Commonwealth v. Natalie R. Wallace.

• Court: Massachusetts Appeals Court
• Decided: September 14, 2023
• Docket: 22-P-0793
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-793

COMMONWEALTH

vs.

NATALIE R. WALLACE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of assault

and battery.1 By this appeal, the defendant claims that a

substantial risk of a miscarriage of justice arose in two ways:

first, when two police officers made in-court identifications of

the defendant that she claims were inherently suggestive, and

second, when an officer used the word "assault" while

testifying, which the defendant claims went to an ultimate issue

before the jury. We affirm.

Background. We summarize the trial evidence, reserving

certain facts for later discussion.

1 The complaint originally alleged assault and battery on a pregnant victim but was amended before trial. On November 23, 2020, Somerville Police Officers James

Torres and Joseph Moreira responded to a domestic violence call.

Officer Torres, arriving first on the scene, saw the defendant

fighting someone. Once Officer Moreira arrived, the two

officers attempted to separate and speak with the defendant and

the other combatant, the victim. The defendant provided her

name to Officer Moreira during their initial interactions.

The officers' attempt to defuse the situation proved

unsuccessful, as the defendant and the victim continued to yell

and aggressively lunge toward each other even after being

separated. The victim walked toward the defendant, prompting

Officer Moreira to move toward the victim in an attempt to

physically prevent her from reaching the defendant. At this

point, Officer Moreira felt the defendant against his back, and

he found himself caught in between the two women, who had

resumed fighting. Both women threw a flurry of punches at each

other, and during the melee, Officer Moreira was punched in the

head.

After separating the defendant and the victim for a second

time, Officer Torres placed the defendant in handcuffs and

escorted her back to her nearby residence. Officer Torres then

stayed with the defendant in an attempt to deescalate the

situation. During this time the defendant identified herself.

Officer Torres remained with the defendant until he was

2 satisfied that the defendant was calm; the victim had left the

scene by that point. The officers filed criminal complaints

against the parties rather than arrest them. The complaint

against the defendant identified her by the name she gave

Officer Torres and showed an address matching the residence the

defendant was escorted back to. The defendant was charged with

disorderly conduct and assault and battery on the victim and

Officer Moreira, but before trial, the disorderly conduct charge

was dismissed.

In her opening statement, defense counsel acknowledged that

the defendant was present and arguing with the victim on March

23, 2020. During her testimony, the defendant admitted that she

"was swinging" intentionally and "hit" the victim, but she

claimed she did so in self-defense. She denied attempting to

hit or hitting an officer. The jury found the defendant guilty

of assault and battery on the victim and not guilty of assault

and battery on a police officer. The defendant filed a timely

notice of appeal.

Discussion. 1. Identification testimony. The

Commonwealth filed a motion in limine to introduce in-court

identifications of the defendant by Officers Torres and Moreira.

The motion was allowed without objection. During the trial,

both officers identified the defendant as the individual who was

charged for being involved in the physical altercation with the

3 victim.2 The judge admitted these in-court identifications with

no objection from defense counsel.

On appeal, the defendant argues that there was no "good

reason" under Commonwealth v. Crayton, 470 Mass. 228, 241

(2014), for admitting the in-court identification testimony by

Officers Torres and Moreira, as there was no evidence of an out-

of-court identification procedure or prior relationship between

the officers and the defendant, and the officers did not

identify the defendant at trial as someone they had arrested.

Since the defendant did not object to either officer's in-court

identification, we review to determine whether the admission of

this evidence, if error, created a substantial risk of a

miscarriage of justice. See Commonwealth v. Traylor, 472 Mass.

260, 267 (2015).

"Where an eyewitness has not participated before trial in

an identification procedure, we shall treat the in-court

identification as an in-court showup, and shall admit it in

2 During direct examination, the prosecutor asked Officer Torres, "[D]o you recognize -- or do you see the woman that you handcuffed in . . . the courtroom today?" to which Officer Torres responded in the affirmative and identified the defendant. The prosecutor asked Officer Moreira whether and how he was able to identify the defendant on the day of the incident, to which Officer Moreira responded that he was able to identify the defendant because she told him her name. The prosecutor then asked, "[d]o you see Natalie Wallace in the courtroom today?" to which Officer Moreira responded in the affirmative and identified the defendant. 4 evidence only where there is 'good reason' for its admission."

Crayton, 470 Mass. at 241. There may be good reason to admit

in-court identification testimony where the testimony is

"understood by the jury as confirmation that the defendant

sitting in the court room is the person whose conduct is at

issue rather than as identification evidence." Id. at 242. For

there to be "good reason," there must be little risk of

misidentification arising from the in-court identification

despite its suggestiveness. Id. at 243.

Crayton, 470 Mass. at 242, provides two examples of what

would constitute "good reason" for allowing an inherently

suggestive in-court identification: (1) where the eyewitness

was familiar with the defendant before the commission of the

crime, such as where a victim testifies to a crime of domestic

violence; and (2) where the witness was an arresting officer who

was also an eyewitness to the commission of the crime, and the

identification merely confirms that the defendant is the person

who was arrested for the charged crime. However, even if the

witness did not have a relationship with the defendant prior to

the commission of the crime and was not an arresting officer,

good reason may still exist if the individual had an "extensive

and intensive opportunity to observe the defendant."

Commonwealth v. Fielding, 94 Mass. App. Ct. 718, 723 (2019).

See id. (defendant and victim interacted for thirty minutes);

5 Commonwealth v. Stewart, 94 Mass. App. Ct. 485, 488 (2018) (lay

witnesses never lost sight of defendant and remained on scene

until police arrived to make arrest).

Where there has been no out-of-court identification by a

witness, the burden is on the Commonwealth to move in limine to

admit the witness's in-court identification of the defendant.

See Crayton, 470 Mass. at 243. Once the Commonwealth's motion

is filed, the defendant bears the burden of showing that there

is no "good reason" for the in-court identification. Id.

Here, the officers' prolonged and personal contact with the

defendant, who identified herself to both officers, provided a

good reason to allow reliable in-court identification testimony

confirming that the defendant was the individual whose conduct

was at issue at trial. See Crayton, 470 Mass. at 242-243. Even

though Officers Torres and Moreira did not arrest the defendant,

they had continuous and close interactions with her. During

those interactions, the officers had extensive opportunity to

observe her from the time they arrived at the scene until the

time the confrontation was resolved, at which point Officer

Torres escorted the defendant home to the address appearing on

the criminal complaint and advised her of future court process

before releasing her. See Fielding, 94 Mass. App. Ct. at 723-

724; Stewart, 94 Mass. App. Ct. at 488-489. Contrast

Commonwealth v. Ortiz, 487 Mass. 602, 609-610 (2021) (in-court

6 identification of defendant by undercover officer who

participated in controlled narcotics purchase improper where

officer only spent two to three minutes together with defendant

in car and did not otherwise interact with defendant throughout

booking process); Crayton, supra at 245 (witnesses' partial view

of defendant on one occasion not reliable, and no good reason to

admit in-court identification testimony where Commonwealth had

opportunity to obtain less suggestive out-of-court

identification). Both Officer Torres and Officer Moreira

identified the defendant in the context of her being the

individual charged with the offenses on trial, and not

specifically as the individual they saw throwing punches.

Accordingly, the nature of the officers' interaction with the

defendant leads us to conclude their respective in-court

identifications were confirmatory, and furthermore, were made

with very little risk of misidentification. See Crayton, supra

at 242-243.

The defendant's reliance on Ortiz, 482 Mass. 602, is

misplaced. Although Ortiz makes a distinction between arresting

and nonarresting officers, the undercover officer's in-court

identification testimony was inadmissible in Ortiz, supra at

609-610, because his limited interactions with the defendant

made it implausible for him to give reliable in-court testimony

confirming the defendant as the individual whose conduct was at

7 issue. Since the officer's interaction consisted of only two to

three minutes in a car alone with the defendant, during which

time he did not ask for the defendant's identification, the

officer's identification testimony could not be viewed as

reliable evidence pointing to the defendant on trial as the

individual from whom he bought heroin. Id. Here, in contrast,

the officers' interaction with the defendant was more extensive,

the defendant identified herself to the officers, and there was

no risk of misidentification because identity was not in

dispute. The defendant acknowledged being present on March 23,

2020, and being charged for assaulting the victim and Officer

Moreira.

Thus, we conclude that the trial judge did not err in

admitting the in-court identification testimony.

2. Ultimate issue testimony. The defendant argues that

Officer Torres's use of the words "assault" and "assaultive"

when describing the defendant's conduct amounted to improper

opinion testimony on the ultimate issue of the defendant's

guilt.3 Because there was no objection, we review for whether

3 When asked to elaborate on his testimony that he saw the defendant "striking the other involved party," Officer Torres testified that it "appeared as though [the defendant] was just throwing a flurry of punches and it was landing in front of her and whoever was in front of her was basically being assaulted." He later testified that he removed handcuffs from the defendant once she "was no longer being aggressive and continuing her aggressive assaultive behavior." 8 Torres's testimony, if admitted in error, created a substantial

risk of a miscarriage of justice. See Commonwealth v. Saulnier,

84 Mass. App. Ct. 603, 607 (2013).

When a defendant is on trial for assault and battery, it is

advisable for the witnesses not to repeatedly refer to the

incident at issue using the conclusory term "assault." See

Commonwealth v. Duarte, 97 Mass. App. Ct. 268, 276 (2020);

Commonwealth v. Dargon, 457 Mass. 387, 396 (2010). It is

preferable that the incident be described to the jury without

using a term that constitutes an element of the crime because

using other words would eliminate the risk that the jury could

have interpreted the testimony as an opinion on the issue of the

defendant's guilt. See Duarte, supra.

While it is regrettable that Officer Torres used the words

"assault" and "assaultive" while describing the altercation

between the defendant and the victim, the error did not create a

substantial risk of a miscarriage of justice when considering

(1) that the contested issue at trial "was not whether the

defendant" struck the victim but whether "the Commonwealth had

proved beyond a reasonable doubt that the defendant was not

acting with justification, i.e., acting in self-defense," (2)

the limited nature of the usage, and (3) the strength of the

Commonwealth's case. Duarte, 97 Mass. App. Ct. at 276. See

Saulnier, 84 Mass. App. Ct. at 607. We fail to see how Officer

9 Torres's characterization of the defendant's conduct might have

materially influenced the jury in reaching a verdict when

considering the defendant testified that she intentionally swung

at and hit the victim. See Duarte, supra. The two police

officers also testified that they saw the defendant punching or

striking the victim. Thus, Torres's limited testimonial lapse

was inconsequential to the jury's verdict. Id.; Saulnier,

supra.

Furthermore, any prejudicial impact this error may have had

on the jury was diminished considering Officer Torres's

testimony was explanatory in nature, as he used the word

"assault" to describe the events that unfolded before him rather

than offering the word as a conclusory opinion on the ultimate

issue of the defendant's guilt. See Commonwealth v. Grissett,

66 Mass. App. Ct. 454, 458 (2006); Commonwealth v. Tanner, 45

Mass. App. Ct. 576, 581 (1998). Contrast Commonwealth v. Lodge,

431 Mass. 461, 467 (2000) ("general expression of the officer's

opinion of guilt, followed by a recital of all the evidence

against the defendant, is not permitted").

Finally, the error here was cured by the judge instructing

the jury, inter alia, as to the elements of the offenses and the

law of self-defense, and that it was within the sole province of

the jury to find the facts and reach a unanimous verdict. We

10 presume the jury followed the judge's instructions. See

Commonwealth v. Dufresne, 489 Mass. 195, 208 (2022).

Judgment affirmed.

By the Court (Blake, Grant & Smyth, JJ.4),

Clerk

Entered: September 14, 2023.

4 The panelists are listed in order of seniority. 11