NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
17-P-46 Appeals Court
COMMONWEALTH vs. PAUL J. STEWART.
No. 17-P-46.
Middlesex. March 2, 2018. - November 14, 2018.
Present: Maldonado, Blake, & Desmond, JJ.
Assault and Battery by Means of a Dangerous Weapon. Evidence,
Identification, Identification of victim, Self-serving
statement. Identification. Practice, Criminal,
Identification of defendant in courtroom, Jury and
jurors. Jury and Jurors.
Complaint received and sworn to in the Somerville Division
of the District Court Department on March 19, 2015.
The case was tried before Paul M. Yee, J.
Kerry A. Haberlin for the defendant.
Randall F. Maas, Assistant District Attorney, for the
Commonwealth.
MALDONADO, J. After a jury trial, the defendant was
convicted of assault and battery by means of a dangerous weapon.
The offense stemmed from events that occurred on March 18, 2015.
Although the defendant raises several issues on appeal, his
2
primary argument is that the judge erroneously permitted two
eyewitnesses to make an in-court identification. The defendant
claims, contrary to the judge's explicit ruling, that the
witnesses had not participated in a prior out-of-court
identification procedure and, therefore, the in-court
identifications were inadmissible under Commonwealth v. Crayton,
470 Mass. 228 (2014). Because we conclude, as did the judge,
that Crayton does not apply where, as here, the witnesses made a
prior identification of the defendant at the scene of the crime,
we affirm.
Background. On March 18, 2015, at approximately 4:30 P.M.,
M.R. was walking down Governors Avenue in Medford when she heard
two people, a man (later identified as the defendant) and a
woman (the victim), arguing. From a distance that M.R.
estimated to be about the size of the court room, she saw that
as the woman started to walk away, the defendant struck her from
behind with a cane, causing the woman to fall to the ground and
lose consciousness. The defendant then tried to drag the woman,
who was not moving, to the curb, where she began to "move a
little bit." M.R. telephoned 911 and watched as another
bystander (K.E.) approached the two individuals. M.R. never
lost sight of the defendant, and when the police arrived, she
pointed him out as the perpetrator of the assault.
3
The second witness, K.E., a nurse, was backing into a
parking space on Governors Avenue, when she too observed the
defendant strike the victim with a cane. She got out of her
car, and as she walked toward the defendant and the victim, she
dialed 911 from her cellular telephone. When the defendant
attempted to move the victim toward the curb, K.E. told him,
"Put her down." K.E. then observed the victim regain
consciousness and try to crawl away. She also noticed that the
victim's right temple was red. The victim stood up, and using
the cane, which had been left on the ground, she started to walk
away with the defendant. To keep the two individuals at the
scene until the police arrived, K.E. falsely announced, "You
lost some belongings in the snow bank."
Meanwhile, Medford police Sergeant Joseph Casey was driving
to work on Governors Avenue, when his attention was drawn to two
women looking concerned on the center island. He stopped his
vehicle and spoke to M.R. and K.E.; they directed his attention
to the couple who were walking up Governors Avenue. Casey
approached the defendant and the victim and spoke to them.
Shortly thereafter, Officer Robert Furtado arrived and took over
for Casey.
4
Furtado also spoke to the couple. The defendant identified
the woman with him as D.O.1 and denied "anything happening."
However, after hearing from M.R. and K.E., Furtado seized the
cane and placed the defendant under arrest.
At trial, Casey identified the defendant as the same
individual M.R. and K.E. had pointed out to him at the scene.
Furtado identified the defendant as the same man he arrested
after M.R. and K.E. pointed him out, and M.R. and K.E. each
separately identified the defendant as the same individual they
had observed striking the victim with a cane on Governors
Avenue.
Discussion. 1. Motions in limine. Prior to trial, the
Commonwealth and the defendant filed motions in limine
pertaining to M.R. and K.E.'s anticipated in-court
identifications. In its motion, the Commonwealth asserted that
identifications by the two civilians were admissible because
they were eyewitnesses to the crime who had pointed out the
defendant to the police at the scene while the defendant was
still in their presence. Citing Crayton, 470 Mass. at 238-246,
the defendant countered that the witnesses' identifications were
inadmissible because the witnesses "did not identify the
defendant as the perpetrator of the alleged crime at any time
1 The defendant provided the woman's full name to Furtado.
5
prior to the trial" and "did not positively identify the
defendant as the perpetrator prior to the trial," and "there is
not good cause to permit in-court identification at the trial."
The judge heard arguments on the motion and, rejecting the
defendant's claim that Crayton applied, ruled in favor of the
Commonwealth, stating: "There was an unequivocal, positive
identification of the defendant during a non-suggestive
identification. So there's good reason to admit their
identification in court." See Commonwealth v. Dew, 478 Mass.
304, 315 (2017). Contrast Commonwealth v. Collins, 470 Mass.
255, 262 (2014).
In Crayton, 470 Mass. at 241, the Supreme Judicial Court
announced a new rule, holding that "[w]here 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 evidence only where there is 'good reason'
for its admission." The defendant asserts that because neither
M.R. nor K.E. participated in an out-of-court pretrial
identification procedure, under the rule pronounced in Crayton,
they should have been prohibited from identifying the defendant
in court. We disagree.
The Crayton court pronounced the inadmissibility of in-
court identifications (with some exceptions) where "the
Commonwealth failed earlier to conduct a less suggestive out-of-
6
court identification procedure, and the in-court identification
is therefore the only identification of the defendant made by an
eyewitness" (emphasis original). Id. This is where the
defendant's argument fails.
Here, as the judge properly found, M.R. and K.E.'s in-court
identifications of the defendant were not their only
identification of him. M.R. and K.E. witnessed the crime. They
saw the defendant strike D.O., and without ever losing sight of
the defendant, they each pointed out the defendant to the
police. As the Crayton court explained, "Reliable evidence of
eyewitness identification will continue to be admissible where
it arises from a nonsuggestive out-of-court identification
procedure." Id. at 244. Accordingly, the defendant's reliance
on the Crayton rule for the exclusion of M.R. and K.E.'s in-
court identifications is misplaced.2
Moreover, even if we were to assume that M.R. and K.E.'s
in-court identifications were the only identifications they made
of the defendant, thus rendering their in-court identifications
akin to a suggestive showup identification, there was "good
reason" to permit them to identify the defendant. See id. at
241. The rule announced in Crayton provides that "there may be
We also see no merit in any assertion that the
2
identifications should have been excluded because their
probative value was outweighed by the danger of unfair
prejudice. Dew, 478 Mass. at 315.
7
'good reason' for the first identification procedure to be an
in-court showup." Id. at 242. The court stated, for example,
that "'[g]ood reason' might . . . exist where the witness is an
arresting officer who was also an eyewitness to the commission
of the crime, and the identification merely confirms that the
defendant is the person who was arrested for the charged crime."
Id. Although M.R. and K.E. are not police eyewitnesses, they
were eyewitnesses who never lost sight of the culprit and
remained on the scene until police arrived to make the arrest.
Under these circumstances, their in-court identifications were
similarly confirmatory.
Finally, even assuming arguendo that the two
identifications were erroneously admitted, we see no prejudice
to the defendant flowing from their admission. The defendant's
identification was proved mostly by circumstantial evidence.
Both police witnesses identified the defendant as the person the
eyewitnesses had pointed out to them, and Furtado further
identified the defendant as the person he had arrested. See,
e.g., Commonwealth v. Evans, 469 Mass. 834, 842 (2014) ("the
Commonwealth may submit a case wholly on circumstantial
evidence, and inferences drawn from that evidence need only be
reasonable and possible; [they] need not be necessary or
inescapable" [citations and quotation omitted]).
8
Furthermore, the defense did not make the defendant's
identification its focus. Rather, the defense centered on the
defendant's denial that "anything happen[ed]." The defendant
argued that the victim had fallen in the snow and that, because
neither witness was in a position to observe the incident in its
entirety,3 they both simply assumed that he had struck the victim
with the cane that was observed on the ground.
2. Remaining claims of error. a. Identity of the victim.
Contrary to the defendant's argument on appeal, the name of the
victim is not an essential element of the crime that must be
proved. See Commonwealth v. O'Connell, 432 Mass. 657, 660
(2000); G. L. c. 277, § 35. Here, it is reasonable to infer
from the record that the woman who was with the defendant when
the officers arrived on the scene was the same woman that M.R.
and K.E. had seen the defendant hit with the cane. Nothing more
was required.4
3 He argued that M.R. was some distance away and that by the
time loud talking attracted her attention, the victim was
already on the ground and, further, that K.E. was distracted
because she observed the incident while parking her car.
4 Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995), upon
which the defendant relies, is inapposite. That case, involving
a subsequent offense charge, addresses the question of the proof
required to establish the identity of the defendant and the
individual named in the prior conviction. Here, the victim's
legal identity was irrelevant.
9
b. Defendant's statement to police. At trial, the
defendant objected to the admission of his statement to Officer
Furtado denying that "anything happen[ed]." Assuming without
deciding that the judge erred by permitting the Commonwealth to
introduce the statement, see Commonwealth v. Smith, 473 Mass.
798, 813 n.22 (2016), the error was not prejudicial. See
Commonwealth v. Womack, 457 Mass. 268, 274-275 (2010). The
denial was exculpatory and consistent with the defense that the
witnesses could not have seen what they claimed to see. See
Commonwealth v. Emeny, 463 Mass. 138, 149 (2012). See also
Womack, supra at 276 (no prejudice where defendant's general
denial of accusation was erroneously admitted in evidence;
"[t]he core of any prejudice is more likely caused by admission
of the accusations than the denials").
c. Designation of sleeping juror as alternate. After the
judge observed a juror with his eyes closed, the judge
questioned whether the juror had been sleeping. During a voir
dire conducted at sidebar, the juror explained that he worked
nights. Defense counsel agreed with the judge's suggestion that
they make the juror an alternate, and at the conclusion of the
evidence and after further discussions, the judge designated the
10
juror as an alternate.5 The judge "had both discretion in
choosing the remedy best suited to address the situation and
ample grounds to justify [the] action" of designating the
apparently sleeping juror as an alternate. Commonwealth v. The
Ngoc Tran, 471 Mass. 179, 191 (2015).
Judgment affirmed.
5 The alternate juror was not called upon to participate in
the jury deliberations. See Commonwealth v. The Ngoc Tran, 471
Mass. 179, 190 n.11 (2015).