Commonwealth v. Borgos

Citations: 464 Mass. 23; 979 N.E.2d 1095; 2012 Mass. LEXIS 1140

Court: Massachusetts Supreme Judicial Court; December 21, 2012; Massachusetts; State Supreme Court

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On November 24, 2009, Luis Alberto Montalvo Borgos was convicted of first-degree murder based on deliberate premeditation. On appeal, he challenged the denial of his motion to suppress out-of-court photographic identifications by four witnesses, the admission of testimony regarding two witnesses' fears for their lives, and the admission of testimony about his drug sales. He sought relief under G. L. c. 278, § 33E, but the court affirmed his conviction and found no grounds for relief.

The facts reveal that on May 11, 2007, the victim, his girlfriend Sheena Castle, and their daughter visited Castle’s mother, Sharon St. Pierre. Residents of the building included drug dealers Jose Mercado Matos (Jolky) and his twin brother Osvaldo (Valdo). After a series of events, including a loud argument triggered by the victim accidentally setting off his car alarm, Valdo shouted threats from his apartment window. Following a 911 call that St. Pierre later misled police about, the defendant was seen breaking into St. Pierre’s apartment, confronting the victim while brandishing a gun. Witnesses identified the defendant and heard multiple gunshots shortly thereafter. The victim died from gunshot wounds to vital organs. Witness Liz testified that the defendant expressed intent to kill the victim, whom he deemed disrespectful.

Rosario testified that he witnessed the defendant interact with Valdo before shots were fired from St. Pierre’s apartment building. After hearing multiple gunshots, Rosario saw the defendant leave the building with a gun, expressing confusion about his actions. Valdo, present with Rosario, later suggested that the victim was dead, prompting Rosario to tend to Vilmarie, who was awakened by the gunfire. Rosario did not hear police knocking and subsequently identified the defendant as the individual with the gun that night.

Prior to the shooting, the defendant was out with Yanelly, her sister Leisa, and Cordeiro at a nightclub, where he received a phone call threatening violence and brandished a silver gun. After returning to Yanelly and Cordeiro's apartment, the defendant left, and shortly thereafter, Yanelly and Leisa heard gunshots from above. Yanelly saw the defendant walking toward a dumpster before losing sight of him. 

Police recovered seven discharged .22 caliber cartridge casings and two live projectiles from the scene, with forensic analysis indicating they were fired from the same weapon. However, there was no direct forensic link between the defendant and the shooting, and the defendant did not testify or present witnesses. The defense argued misidentification, and the jury received detailed instructions on evaluating identifications. 

The defendant's motion to suppress out-of-court photographic identifications was denied after a two-day evidentiary hearing, as the judge found no impermissible risk of misidentification. Castle and St. Pierre had observed the defendant in the vicinity leading up to the shooting, although neither witnessed the actual shooting. Castle heard a disturbance just before the incident, including someone running down stairs, coinciding with the defendant's entry into her mother's apartment.

St. Pierre witnessed the defendant yelling at the victim while pointing a gun at her. After hearing gunshots, she fled to her nephew's home. Police arrived shortly after, and St. Pierre identified the shooter as possibly named Jose, providing a description of a Hispanic male in his twenties. St. Pierre and another witness, Castle, were shown photographs over the weekend, selecting one of Rosario as resembling the shooter. Rosario later approached the police, initially denying knowledge of the shooting, but eventually identified the defendant as Albert, recounting a conversation between the defendant and another individual, Valdo, prior to the shooting. Rosario described the defendant as a light-skinned Hispanic male with specific physical traits and tattoos. Despite identifying other individuals in a photo lineup, he did not recognize the defendant. Police learned of the defendant's connection to Jose and obtained a copy of the defendant’s driver’s license. On May 24, officers received a photograph of the defendant and created a photographic array with images of similar-looking males for identification purposes.

Detective Albin prepared a photographic array by cropping the defendant's photograph to match the size of others, with only numbers marking each image. Detective John McDonald presented this array to witnesses, instructing them to focus on facial features and noting that hair length and style can change. Rosario identified the defendant’s photograph, recognizing it as resembling "Albert," despite mentioning that Albert typically had shorter hair and wore a hat. McDonald obscured the hair in the photograph, leading Rosario to confidently affirm his identification.

Vilmarie, after receiving similar instructions, also identified the defendant's photograph, confirming her belief that it depicted Albert. St. Pierre, under McDonald's guidance, selected the defendant’s photograph based on his eyes, noting a difference in hair length. She emphasized that no pressure influenced her decision. Castle subsequently viewed the array and identified the defendant as the most similar to the man she saw with a gun, asserting her certainty in the identification without any coercion.

Following these identifications, a warrant for the defendant's arrest was obtained, and he was arrested on June 5, 2007. The motion judge concluded that, despite the preference for more than six photographs in an array, the use of six was permissible under Massachusetts law. The judge assessed the similarities and differences between the photographs, determining that none were significant enough to lead to misidentification.

Differences in physical characteristics within a photographic array do not alone establish suggestiveness. The judge found that officers did not use suggestive techniques when presenting the array to witnesses St. Pierre, Castle, Rosario, and Vilmarie, as they did not highlight any specific photograph and instructed witnesses to focus on facial features instead of hair, which can change. This method of obscuring the defendant’s hair was deemed appropriate. 

When reviewing a motion to suppress, the judge’s factual findings are accepted unless there is clear error, while the application of constitutional principles is evaluated independently. For a motion to suppress a photographic identification to prevail, the defendant must show that the identification procedures were unnecessarily suggestive and likely to cause misidentification, based on the totality of circumstances including the array size, presentation manner, and photograph composition.

On appeal, the defendant claimed that identifications should be suppressed due to the unreliability of St. Pierre and Castle, citing St. Pierre's prior identification errors and inconsistencies regarding her observations and statements to police. However, the judge determined that St. Pierre had ample opportunity to view the defendant before the shooting, despite her earlier misidentifications. The judge also did not find Rosario's timeline compelling. 

The defendant's challenge to Castle's reliability was similarly dismissed, as inconsistencies noted in her testimony did not undermine the credibility of her identification. Overall, the judge’s findings regarding the witnesses were supported by evidence, and the challenges to their reliability were rejected.

Castle had prior encounters with the defendant, including a thirty-second interaction shortly before the shooting, supporting the judge's conclusion that she had enough time to identify him. Her identification occurred days later, with no evidence suggesting she was physically or emotionally impaired at that time. The defendant did not contest the strength of Castle's identification, which she asserted was one hundred percent certain. The defendant claimed the identification procedure was unconstitutionally suggestive, arguing that witnesses were aware of the defendant's custody status and that his photograph would be in the array. However, the judge credited Detective McDonald’s testimony that he did not provide such information, thus deeming the identification procedure appropriate. The court also rejected the defendant's claim regarding the suggestiveness of the police covering his hair, noting that this action occurred only after the initial identification was made. The court found no due process violation and upheld the denial of the motion to suppress identifications from St. Pierre, Castle, Rosario, and Vilmarie. Although the officers did not adhere to the protocol established in a later case, they were not faulted for this as the identifications occurred in 2007. Finally, the court declined to mandate expert testimony on eyewitness identification, leaving that decision to the discretion of the judge.

The trial included testimony from Detective McDonald indicating that witnesses Rosario and Vilmarie were placed in a hotel due to fears for their safety, which the defendant contended led to a miscarriage of justice by implying he had threatened them. However, the court found no error in admitting this testimony, as it was prompted by the defendant's cross-examination suggesting that the hotel stay was a quid pro quo for their testimony. Redirect examination is permissible to clarify or counter assertions made during cross-examination. The defense also highlighted that Rosario and Vilmarie feared other individuals, not the defendant, which mitigated potential prejudice. The prosecutor's comments in closing argument were deemed appropriate as a counter to defense claims regarding the witnesses' hotel accommodation.

Additionally, the court rejected the defendant's claim that testimony from St. Pierre and Yanelly about his drug sales created a substantial likelihood of injustice. St. Pierre's mention of the defendant selling drugs was relevant to establishing her connection to him prior to the shooting and supported her identification of him. Yanelly’s testimony, presented during redirect examination, aimed to clarify defense insinuations regarding the identity of the shooter and was thus appropriate. The court concluded both instances of testimony were relevant and did not disproportionately prejudice the defendant.

Neither witness’s testimony regarding the defendant’s alleged drug dealing was likely to cause a significant miscarriage of justice, as the trial did not suggest a connection between the shooting and drug activities. The prosecutor did not argue that the defendant's drug history made him more likely to be the shooter. The credibility of the witnesses was questioned, particularly since many had drug-related backgrounds, which the defense used to propose that another individual was the shooter. This issue was thoroughly addressed during jury selection. Multiple witnesses, including Rosario, Vilmarie, Castle, and Leisa, identified the defendant during the police investigation, indicating that the jury's conclusion would remain unchanged even without the disputed references.

Furthermore, the defendant's request for relief under G.L. c. 278, § 33E was denied, affirming the judgment. Key witnesses’ identities and honesty were scrutinized, particularly Yanelly, who had used an alias due to pending warrants, and Liz, who initially provided false information to the police before later testifying truthfully after pleading guilty to witness intimidation. Valdo’s testimony was limited due to his intoxication, and he did not hear the shots.

The judge who ruled on the suppression of identifications was not the same as the trial judge, and the motion was allowed concerning a specific out-of-court identification. The appeal was based on trial testimony, but the review focused on facts from the suppression hearing. Vilmarie had seen the defendant frequently prior to the incident. The photographic array used for identification was deemed to contain individuals with similar features, and the court concluded that the defendant’s constitutional claims regarding identification were less favorable under federal standards. Notably, Massachusetts law provides a more defendant-friendly standard for the admissibility of identification evidence, negating the need to address the federal claims. The court referenced a protocol established in Commonwealth v. Silva-Santiago to mitigate risks of suggestiveness in future identifications.

A witness must be informed that they will view a set of photographs, which may or may not include the alleged perpetrator, emphasizing the importance of both identification and exoneration. Witnesses should be aware that their appearance may differ from the time of the incident due to changes in features, and that the investigation will continue regardless of identification outcomes. The witness must also express their confidence in any identification in their own words. A double-blind procedure is recommended, and accurate documentation of the identification process is crucial. The defendant did not object to the testimony's admission, which was anticipated from the trial's outset. While a limiting instruction from the judge regarding the use of this testimony would have been ideal, the judge took steps to mitigate prejudicial effects during voir dire by informing jurors about potential drug-related evidence and assessing its impact on their impartiality.