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