear at trial. Or, they could have resulted from witness recantations or other factors that might call the truth of the allegations into serious question. Doe failed to offer any evidence on this issue.

Also, that the Commonwealth failed to prove its case beyond a reasonable doubt at trial does not make the allegations unreliable under the lower standard of proof applicable at board hearings. Doe No. 356011, 88 Mass. App. Ct. at 80. Although the board must now find an offender's ultimate risk classification based on clear and convincing evidence, see Doe No. 380316, 473 Mass. at 298, Doe here concedes that subsidiary facts still need be proved only by a preponderance of the evidence. We conclude that the hearing examiner did not err in relying on the police report to conclude that Doe had engaged in the conduct alleged, and then considering that conduct in determining Doe's ultimate risk classification.

3. Scholarly articles. Doe argues that the hearing examiner abused his discretion by giving insufficient weight to several scholarly articles that Doe submitted under 803 Code Mass. Regs. § 1.33(37) (requiring board to "consider any information that it deems useful in determining risk of reoffense and degree of dangerousness posed by any offender"). It is an abuse of discretion for a hearing examiner to reject "current, validated evidence" demonstrating the relevance of a risk factor not addressed in the board's regulations, unless the hearing examiner cites studies to the contrary. Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 607-608 (2013), citing Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 622-623 (2010). Judged against these standards, we see no abuse of discretion in the hearing officer's treatment of the articles that Doe submitted.

First, Doe criticizes the lack of weight given to articles he submitted showing that juveniles reoffend at different rates and for different reasons than adults. The hearing officer quite reasonably considered these articles irrelevant, both because the board's regulations now explicitly consider how various risk factors affect juveniles differently from adults, and because Doe himself had not merely offended as a juvenile but repeatedly reoffended as an adult.

Second, Doe argues that more weight should have been given to a 2008 article concluding that male offenders (like himself) who had male and female victims had no higher rates of recidivism than other sex offenders, and only those male offenders with exclusively male victims had higher recidivism rates. But the board's regulation, 803 Code Mass. Regs. § 1.33(17), cites four articles-the most recent dated 2007-concluding that male offenders who have offended against male victims reoffend at a higher rate. Doe's 2008 article does not cite, let alone question the validity of, those articles.

To the contrary, Doe's article acknowledges that "[r]eports have consistently found that sex offenders who have molested males are at substantially greater risk for sexual offense recidivism .... This general finding is so prevalent in the literature that it has even been included in the explanatory text for pedophilia in the Diagnostic and Statistical Manual of Mental Disorders-4th Edition-Text Revision (American Psychiatric Association, 2000)." Doe's article then goes on to suggest that the outlier result it reports might be explainable based on factors such as the specific population it studied: participants in a particular kind of treatment program where confidentiality is protected more than in other programs.

In these circumstances, the hearing examiner was not required to view Doe's single 2008 article as "current, validated evidence" demonstrating the relevance of a risk factor not addressed in the board's regulations. This is particularly so where the pertinent regulation cites articles as recent as 2007 reaching the contrary conclusion, and Doe's article itself acknowledges that this contrary conclusion is widely shared in the relevant literature and is in fact used in "most actuarial instruments" to predict sex offender recidivism.

Finally, Doe faults the hearing examiner for giving too little weight to two articles about sex offender treatment. The first article suggests that participation in such treatment reduces recidivism rates-but so does the board's regulation, 803 Code Mass. Regs. § 1.33(32), and the hearing examiner's decision in Doe's own case. The examiner gave this factor only moderate weight, however, in accordance with 803 Code Mass. Regs. § 1.33(32)(a)(1), as Doe had not completed a course of treatment during his ten years of confinement and had no plan to do so upon release.

Doe's second article, from 2005, shows, according to him, that "lack of motivation and progress in treatment show little relationship to recidivism." But the hearing examiner's decision did not consider in any way Doe's degree of "motivation" in treatment. And to the extent the examiner's observation that Doe had failed to complete treatment is viewed as considering Doe's lack of "progress," such failure to complete treatment is a factor required to be considered by the board's regulations, 803 Code Mass. Regs. § 1.33(32)(a)(1), (3), and is supported by citations more recent than 2005, including a 2009 article by the same author who wrote the 2005 article Doe relies upon.

Conclusion. Doe has failed to identify any error or abuse of discretion in the board's decision, and therefore we must uphold it.

Judgment affirmed.

      Moreover, we note the obvious point that the seven rapes for which Doe was convicted in 2006 were committed as an adult.

      The examiner's comment that Doe "harbored deviant sexual behaviors from a very young age" was not a diagnosis of a "mental abnormality," nor did the examiner cite it as supporting any of the board's other specific risk-aggravating factors. The comment created no need for expert evidence.

      The docket from the criminal case reflects that Doe filed a motion to suppress, which was allowed in part, but the record before us contains no further details.

      See generally Soe No. 252997, 466 Mass. at 387 ("[T]he hearing examiner may consider the facts underlying the alleged sex offenses if proved by a preponderance of the evidence"); Doe No. 356011, 88 Mass. App. Ct. at 80. Cf. Care & Protection of Laura, 414 Mass. 788, 791-793 (1993) (in care and protection cases, subsidiary facts need only be proved by preponderance of evidence, even though ultimate question of parental unfitness must be proved by clear and convincing evidence).

      Also, Doe neither argued that factors specific to him made the 2008 article a better predictor of his recidivism rate than the relevant portion of the board's regulation, nor did he assert a claim that the 2008 article was a sufficient basis to hold that portion of the regulation invalid.

      That 2005 article itself concluded that although "[i]n general, evaluations of treatment progress showed little relationship to recidivism ... [n]evertheless, there were some recent [studies] in which ratings of progress were significantly related to recidivism."


text:
    Niklaus J. WARD'S CASE (and a companion case ).
    16-P-1527 16-P-1721
    Appeals Court of Massachusetts.
    Entered: May 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Theodore Van Sickle's Case.

   For convenience we discuss in one memorandum and order two cases involving the same employer and arising from the same factual background. Pursuant to, and for the reasons stated in the decision of this court in Janocha's Case, Mass. App. Ct. No. 16-P-1181, issued this day, we affirm the decisions of the reviewing board of the Department of Industrial Accidents on appeal in Ward's Case, Mass. App. Ct. No. 16-P-1527, and Van Sickle's Case, Mass. App. Ct. No. 16-P-1721.

Decisions of the reviewing board affirmed.

      The Travelers Casualty & Surety Company's reinsurance contract at issue in the instant appeals did not contain a clause that required the terms of the contract to conform to Massachusetts workers' compensation law. We conclude that neither that fact, nor any other factual differences in the three cases, provides grounds to distinguish our analysis in Janocha's Case.


text:
    COMMONWEALTH v. Tyrone GARDEN.
    17-P-1227
    Appeals Court of Massachusetts.
    Entered: May 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Tyrone Garden, was accused of raping a woman on September 18, 1991, and the Commonwealth obtained a complaint in District Court charging the defendant with aggravated rape, G. L. c. 265, § 22(a ), on September 11, 2006. However, the indictment did not issue until April 19, 2007-seven months after the applicable limitation period had expired. See G. L. c. 277, § 63.

Prior to trial, the defendant unsuccessfully moved to dismiss the indictment on the grounds that the issuance of a complaint did not toll the limitations period. The defendant's subsequent request to proceed by way of an interlocutory appeal of this ruling was also unsuccessful. In denying the request, a single justice of the Supreme Judicial Court indicated that, in the event of a conviction after trial, the defendant could raise the issue in his direct appeal. However, on the eve of trial, the defendant entered a guilty plea-waiving his right to pursue an appeal of the orders on all pretrial motions.

At that time, the same statute of limitations issue that the defendant had raised in his motion to dismiss was pending before the Supreme Judicial Court in an unrelated case, Commonwealth v. Perella, 464 Mass. 274 (2013) (Perella ). Eventually (approximately eight months after the defendant's plea), the Supreme Judicial Court decided Perella in a manner that favored the defendant's interpretation. Id. at 283-284.

The defendant thereafter sought to vacate his guilty plea by way of a motion for a new trial. Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). In his motion, the defendant argued that, where he had raised the statute of limitations issue, justice was not served by his guilty plea to a crime for which the limitations period had run. Alternatively, the defendant argued that his counsel was ineffective because he failed to investigate and advise him of the fact that the issue he litigated was pending in the Supreme Judicial Court and did not, on the basis of the pending issue, move to continue his trial. The motion judge (who was also the plea judge) denied the defendant's motion, indicating that, given the age of the case, he would not have granted a continuance of the trial. This appeal followed, and we affirm.

Discussion. We review the denial of a motion to withdraw a guilty plea to determine whether there has been an abuse of discretion or other error of law. See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018).

1. Rule 30(b). The defendant first contends that a new trial is warranted because Perella decided in his favor that the statute of limitations had run on the indictment to which he pleaded guilty. Id. at 283-284. While we agree the indictment in the defendant's case fell outside the limitation period of "within [fifteen] years of the date of commission of [the] offense," set forth in G. L. c. 277, § 63, the claim does not warrant a new trial.

The defendant's guilty plea to the indictment "waive[d] all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea," Commonwealth v. Berrios, 84 Mass. App. Ct. 521, 524 (2013), quoting from Commonwealth v. Fanelli, 412 Mass. 497, 500 (1997), and a violation of the statute of limitations is a nonjurisdictional defect. See Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 372 (2003), quoting from Smith, Criminal Practice and Procedure § 1321 (2d ed. 1983 & Supp. 2002).

Furthermore, we are not persuaded by the defendant's assertion that his guilty plea to a defective indictment created an injustice. The evidence of the defendant's guilt, which included DNA evidence linking the defendant to the rape was overwhelming, and thus his challenge to the timeliness of the prosecution, unlike some other evidentiary type challenges, did not undermine the "integrity of [the] verdict" here. Commonwealth v. Pring-Wilson, 448 Mass. 718, 736 (2007). We perceive no error.

2. Ineffective assistance. The defendant also argues that plea counsel, who did not advise him about the posture of Perella or, in the alternative, move for a continuation of the trial on the basis of Perella, rendered ineffective of counsel. We are not persuaded.

To prove ineffective assistance of counsel, the defendant must show "[1] serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer-and, [2] ... [that] it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant's assertion fails on both prongs of this bipartite analysis.

This case is controlled in all material respects by the holding in Commonwealth v. Boria, 460 Mass. 249 (2011), which raised a similar challenge to counsel's failure to seek a continuance pending the outcome of an issue on appeal in an unrelated case. There, the court was not persuaded that the failure to seek what would have been a lengthy stay of the proceedings on the "chance that an issue may be decided to the defendant's advantage, constitutes ineffective assistance of counsel," id. at 253-254, and neither are we.

Furthermore, when a defendant challenges his counsel's failure to file a motion, "the proper question is whether filing of the motion 'might have accomplished something material for the defense,' " Commonwealth v. Lally, 473 Mass. 693, 703 n.10 (2016), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977), but a request for a continuance would have been futile here. The motion judge, who was also the plea judge, clearly indicated that, given the age of the case, he was not granting any continuances, and the judge would have been well within his discretion to do so. Commonwealth v. Burston, 77 Mass. App. Ct. 411, 417 (2010).

The defendant's challenge to counsel's performance also fails on the prejudice prong, as the defendant obtained a favorable disposition in the face of an overwhelmingly strong case for the Commonwealth. See Commonwealth v. Pike, 53 Mass. App. Ct. 757, 763 (2002) (no prejudice when defendant received more favorable disposition under plea agreement than he likely would have received after trial). We perceive no prejudice.

Order denying motion to withdraw guilty plea affirmed.


text:
    COMMONWEALTH v. Matias BARCA.
    16-P-1056
    Appeals Court of Massachusetts.
    Entered: May 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant, Matias Barca, of unarmed robbery and four counts of attempt to commit a crime (unarmed robbery). The defendant now appeals alleging that the trial judge erred in allowing the victims to identify the defendant in court and in denying the defendant's motion to recuse herself from presiding over the trial. We affirm.

Background. In the early morning hours of June 26, 2009, a group of friends, ranging in age from fifteen to about twenty years old, was walking home from Davis Square in Somerville when a group of men started following them. Three of those men caught up to the group of friends; one put a knife to the throats of two of the young men, while the other two robbed them. The victims all agreed that one white male, one black male, and one Hispanic male were the primary actors, with the rest of the group of men standing off to the side. When two of the victims attempted to run away, a third victim called 911 on his cellular telephone. As a police cruiser approached, the group of men fled the scene. Police apprehended two of the suspects, including the defendant, a short distance away as they attempted to leave the area in a black sport utility vehicle. Shortly thereafter, police brought two of the victims over for a "show up" identification. Both victims identified one of the suspects, who is black. Only one of the victims identified the defendant, who is Hispanic; that victim told police that while the defendant was present for the robbery, he did not participate. At that time, police did not arrest the defendant.

The next morning, Somerville police Detective Paul Duffy and four of the victims met at the home of two of the victims. Duffy individually showed each victim a photographic (photo) array, and each victim identified the same person as the white male who robbed them. Duffy later met with a fifth victim at a different location and showed him the photo array; that victim identified the same white male as did the other four victims. Duffy testified at trial that he showed each of those victims a photo array containing "eight pictures of white guys." After showing the photo array to the four victims at the home, Duffy mentioned that police were still seeking information on the third suspect. One of the four victims reiterated that he had identified the defendant at the show up the previous night. Based on this information, police obtained a warrant and arrested the defendant.

Before trial, the defendant moved to preclude the Commonwealth from introducing any in-court identification of the defendant by the victims. During the two-day hearing on the motion, the judge heard testimony from four of the victims and Duffy. Several times during the hearing, the judge offered the defendant the opportunity to have the Commonwealth put together a nonsuggestive photo array for the victims who were testifying or to have the defendant seated among the court room audience for identification. The defendant declined these offers. Following the hearing, the judge denied the defendant's motion. The judge found that "there [was no] out-of-court identification" of the defendant as one of the perpetrators. Concluding that "there has been nothing ... suggestive of [the defendant] being the culprit that has occurred since the incident and the trial," the judge ruled that the victims' opportunity to observe the defendant during the robbery provided an adequate basis for permitting them to identify the defendant in court.

Discussion. 1. In-court identifications. The defendant argues that the trial judge erred in denying his pretrial motion in limine to exclude his in-court identification, claiming that the identification's "probative value was outweighed by unfair prejudice because [it] was suggestive and unreliable." See Commonwealth v. Johnson, 473 Mass. 594, 599 (2016). See also Commonwealth v. Jones, 423 Mass. 99, 107, 109 (1996).

In Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014), the Supreme Judicial Court announced a prospective rule precluding in-court identifications where the witness had made no pretrial identification, except on a showing of "good reason," to be applied in trials commencing after December 17, 2014. Because the defendant's trial took place before that date, the prospective rule announced in Crayton does not apply. See Commonwealth v. Bastaldo, 472 Mass. 16, 31 (2015). "Instead, we evaluate the alleged errors under the existing law at the time of trial." Ibid.

Prior to Crayton, longstanding case law held that a judge should exclude an in-court identification only where "it is tainted by an out-of-court confrontation arranged by the Commonwealth that is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' " Commonwealth v. Carr, 464 Mass. 855, 877 (2013), abrogated by Crayton, quoting from Commonwealth v. Bol Choeurn, 446 Mass. 510, 520 (2006). See Simmons v. United States, 390 U.S. 377, 384 (1968). While "[w]e recognize that a degree of suggestiveness inheres in any identification of a suspect who is isolated in a court room ..., such isolation does not, in itself, render the identification impermissibly suggestive." Commonwealth v. Napolitano, 378 Mass. 599, 604 (1979), abrogated by Crayton. As such, "[a]n in-court identification was admissible in the absence of any prior out-of-court confrontation." Bastaldo, supra.

Here, the first time the victims made a formal identification of the defendant as one of the perpetrators was in court during their testimony. Aside from the inconclusive showup procedure, the victims' only out-of-court encounter with the defendant took place during the robbery. The trial judge found that the robbery occurred over a period of "between five and ten minutes," that the two groups were "about fifteen feet away from each other in an area ... that has good street lighting," and that for "much of that [time], ... the two groups were facing each other." She also found that "[the defendant] was in the front of his group and for much of that, at a minimum of five minutes, [the defendant's] face was facing the faces of the victims." The trial judge concluded: "[N]othing suggestive of [the defendant] as a perpetrator ... has occurred with these civilians. The question is then can they make an in-court identification. And I'm satisfied that because of the length of time of the incident, and the importance of the incident to them ... that their antennae are even more attentive." We agree with the trial judge that there was nothing suggestive about the events as they unfolded with the defendant that would create a substantial likelihood of irreparable misidentification in court.

2. Motion to recuse. The defendant also contends that the trial judge's actions and demeanor toward defense counsel deprived him of a fair trial, and that the trial judge should have recused herself from the proceedings. However, a review of the trial transcript shows that the antipathy between the trial judge and defense counsel was largely a result of counsel's repeated interruption of witnesses, the prosecutor, and the trial judge herself, as well as counsel's stridently voiced displeasure over a number of the trial judge's rulings.

"The matter of recusal is generally left to the discretion of the trial judge, and an abuse of that discretion must be shown to reverse a decision not to allow recusal." Haddad v. Gonzalez, 410 Mass. 855, 862 (1991) (citation omitted). "When faced with 'a question of [her] capacity to rule fairly, the judge [must] consult first [her] own emotions and conscience.' If [she] pass[es] the internal test of freedom from disabling prejudice, [she] must next attempt an objective appraisal of whether this [is] 'a proceeding in which [her] impartiality might reasonably be questioned.' " Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 143 (2008) (citations and quotation omitted).

Here, the trial judge told the parties that she had searched her conscience, and concluded: "I have had a chance to examine my conscience about whether I remain, and have remained, fair and impartial.... And I'm satisfied, having examined my conscience[,] that I have been fair and impartial ... [and] will remain fair and impartial." The trial judge added that she was "not the least bit bothered" by defense counsel stating that she had reported the trial judge to the "Judicial Conduct Commission and to the Mass. Association ... of Defense Counsel." The record before us does not hint of partial treatment in favor of the prosecution or of unfairness to the defense during the course of the trial. Nor was the trial judge the trier of fact. See Commonwealth v. Leventhal, 364 Mass. 718, 725-726 (1974). The trial judge's remark to the jury to "disregard counsel's unprofessional remark," while perhaps best left unsaid, was merely "a show of evanescent irritation-a modicum of quick temper that must be allowed even judges." Commonwealth v. Meadows, 33 Mass. App. Ct. 534, 536 (1992), quoting from Offutt v. United States, 348 U.S. 11, 17 (1954). There was no error. See Commonwealth v. Gogan, 389 Mass. 255, 259-260 (1983).

Judgments affirmed.

      While there was contradictory testimony as to whether Duffy showed any of the victims a photo array that included the defendant, the trial judge, in her findings of fact, credited Duffy's testimony that he only showed a photo array of white males and found that "no array of Hispanic males has ever been shown to any of the civilian witnesses."

      The judge also instructed the jurors that they "should not consider anything [she has] said or done during this trial as any indication that [she has] any opinion as to how [they] should decide this case," and to disregard any beliefs that she has an opinion on the case or what the verdict should be. That firm instruction was "likely to have gone a long way in neutralizing any impression that might have been conveyed that the judge thought ill of the defendant." Meadows, supra at 538-539.