Commonwealth v. Jose Rodriguez.

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-778

COMMONWEALTH

vs.

JOSE RODRIGUEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury found the defendant guilty of armed

assault with intent to murder, assault by means of a dangerous

weapon (ADW), unlawful possession of a firearm, unlawful

possession of ammunition, and malicious destruction of property.1

The underlying convictions were based on evidence that the

defendant fired multiple shots into a residence in Springfield.

We conclude that the evidence was sufficient to sustain the

defendant's convictions, and that there was no error in the

admission of evidence regarding a witness's pretrial

identifications of the defendant. However, we also conclude

1Based on the defendant's criminal record -– which was
established in a separate jury-waived trial -– the judge applied
various enhancements at sentencing.
that it was error for the trial judge to allow a witness to

identify the defendant in court, and that this requires vacating

of the defendant's convictions.2

1. Sufficiency. The defendant challenges the sufficiency

of the Commonwealth's proof in two respects, which we consider

in turn. In assessing the sufficiency of the evidence, we are

to view the Commonwealth's evidence -- including all reasonable

inferences therefrom -- in the light most favorable to the

Commonwealth. See Commonwealth v. Latimore 378 Mass. 671, 677

(1978). The ultimate question is whether the evidence viewed in

that light was sufficient to persuade any rational fact finder

that the essential elements of the offenses charged had been

established beyond a reasonable doubt. Id. at 677-678. "Our

consideration 'is to be measured upon that which was admitted in

evidence without regard to the propriety of the admission.'"

2 The defendant makes two additional arguments. One is that
the trial judge did not adequately address whether the jury were
influenced by extraneous matters (their alleged fear of the
defendant and his family). The other is that the convictions of
illegal possession of a firearm and ammunition must be vacated
because the jury were not instructed that the lack of a license
were elements of the offenses (an error that the Commonwealth
concedes while claiming that there was no prejudice). See
Commonwealth v. Guardado, 491 Mass. 666, 690 (2023) (Guardado
I), S.C., 493 Mass. 1 (2023) (Guardado II). We need not reach
these issues. We acknowledge as to the possessory offenses that
although the evidence may have been "insufficient . . . when
viewed through the lens of a legal development that occurred
after trial," double jeopardy principles do not bar a retrial.
See Guardado II, supra at 7.

2
Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting

Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).

a. Background. We begin by summarizing the trial

evidence. Feleisha Thompson lived in a house in Springfield,

which she shared with her twin sister. The sister's boyfriend,

Jose Fargas, who also went by the nickname Cuavo,3 sometimes

stayed there as well. On the night of April 11, 2017, Fargas

hosted a party at the house, in the nature of a "cookout." The

party, which lasted approximately from noon to midnight, was

attended by Fargas, his girlfriend, Thompson, Thompson's six

year old son Matthew (a pseudonym), and approximately four of

Fargas's friends. According to Thompson, the defendant was not

one of the four guests, but he came to the party late that

evening to pick someone up. He was wearing light blue jeans, a

red plaid flannel shirt over a white T-shirt, and a hat.

Over the course of the party, Fargas drank to excess. At

one point, close to midnight, he became bellicose, based

apparently on his belief that a male attendee at the party (not

the defendant and perhaps someone named Lance) was flirting with

his girlfriend. A loud verbal altercation ensued. Fargas's

3 The trial transcripts spell the name phonetically with a
"Q," but the witness at the motion to suppress hearing testified
that the name is spelled with a "C." Nothing turns on the
spelling.

3
girlfriend urged him to go to bed, which he did.4 The partygoers

recognized it was time to leave and dispersed. Meanwhile,

Matthew (Thompson's son), was sleeping in an upstairs bedroom.

Shortly thereafter, a man approached Thompson's house and

walked directly by her as she was outside in the driveway moving

her car. The man, whom Thompson later identified as the

defendant, was wearing light jeans, a white T-shirt (without any

outer shirt) and no hat. After demanding to know "where's

Cuavo?" the man proceeded to the back of the house and, still

outside, started firing into multiple rooms as he continued to

walk around it. The bullets did various damage to the house,

and one lodged in the living room ceiling, which was under the

second-floor bedroom in which Matthew was sleeping. At this

point, Fargas was resting in a different bedroom, but the shots

caused him to wake up. Alerted both by 911 calls and by a "shot

spotter" alert system, the police responded, but the shooter had

fled.

Although Thompson recognized the shooter as someone she had

seen at the party, she had not seen him before that night and

4 At trial, the defendant sought to make much of the fact
that before going to bed, Fargas initially left, and then came
back after two minutes to argue some more. The suggested
implication seems to be that he might have gone to arm himself.
It is not entirely clear how this would have assisted the
defendant's defense, but in any event for purposes of our
sufficiency analysis, it has no import.

4
did not know his name. She found a photograph of him on

Facebook on an account associated with someone who went by the

name "Joey Crack." Thompson provided that information to the

police. The police in turn put together an array of eight

photographs of similarly-looking individuals, which were shown

to Thompson serially. Included within the array was a

photograph of the defendant that Thompson identified as being

that of the shooter. When asked at that time how sure she was,

she stated ninety percent. Over the defendant's objections,

Thompson also identified the defendant as the shooter at trial.5

The defendant's former girlfriend provided corroborating

testimonial evidence that the defendant was the shooter.

According to her, the defendant admitted to her that after

attending a friend's house in Springfield, "something happened

between him and . . . the person that stayed there," and "he did

shoot up the house." She specifically testified that the

defendant told her that he had shot into the house from multiple

angles.6

5 Further details regarding the pretrial and trial
identifications, and the defendant's efforts to exclude them,
are reserved for further discussion below.

6 Defense counsel sought to impeach the former girlfriend's
testimony as biased, for example, by pointing out that she was
in a child support and custody battle with the defendant.
Because the jury were not required to view her as biased, the
defendant's impeachment efforts have no bearing on our review of
the sufficiency of the evidence.

5
b. Discussion. i. Assault. The armed assault with

intent to murder and ADW convictions both depend on proof that

the defendant committed an assault. An assault in turn can be

committed in either of two ways: a threatened battery and an

attempted battery. See Commonwealth v. Andrade, 488 Mass. 522,

543 (2021). The jury here were instructed as to both theories,

and they returned a general verdict on the two assault-related

offenses without specifying which theory they accepted. The

defendant argues, and the Commonwealth appropriately concedes,

that there was insufficient evidence that he committed a

threatened battery.7 Based on this, the defendant further argues

that because the jury rendered a general verdict (and we hence

do not know which of the two theories the jury accepted), the

assault-related convictions must be vacated regardless of

whether there was sufficient evidence that he committed an

attempted battery. See Commonwealth v. Chambers, 57 Mass. App.

Ct. 47, 51-52 (2003). This argument fails, however, because the

Supreme Judicial Court abrogated the holding of Chambers in

Andrade, supra at 544 ("Because the jury need not have

indicated, and did not indicate, which theory they found,

contrary to the defendant's assertion, we need go no further in

7 The indictments alleged that the assaults were committed
against Matthew. There was no evidence that Matthew ever awoke
during the shooting.

6
determining that the evidence was sufficient to establish an

immediately threatened battery").

We turn then to whether there was sufficient evidence that

the defendant committed an attempted battery. The indictments

alleged that the person the defendant assaulted was Matthew.

Although there was no evidence that the defendant intended to

commit a battery on Matthew, there was evidence that he intended

to commit a battery on Fargas, and his intent to do so can be

transferred to Matthew. See Commonwealth v. Melton, 436 Mass.

291, 296-299 (2002). The remaining issue is whether there was

sufficient evidence that he came "reasonably close" to striking

Matthew with a bullet. See Andrade, 488 Mass. at 543. We agree

with the Commonwealth that it satisfied that requirement by

evidence that the defendant fired a shot in the direction of

where Matthew was sleeping, notwithstanding the absence of

direct proof of exactly how close the shot came to hitting

Matthew. Id. The fact that the bullet never made its way into

Matthew's bedroom is of no moment. See Commonwealth v. Walker,

460 Mass. 590, 615-616 (2011) (bullet came "reasonably close" to

hitting intended target even though it struck barrier).

ii. Intent to murder. Relatedly, the defendant argues

that there was insufficient evidence that he held a specific

intent to murder Fargas. We again are unpersuaded.

7
Citing to Commonwealth v. Horne, 466 Mass. 440, 445 (2013),

the thrust of the defendant's argument is that the defendant's

actions in "shooting up" the house amount to a textbook example

of wanton and reckless conduct, not an assault committed with a

specific intent to murder. Horne, supra at 441, was an appeal

about whether the defendant there was entitled to a jury

instruction on involuntary manslaughter. In that context, the

court, of course, was required to view the evidence in the light

most favorable to the defendant. By contrast, in considering

this defendant's claim of insufficiency, we are required to view

the evidence in the light most favorable to the Commonwealth.

There was evidence that the defendant specifically asked for

Fargas ("where's Cuavo?") before firing multiple shots into the

home including toward the upstairs where he reasonably could

have concluded Fargas was then located. This was sufficient to

support a jury finding that the defendant acted with a specific

intent to murder Fargas. See Andrade, 488 Mass. at 544;

Commonwealth v. Tavares, 471 Mass. 430, 435 (2015).

2. Identification evidence. Prior to trial, the defendant

filed a motion to suppress Thompson's pretrial identification of

him from the photographs, both the Facebook photo that she found

on her own and the photo she selected from the photo array

assembled by the police. The motion judge denied that motion

following an evidentiary hearing. The Commonwealth later filed

8
a motion in limine seeking approval to ask Thompson to identify

the defendant at trial based on her having selected his photo

from the photo array, and the defendant filed his own motion in

limine seeking to preclude an in-court identification. The

trial judge summarily ruled in the Commonwealth's favor at the

beginning of the trial, explaining that the motion judge

"addressed this issue square on and has adjudicated it." That

recollection was in fact inaccurate, because the motion judge

never addressed whether Thompson should be allowed to make an

in-court identification.8 With the Commonwealth having prevailed

on its motion in limine, the prosecutor twice asked Thompson

during her testimony whether she could identify the defendant as

the shooter. Over the defendant's renewed objections, twice she

did so.

On appeal, the defendant challenges both the motion judge's

denial of his motion to suppress the pretrial identifications,

and the trial judge's allowance of the in-court identifications.

We address these in turn.

8 On its face, the motion to suppress requested suppression
of both "all in-court and out-of-court identifications of the
Defendant by the Commonwealth's witness Feleisha Thompson."
However, the defendant made no argument to preclude any in-court
identifications in his memorandum of law in support of that
motion or at the hearing on the motion; rather, the focus
entirely was on whether to suppress the pretrial
identifications.

9
a. Pretrial identifications. Thompson was the only

witness at the evidentiary hearing. The motion judge found her

"direct, forthright and credible" and without any "apparent

motivation for identifying the defendant as the shooter, other

than to provide accurate information." Accordingly, the judge's

detailed findings were based "primarily on her testimony." Her

testimony at the evidentiary hearing was largely consistent with

her later trial testimony (summarized above), although there

were some discrepancies that the defendant sought to exploit for

impeachment purposes at trial.9

At the evidentiary hearing, Thompson provided some

explanation as to how she came across a photograph of the

defendant on Facebook. Specifically, she testified that in the

aftermath of the shooting incident, Fargas had a phone

conversation with an unidentified third party trying to figure

out who the shooter was. From overhearing that conversation,

Thompson learned that the shooter was someone who went by the

name "Joey Crack." Thompson then went on Facebook and searched

for that name to see if she could find him. In fact, she found

six or seven separate Facebook accounts associated with the name

9 For example, there were differences with respect to the
start time and length of party, the number of alcoholic drinks
she had consumed, whether she specifically had seen the man who
walked up the driveway carrying a gun, and whether she got a
frontal view of him or merely one from the side.

10
Joey Crack. On one of those Facebook pages, she saw a

photograph that she recognized as the shooter. Thompson passed

that information along to the police, who up to that point had

had no involvement in Thompson's own investigation.

The fact that Thompson conducted her own investigation

without police involvement does not mean that the defendant is

precluded from challenging the identifications based on common

law principles of fairness. See Commonwealth v. Jones, 423

Mass. 99, 109 (1996). It does, however, heighten the burden

that the defendant must overcome for suppressing the fruits of

Thompson's investigation. Specifically, the question is whether

the out-of-court identifications should be deemed unreliable

because they were the product of a "'highly' or 'especially'

suggestive confrontation with the defendant." Commonwealth v.

Johnson, 473 Mass. 594, 598-599 (2016), quoting Jones, supra.

The motion judge did not abuse his discretion in concluding that

the defendant had not met this high standard. While there was

some suggestiveness inherent in Thompson's searching through

Facebook (given that, by that point, she had come to believe

that the shooter went by the name Joey Crack), her following up

on that lead did not taint the process in a manner that rendered

her identification of the photograph so unreliable that the

judge was required to exclude it. In fact, any suggestiveness

here was significantly less than that in Commonwealth v. Jules,

11
464 Mass. 478, 488-491 & 488 n.15 (2013), a case in which the

court ruled that the defendant lacked a viable claim for

suppression. In Jules, supra, an eyewitness had identified the

defendant from a newspaper photograph that showed him in

handcuffs, with a caption that identified him as the person

charged with brutal murder.10

We further conclude that the motion judge did not abuse his

discretion in denying the defendant's motion to suppress with

respect to the photo array process that the police administered.

The applicable question is not whether the photo array was

somewhat suggestive (in so far as Thompson already had

identified the Facebook photograph of the defendant as the

shooter), but whether it was "unnecessarily suggestive."

Johnson, 473 Mass. at 597, quoting Commonwealth v. Crayton, 470

Mass. 228, 235 (2014). It was not unnecessarily suggestive,

because the police had "good reason" to include a photograph of

the defendant in the array. Johnson, supra ("inquiry focuses on

whether police had 'good reason' to engage in a suggestive

identification procedure"). Moreover, the fact that the police

used a different photograph of the defendant in the array

minimized any suggestiveness. Finally, we note that the

10The fact that Thompson found six or seven Facebook
accounts associated with the name Joey Crack further reduced any
suggestiveness.

12
particular manner in which the array was assembled and shown to

Thompson was in most respects exemplary.11 There was no error in

the denial of the motion to suppress.

b. In-court identifications. That leaves the question

whether Thompson should have been allowed to make

identifications of the defendant in court. "If an eyewitness

'made something less than an unequivocal positive identification

of the defendant' during an out-of-court identification

procedure, that witness may not make an in-court identification

without 'good reason.'" Commonwealth v. Yang, 98 Mass. App. Ct.

446, 448 (2020), quoting Commonwealth v. Collins, 470 Mass. 255,

265 (2014). "An unequivocal positive identification occurs if

the witness 'identifies the defendant as the perpetrator, such

that the statement of identification is clear and free from

doubt.'" Yang, supra, quoting Commonwealth v. Dew, 478 Mass.

304, 315 (2017).

The Commonwealth's motion in limine relied entirely on

Thompson's identification of the defendant in the photo array

process. Although that motion cited the leading applicable case

law, including Crayton and Collins, it did not provide any

11One respect in which the photo array was less than
exemplary is that the defendant's photo appeared with a light
blue background, while the background for all of the other
photographs was dark blue. Although this arguably made the
defendant's photo stand out from the others somewhat, we
conclude that this did not make the array unduly suggestive.

13
detailed analysis as to how the tests enunciated by those cases

were satisfied. Instead, the Commonwealth took the position

that the issue was resolved by the motion judge's denial of the

motion to suppress. As noted, that was inaccurate, and the

Commonwealth laudably has since abandoned such a claim.

The Commonwealth nevertheless argues that the allowance of

its motion in limine can be justified on other grounds. To the

extent that it argues that Thompson's identification of the

defendant in the photo array was "unequivocal," we disagree.

While ninety percent is higher than the eighty percent present

in Yang, 98 Mass. App. Ct. at 447-448, it still cannot

reasonably be said to be "clear and free from doubt," id.,

quoting Dew, 478 Mass. at 315. The fact that Thompson offered

potentially sound reasons why she was not sure of her

identification was for the jury to weigh in considering the

strength of her pretrial identifications, not a basis for

allowing her to identify the defendant in court.12

The Commonwealth additionally argues that even if the photo

array did not constitute an unequivocal pretrial identification,

Thompson's identification of the defendant on the Facebook page

12This is not a case like Commonwealth v. Santiago, 100
Mass. App. Ct. 700, 709 (2022), in which the witnesses
"initially appeared to express some uncertainty in making their
identifications, but later testified that they in fact had been
certain all along and had expressed equivocation only because
they were afraid."

14
did, and that this provided an independent basis for satisfying

the rule established by Collins. To be sure, when Thompson

testified about finding the photograph on Facebook, she did not

volunteer that she had any residual doubt about the

identification. But neither did she express certitude about it;

she was never asked either way.13 Assuming arguendo that the

Commonwealth did not waive the argument that the Facebook

identification provided sufficient certitude to allow an in-

court identification by never raising it as a ground for its

motion in limine, we view it as too slender a reed to support

that argument.14

As the Commonwealth highlights, even where a pretrial

identification was less than unequivocal, an in-court

identification can be allowed for "good reason." The problem is

that the trial judge did not find any such good reason; indeed,

nothing indicates that he ever considered whether good reason

13In fact, her testimony at the motion to suppress hearing
identifying the person shown in the Facebook photo as the
shooter came down to a single sentence in which she said the
photo showed "the person that I seen that night." The focus of
the motion to suppress hearing was on the photo array
identification, and Thompson's spotting him on the Facebook page
served principally to explain how his photo came to appear in
the photo array.

14We pass over the question whether satisfying the Collins
test is by itself enough to allow an in-court identification
where the pretrial identification at issue was suggestive. See
Dew, 478 Mass. at 317-318 (Gants, C.J., concurring).

15
existed. Nor is any such good reason obvious on the current

record. Although Thompson's opportunity to see the defendant

was not so evanescent as to be inherently suspect, neither was

it particularly robust. This is not a case where the witness

knew the defendant or otherwise had an extended opportunity to

observe him. Compare Commonwealth v. Fielding, 94 Mass. App.

Ct. 718, 719, 723 (2019) (good cause for in-court identification

based on victim's and defendant's thirty minutes of close

interaction); Commonwealth v. Stewart, 94 Mass. App. Ct. 485,

488 (2018) (good cause for in-court identification by

eyewitnesses to crime who never lost sight of defendant before

police arrived).

Thompson testified that the defendant was in her presence

at the party for on the order of ten minutes, and during that

time, she never spoke with him and her attention was focused

instead on the inebriated Fargas.

The Commonwealth lastly argues that any error here was

harmless, because the in-court identifications were largely

duplicative of the pretrial identifications. The fact that the

witness already had testified that she was ninety percent sure

that the person in the photograph shown to her was the shooter

does not render the in-court identifications duplicative. The

rule in Collins "was born from concerns of confirmation bias

produced by the prosecution of a defendant after an equivocal

16
identification and by the risk that a jury may accord undue

weight to the in-court identification, ignoring the initial out-

of-court equivocation." Commonwealth v. Santiago, 100 Mass.

App. Ct. 700, 709 (2022). In light of such concerns, we cannot

reasonably say that we are confident that the jury were not

swayed by the in-court identifications.15

3. Conclusion. We vacate the defendant's convictions and

set aside the verdicts, while recognizing that the Commonwealth

is free to seek retrial of all indictments in its discretion.

So ordered.

By the Court (Milkey, Sacks &
Smyth, JJ.16),

Assistant Clerk

Entered: May 30, 2024.

15We recognize that the defendant's ex-girlfriend provided
corroborative evidence that he was the shooter. However, as
noted, the defendant highlighted many reasons why jurors might
conclude she was biased, and that evidence is relevant in our
consideration whether the improperly admitted in-court
identifications were prejudicial.

16 The panelists are listed in order of seniority.

17