Commonwealth v. Steca Thelemaque.

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

                                                  23-P-4

                                  COMMONWEALTH

                                       vs.

                              STECA THELEMAQUE.

               MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

       In 2018, a jury convicted the defendant of one count of

 distribution of heroin, and at a jury-waived trial, the judge

 convicted him of a second count.          The defendant also waived his

 right to a jury trial with respect to the second and subsequent

 offense portions of both indictments, and the judge found him

 guilty as to both.       On appeal, the defendant claims that no

 "good reason" existed for the judge to allow three witnesses,

 who had not participated in a prior out-of-court identification

 procedure, to make in-court identifications of the defendant and

 that their identifications were not reliable.             We affirm.

       Discussion.      Because the defendant objected to all three

 in-court identifications, "we review to determine whether there

 was error and, if so, whether the error prejudiced the

 defendant."     Commonwealth v. Ortiz, 487 Mass. 602, 608 (2021).
"If there was error in the introduction of the identification

testimony, the defendant is entitled to a new trial unless we

are convinced that the identification here 'did not influence

the jury, or had but very slight effect.'"    Id., quoting

Commonwealth v. Chalue, 486 Mass. 847, 858 (2021).

       An in-court identification by an eyewitness who was present

during the commission of the crime may be admitted in evidence

where there is "good reason" for its admission.      Commonwealth v.

Crayton, 470 Mass. 228, 241 (2014).    In Crayton, the Supreme

Judicial Court explained that "good reason" might exist "where

the eyewitness was familiar with the defendant before the

commission of the crime" or "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. at

242.    "[I]n both of these circumstances, where the witness is

not identifying the defendant based solely on his or her memory

of witnessing the defendant at the time of the crime, there is

little risk of misidentification arising from the in-court

showup despite its suggestiveness."    Id. at 243.

       Here, there was "good reason" for the judge to allow all

three witnesses to make in-court identifications.     The testimony

elicited from the witnesses during voir dire established that

they were all "familiar with the defendant before the commission


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of the crime[s]."   Crayton, 470 Mass. at 242.   Thus, the

witnesses were "not identifying the defendant based solely on

his or her memory of witnessing the defendant at the time of the

crime[s], [and] there is little risk of misidentification

arising from the in-court showup despite its suggestiveness."

Id. at 243.

     Detective Capasso was conducting surveillance while

standing in a bush approximately ten to fifteen feet away from

the defendant at the time one of the offenses occurred.      He

testified that he had known of the defendant for several years

and that he was familiar with the defendant in both his personal

and professional capacity.   Detective Capasso had several mutual

friends with the defendant's family, and the defendant was "well

known" in Somerville, where Detective Capasso grew up.    In his

professional capacity, Detective Capasso knew the defendant

through previous arrests, mainly during his time as a patrol

officer in the narcotics unit.   Detective Capasso testified that

he had seen the defendant in person several times through

surveillance, although he could not recall the exact dates and

times.   However, he was able to recall that he had seen the

defendant three times in a specific apartment unit in Somerville

before the commission of the crime.   Detective Capasso also

testified that he remembered seeing the defendant in the project

development area where the apartment is located on a few


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occasions, as "that was the place that [the defendant] would

frequent and that was a former area that [Detective Capasso]

would patrol when [he] first started the job."

     Similarly, Detective Cicerone testified that although he

could not remember the exact dates and times he had interacted

with the defendant, he was familiar with the defendant before

the commission of the crimes, which he observed from

approximately over one hundred feet away.   Specifically,

Detective Cicerone recalled a prior arrest and that he

personally had conversations with the defendant once or twice.

Although the testimony is not clear as to how many of these

sightings occurred before the commission of the crime, Detective

Cicerone testified that he had "probably seen [the defendant] a

dozen or so times."

     The third witness, a civilian who purchased drugs from the

defendant, testified that she was familiar with him through

"[f]riends of friends."   She had known him for five or so years,

and they had "hung out" in person a few times.   After she had

gotten to know the defendant through a mutual friend, she would

buy drugs from him in person, and had been doing so for a few

months.

     Contrary to the defendant's assertion, this case is unlike

Ortiz, 487 Mass. at 610, where "[t]here was no evidence, for

example, that [the officer] had any knowledge of the defendant


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before the commission of the offense, nor evidence that [the

officer] had any continued interactions with the defendant

throughout the booking process."       Here, as detailed above, there

was sufficient evidence elicited at the voir dire hearing for

the judge to conclude that each of the witnesses had enough

prior knowledge of the defendant to make an in-court

identification.   Therefore, there was no error in the admission

of the in-court identifications.

     Even if there was error in the admission of all three in-

court identifications, such error was not prejudicial.      There

was other, compelling evidence introduced at trial that

established the defendant's guilt, including evidence of the

drugs found in the possession of the two drug purchasers, which

the defendant stipulated was heroin; evidence surrounding the

defendant's attempt to flee to Atlanta after the crimes were

committed; and the photograph of a drug purchaser's cell phone

showing a telephone call to the defendant.      Therefore, the in-




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court identifications likely had little, if any, impact on the

jury. 1

                                      Judgments affirmed.

                                      By the Court (Meade,
                                        Massing & Sacks, JJ. 2),



                                      Assistant Clerk


Entered:    January 23, 2024.




1 The defendant also claims that the prosecutor improperly argued
in closing that the second heroin purchaser did not identify the
defendant because Detective Capasso had already done so. We
disagree. After defense counsel highlighted that this purchaser
did not identify the defendant from the stand, the prosecutor
was free to respond to that argument. See Commonwealth v.
Monzon, 51 Mass. App. Ct. 245, 253–254 (2001). In particular,
the prosecutor properly argued that the lack of an in-court
identification by the woman did not provide reasonable doubt in
this case because she acknowledged that she called a telephone
number labeled "Steca" to arrange to purchase drugs and because
Detective Capasso provided identification of the defendant as
the person who had met with the woman. To whatever extent the
prosecutor gave an inaccurate explanation for not asking the
woman to identify the defendant, there was no substantial risk
of a miscarriage of justice.

2   The panelists are listed in order of seniority.


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