Commonwealth v. Stewart
Commonwealth v. Stewart
Opinion
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 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
,
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.
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 *925 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.
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
,
In
Crayton
,
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-court identification procedure, and the in-court identification is therefore the
only
identification of the defendant made by an eyewitness" (emphasis original).
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."
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
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
,
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
,
b.
Defendant's statement to police
. At trial, the defendant objected to the admission of his statement to Officer Furtado
*927
denying that "anything happen[ed]." Assuming without deciding that the judge erred by permitting the Commonwealth to introduce the statement, see
Commonwealth
v.
Smith
,
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 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
,
Judgment affirmed .
The defendant provided the woman's full name to Furtado.
We also see no merit in any assertion that the identifications should have been excluded because their probative value was outweighed by the danger of unfair prejudice.
Dew
,
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.
Commonwealth
v.
Koney
,
The alternate juror was not called upon to participate in the jury deliberations. See
Commonwealth
v.
The Ngoc Tran
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.