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
3
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
4
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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