NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

17-P-46                                                  Appeals Court

                 COMMONWEALTH   vs.   PAUL J. STEWART.


                              No. 17-P-46.

          Middlesex.      March 2, 2018. - November 14, 2018.

             Present:    Maldonado, Blake, & Desmond, JJ.


Assault and Battery by Means of a Dangerous Weapon. Evidence,
     Identification, Identification of victim, Self-serving
     statement. Identification. Practice, Criminal,
     Identification of defendant in courtroom, Jury and
     jurors. Jury and Jurors.



     Complaint received and sworn to in the Somerville Division
of the District Court Department on March 19, 2015.

    The case was tried before Paul M. Yee, J.


     Kerry A. Haberlin for the defendant.
     Randall F. Maas, Assistant District Attorney, for the
Commonwealth.


    MALDONADO, J.       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
                                                                    2


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,

470 Mass. 228 (2014).    Because we conclude, as did the judge,

that Crayton does not apply where, as here, the witnesses made a

prior identification of the defendant at the scene of the crime,

we affirm.

    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.
                                                                   3


    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 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.
                                                                         4


     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, 470 Mass. at 238-246,

the defendant countered that the witnesses' identifications were

inadmissible because the witnesses "did not identify the

defendant as the perpetrator of the alleged crime at any time




     1   The defendant provided the woman's full name to Furtado.
                                                                    5


prior to the trial" and "did not positively identify the

defendant as the perpetrator prior to the trial," and "there is

not good cause to permit in-court identification at the trial."

The judge heard arguments on the motion and, rejecting the

defendant's claim that Crayton applied, ruled in favor of the

Commonwealth, stating:     "There was an unequivocal, positive

identification of the defendant during a non-suggestive

identification.    So there's good reason to admit their

identification in court."    See Commonwealth v. Dew, 478 Mass.

304, 315 (2017).    Contrast Commonwealth v. Collins, 470 Mass.

255, 262 (2014).

    In Crayton, 470 Mass. at 241, the Supreme Judicial Court

announced a new rule, holding that "[w]here 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 evidence only where there is 'good reason'

for its admission."    The defendant asserts that because neither

M.R. nor K.E. participated in an out-of-court pretrial

identification procedure, under the rule pronounced in Crayton,

they should have been prohibited from identifying the defendant

in court.   We disagree.

    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-
                                                                           6


court identification procedure, and the in-court identification

is therefore the only identification of the defendant made by an

eyewitness" (emphasis original).        Id.   This is where the

defendant's argument fails.

       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."      Id. at 244.    Accordingly, the defendant's reliance

on the Crayton rule for the exclusion of M.R. and K.E.'s in-

court identifications is misplaced.2

       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 id. at

241.       The rule announced in Crayton provides that "there may be



       We also see no merit in any assertion that the
       2

identifications should have been excluded because their
probative value was outweighed by the danger of unfair
prejudice. Dew, 478 Mass. at 315.
                                                                     7


'good reason' for the first identification procedure to be an

in-court showup."   Id. at 242.   The court stated, for example,

that "'[g]ood reason' might . . . exist 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.   Although M.R. and K.E. are not police eyewitnesses, they

were eyewitnesses who never lost sight of the culprit and

remained on the scene until police arrived to make the arrest.

Under these circumstances, their in-court identifications were

similarly confirmatory.

      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, 469 Mass. 834, 842 (2014) ("the

Commonwealth may submit a case wholly on circumstantial

evidence, and inferences drawn from that evidence need only be

reasonable and possible; [they] need not be necessary or

inescapable" [citations and quotation omitted]).
                                                                     8


     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, 432 Mass. 657, 660

(2000); G. L. c. 277, § 35.    Here, it is reasonable to infer

from the record that the woman who was with the defendant when

the officers arrived on the scene was the same woman that M.R.

and K.E. had seen the defendant hit with the cane.    Nothing more

was required.4




     3 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.

     4 Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995), upon
which the defendant relies, is inapposite. That case, involving
a subsequent offense charge, addresses the question of the proof
required to establish the identity of the defendant and the
individual named in the prior conviction. Here, the victim's
legal identity was irrelevant.
                                                                    9


    b.    Defendant's statement to police.   At trial, the

defendant objected to the admission of his statement to Officer

Furtado denying that "anything happen[ed]."   Assuming without

deciding that the judge erred by permitting the Commonwealth to

introduce the statement, see Commonwealth v. Smith, 473 Mass.

798, 813 n.22 (2016), the error was not prejudicial.    See

Commonwealth v. Womack, 457 Mass. 268, 274-275 (2010).    The

denial was exculpatory and consistent with the defense that the

witnesses could not have seen what they claimed to see.       See

Commonwealth v. Emeny, 463 Mass. 138, 149 (2012).   See also

Womack, supra at 276 (no prejudice where defendant's general

denial of accusation was erroneously admitted in evidence;

"[t]he core of any prejudice is more likely caused by admission

of the accusations than the denials").

    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
                                                               10


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, 471 Mass. 179, 191 (2015).

                                    Judgment affirmed.




     5 The alternate juror was not called upon to participate in
the jury deliberations. See Commonwealth v. The Ngoc Tran, 471
Mass. 179, 190 n.11 (2015).
