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17-P-1380                                               Appeals Court

                 COMMONWEALTH   vs.   NICHOLAS MATOS.


                           No. 17-P-1380.

        Bristol.       December 10, 2018. - May 23, 2019.

      Present:     Green, C.J., Wolohojian, & Wendlandt, JJ.


Robbery. Assault and Battery. Identification. Evidence,
     Identification, Photograph, Argument by prosecutor.
     Practice, Criminal, Identification of defendant in
     courtroom, Instructions to jury, Witness, Argument by
     prosecutor.



     Indictments found and returned in the Superior Court
Department on May 21, 2015.

    The cases were tried before Thomas F. McGuire, Jr., J.


     K. Hayne Barnwell for the defendant.
     Stephen C. Nadeau, Jr., Assistant District Attorney, for
the Commonwealth.


    WOLOHOJIAN, J.     The defendant was convicted after a jury

trial of unarmed robbery (G. L. c. 265, § 19 [b]) and assault

and battery (G. L. c. 265, § 13A).     On appeal, he argues that

evidence he terms in-court and out-of-court identifications was
                                                                       2


erroneously admitted.   He also contends that the judge erred in

failing to give a specific unanimity instruction with respect to

the unarmed robbery charge.    Finally, he contends that various

improprieties in the prosecutor's closing argument require

reversal of his convictions.    We affirm.

    Background.    We summarize the trial evidence as the jury

could have found it.    Around 5:30 P.M. on March 2, 2015, Michael

Nichols was sitting inside the main entrance of Morton Hospital

in Taunton, having completed his shift as a technician at the

hospital, where he had worked for eighteen years.      Nichols, who

did not drive, was waiting for a taxicab (taxi) to take him to a

bar where his pool league was to meet.       Nichols had several

items with him on that particular evening:      a carrying case

containing his pool stick, his cell phone (phone), and a

backpack that contained various personal items, including his

checkbook.   As he waited for the taxi, Nichols was approached by

a white man of medium build with a darker complexion who was

wearing a red hat, a black North Face brand jacket, and blue

jeans.   Nichols did not know the red-hatted man, but he

nonetheless agreed to the man's request to borrow his phone.

The man took the phone outside and returned a few minutes later,

saying that he had left the phone in his car.      The man also told

Nichols that Nichols should follow him to his car in the parking

lot to get the phone back.     Accordingly, Nichols followed the
                                                                    3


man to his car, which was one to two hundred feet away in the

hospital parking lot.    The man offered to drive Nichols back to

the hospital entrance, and so Nichols got into the man's car.

Leaving Nichols in the car, the man went inside the hospital; he

returned about five minutes later with two other men, who got

into the rear passenger compartment of the car.    Nichols asked

for his phone, but the red-hatted man made no response.

Instead, he drove a block away from the hospital and demanded

Nichols's backpack.   When Nichols refused, the red-hatted man

punched Nichols twice in the nose and grabbed one of the straps

of the backpack to restrain Nichols.   Nichols managed to slip

his arms out of the backpack and to escape from the car.     The

man drove away with Nichols's backpack, phone, and pool stick

case.

    A police officer happened to be nearby, and Nichols

immediately reported to him the assault and robbery along with

the car's license plate number and a description of the men

involved.   Nichols was visibly upset and shaken, his nose was

bleeding, blood was running down his face, and his lip was

swollen.    Using the license plate number Nichols provided, the

police determined that the car was registered to the defendant's

girlfriend.   The police then went to the hospital, where they

viewed video footage captured by the hospital's surveillance
                                                                    4


system.   Still images from the hospital's surveillance system1

were consistent with Nichols's account of what had happened.

Those stills showed Nichols seated in the hospital lobby, a man

approaching him wearing a red hat,2 Nichols (wearing his backpack

and carrying his pool stick case) following a man in the

hospital parking lot, a man in a red hat standing near the

hospital's main lobby desk a few minutes later, and that same

man joined by another man wearing a gray hooded coat, black

sneakers, and white baseball cap with a "P" insignia on front.

     The following day, Taunton police arrested Jeremy Craven

and Matthew DaSilva for shoplifting at a department store.     In

Craven's pocket was Nichols's checkbook.    DaSilva was wearing a

gray hooded sweatshirt and a baseball hat with a "P" insignia

similar to those worn by the man standing with the red-hatted

man in the hospital lobby.   The defendant was arrested several

days later at his girlfriend's apartment.




     1 The hospital's surveillance equipment captured video
footage, which the police viewed on the evening of the crime.
But based on an internal policy concerning patient and employee
confidentiality, the hospital produced to police only still
images from the video recording. It was these still images that
were used during the trial and the grand jury proceedings.

     2 Although this information was not admitted at trial, one
of the investigating police officers recognized the defendant as
the red-hatted man in the hospital surveillance video
recordings.
                                                                     5


    Discussion.    1.   Identifications.   Because Nichols did not

know his assailant, the identity of the man in the red hat was

the central issue at trial.    Although the defendant identified

the man in the red hat in the surveillance still images as the

man who assaulted and robbed him, he never identified the red-

hatted man as the defendant.    As a result, the Commonwealth

sought to establish that the defendant was the man in the red

hat (1) by having the jury themselves assess the defendant's

resemblance to the man shown in the still images (which were

admitted), (2) through the testimony of the defendant's mother,

who testified that the man in the red hat shown in the still

images was her son, the defendant, (3) through the testimony of

the arresting officer, who identified the defendant as the man

he arrested and as the man in the booking photograph, and (4)

through circumstantial evidence, such as the fact that the

vehicle used in the crime belonged to the defendant's

girlfriend.   Because Nichols had never made an out-of-court

identification of the defendant, the trial judge agreed with the

defendant that Nichols should not be allowed to make an in-court

identification of the defendant.   See Commonwealth v. Crayton,

470 Mass. 228, 236-237, 241-242 (2014).    The defendant now

contends, however, that several "identifications" nonetheless

occurred.
                                                                     6


     a.    Surveillance images.   The first of these

"identifications" was introduced by defense counsel, who

introduced the portion of Nichols's grand jury testimony where

Nichols was shown two of the still images from the hospital's

security system.3    The first still image showed a man at the

hospital's entrance who fit Nichols's description of the red-

hatted man; the image was recorded when Nichols was waiting

outside in the man's car.    Nichols identified the man as the

person who borrowed his phone.    The second image showed the

hospital entrance twelve minutes earlier, with both Nichols and

the man in the frame.4    Nichols testified to the grand jury that

the image showed the same man when the man asked to borrow his

phone.    The defendant contends that there was no good reason to

conduct this showup identification or photographic (photo)

array, that it was impermissibly suggestive, and that Nichols

should not have been allowed to testify to this identification

at trial.

     Showup identifications are one-on-one identification

procedures in which a victim or witness is asked to identify a


     3   Nichols had not previously seen the still images.

     4 By contrast, at trial Nichols was first shown the two
surveillance photographs where both he and the red-hatted man
were present, and then was shown the photograph containing just
the red-hatted man. The order in which the photographs were
shown to Nichols avoids any claim that there was a "one-on-one"
identification process.
                                                                      7


suspect (usually in person) in the immediate aftermath of the

crime, often near or at the scene.   See Commonwealth v. Dew, 478

Mass. 304, 306-307 (2017).   No such procedure occurred here.

Nor was Nichols shown a photo array as the defendant claims.      A

photo array is a procedure by which a victim or witness is asked

to identify a suspect from among a series of photographs showing

similar-looking people.   See generally Commonwealth v. Silva-

Santiago, 453 Mass. 782, 794-796 (2009) (procedures regarding

photo arrays).   Again, no such process occurred here.

    Nonetheless, we accept arguendo the defendant's proposition

that when questioning Nichols before the grand jury, the

prosecutor engaged Nichols in a process "analogous to a one-on-

one identification" when she asked him whether he recognized the

man in the first still image, i.e., the one that showed only the

man in the red hat.   Commonwealth v. Forte, 469 Mass. 469, 477

(2014).   "An identification stemming from a videotape containing

only one individual is analogous to a one-on-one identification,

which is considered inherently suggestive."   Id.   To suppress

this identification, the defendant is required to prove "by a

preponderance of the evidence, in light of the totality of the

circumstances, that the identification procedure employed was

'so unnecessarily suggestive and conducive to irreparable

misidentification that its admission would deprive the defendant

of his right to due process.'"   Id., quoting Commonwealth v.
                                                                    8


Walker, 460 Mass. 590, 599 (2011).    This, the defendant has not

done.

    To begin, we note that the defendant has not pointed us to

(nor have we found) any case standing for the proposition that

asking a witness to identify him- or herself in a photograph is

unduly suggestive, even if the witness is the only person in the

image.   The risk of misidentifying one's own self in a

photograph seems so small as to verge on the hypothetical and,

in any event, absent other circumstances, is unlikely to be the

product of any suggestiveness inherent in the process of showing

an image depicting only one person.

    As a corollary, we believe that asking a witness to

identify him- or herself in a photograph that happens to include

another person also does not raise concerns of unnecessary

suggestiveness absent some other circumstance.   Nor does asking

the witness to identify the other person shown in such an image

raise such concerns.   In all of these situations, absent some

other circumstance, the presence of the witness him- or herself

in the image helps to protect against any suggestiveness that

otherwise inheres in a single-person identification process.

This is especially true where, as here, an image captures the

witness in the moment when he or she is the victim of a crime

and the events experienced by the witness during the crime are

shown in the photograph.   Contrast Forte, 469 Mass. at 473-474
                                                                       9


(witnesses shown videotape depicting suspect walking alone);

Commonwealth v. Austin, 421 Mass. 357, 361 (1995) (witnesses

shown videotape of robbery suspect committing different

robbery); Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 712

(2018) (witness was shown one photograph of one man he knew was

suspect).

     Moreover, other circumstances undermine the defendant's

claim that the procedure was unnecessarily suggestive.      For

example, Nichols gave a detailed description of his assailant

and of the events at issue long before he was shown the still

images, and the images merely confirmed what Nichols had

previously told police.     Likewise, seeing the still images did

not prompt any additional information from Nichols; he merely

confirmed that the photographs showed events and people he had

previously described.     As we stated above, Nichols did not

identify the defendant from the photograph.

     b.     Lay identification testimony.   The defendant challenges

the admission of his mother's lay opinion that he was the red-

hatted man in the surveillance images on the ground that the

jury were in as good a position as his mother to determine

whether he was the person captured in the images.5     A witness may


     5 The defendant also argues that his mother's identification
was prejudicial because of her potential bias against him. He
did not raise this contention below, nor was the record
developed regarding any potential bias. See Commonwealth v.
                                                                   10


offer a lay opinion as to the identity of a person depicted in a

surveillance photograph "if there is some basis for concluding

that the witness is more likely to correctly identify the

defendant from the photograph than is the jury.    Put another

way, 'such testimony is admissible . . . when the witness

possesses sufficiently relevant familiarity with the defendant

that the jury cannot also possess.'"     Commonwealth v. Vacher,

469 Mass. 425, 441 (2014), quoting Commonwealth v. Pleas, 49

Mass. App. Ct. 321, 326-327 (2000).    See Commonwealth v. Pina,

481 Mass. 413, 429-430 (2019); Mass. G. Evid. § 701 (2019).

Relevant factors to consider include whether "[the images] are

neither 'so unmistakably clear or so hopelessly obscure that the

witness is no better-suited than the jury to make the

identification'" and "whether the defendant is disguised in the

photograph or has changed his appearance since the time of the

crime."   Pleas, supra at 325, 326, quoting United States v.

Jackman, 48 F.3d 1, 5 (1st Cir. 1995).    See Commonwealth v.

Pearson, 77 Mass. App. Ct. 95, 105 (2010).    We review the

judge's decision to allow the mother to offer her lay opinion as



Burnett, 428 Mass. 469, 475-476 (1998) (party may not raise
ground on appeal that was not raised before motion judge).
Indeed, at the hearing on the Commonwealth's motions in limine,
the defendant specifically requested that his "history" with his
mother be omitted, indicated that he did not expect the nature
of the relationship to "interfere" with the mother's testimony,
and said that he would have no follow-up questions after she
identified her son.
                                                                     11


to the identity of the person in the surveillance images for

abuse of discretion.     See Pleas, supra at 328.

     The defendant does not challenge his mother's familiarity

with his appearance, nor that her familiarity was greater than

the jury's.     His contention, instead, is that the surveillance

images were sufficiently clear that the jury needed no

assistance to determine whether the defendant was the red-hatted

man depicted in them.     Having reviewed the images ourselves, we

see no error in the judge's determination that, although the

images are moderately clear, they were not "unmistakably clear,"

id. at 325, as to the red-hatted man's features such that the

mother's lay opinion threatened to "invade[] the province of the

jury to draw their own conclusions about who is who."     Pina, 481

Mass. at 430.    In addition, the defendant has not shown that the

judge erred in finding that the defendant's appearance at trial

was different from his appearance at the time of the crime and

that the mother's testimony would for that reason also be

helpful to the jury.6

     c.   Identification as person arrested and shown in booking

photograph.     The defendant challenges the arresting officer's




     6 The judge found that the defendant had less facial hair at
the time of trial, and such finding has not been shown to be
clearly erroneous; the defendant has not supplied a photograph
of his appearance at trial.
                                                                  12


in-court identification of the defendant as the man he arrested

and in the booking photographs.   The defendant argues that the

prejudicial effect of this testimony outweighed its probative

value because the jury could conflate the officer's

identification of the defendant as the man he arrested with the

identity of the man who actually committed the crimes.    He also

argues that the booking photographs should have been excluded

because the prosecutor called attention to their source and

there was no need to introduce them.   Because these arguments

were not preserved,7 we consider whether any error (if one there

were) created a substantial risk of a miscarriage of justice.

Commonwealth v. Clemente, 452 Mass. 295, 322 (2008), cert.

denied, 555 U.S. 1181 (2009).

     There was no error in allowing the officer to identify the

defendant in court as the man he arrested.   See Crayton, 470

Mass. at 242 (even where "an arresting officer . . . was also an

eyewitness to the commission of the crime, . . . the in-court

showup is understood by the jury as confirmation that the

defendant sitting in the court room is the person whose conduct

is at issue rather than as identification evidence").    The jury

knew that the officer was not an eyewitness to the crime and had

no firsthand knowledge of the perpetrator's identity.    It was


     7 At trial, the defendant objected to the booking
photographs only on the ground that they lacked probative value.
                                                                  13


clear that the purpose of the officer's testimony was merely to

show that the defendant was both the man the officer arrested

and the man in the booking photographs.    The officer did not

testify that the defendant committed the crimes.

    A judge has substantial discretion in balancing the

probative value and prejudicial impact of the booking

photographs and the judge's decision "will stand absent palpable

error."   Commonwealth v. Talbot, 444 Mass. 586, 589 n.2 (2005).

By the time of trial, the defendant, a young adult, had aged

almost two years since the surveillance images were recorded

and, as the judge found, had less facial hair than the man in

the surveillance photographs.   The booking photographs were

relevant because they showed the defendant's appearance only one

week after the crime.    They thus bore squarely on the central

question for the jury:   was the defendant the red-hatted man

shown in the surveillance images?   See Commonwealth v. Holmes,

32 Mass. App. Ct. 906, 909 (1992) (photographs showing

defendant's appearance at time of incident "admissible on the

question of identification -- a live issue at the trial").

    Because "[t]he jury knew that the defendant had been

arrested for the crime[s] being tried," Commonwealth v. Waters,

399 Mass. 708, 715 (1987), the probative value of the

photographs was not outweighed by the fact that the jury were

informed that they were taken at the defendant's booking.
                                                                  14


Unlike situations where the Commonwealth seeks to use a mugshot

from an earlier encounter with police, where (as here) the

photographs are taken in connection with the defendant's arrest

for the crimes being tried, no criminal record is suggested.8

See Commonwealth v. Vardinski, 438 Mass. 444, 453 n.13 (2003);

Commonwealth v. Andrade, 8 Mass. App. Ct. 653, 658 (1979).

     2.   Specific unanimity.   The defendant argues that the jury

should have received a specific unanimity instruction for the

unarmed robbery charge because there was more than one act of

taking of property (the initial taking of the phone and the

later takings of the backpack and pool stick).9   "[A] specific

unanimity instruction indicates to the jury that they must be

unanimous as to which specific act constitutes the offense

charged," Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987),

and is needed "where evidence of separate incidents is offered


     8 Such a risk, by contrast, accompanies the use of
photographs taken in connection with earlier arrests or police
encounters. See Commonwealth v. Blaney, 387 Mass. 628, 637-638
(1982) ("There is risk that any use in evidence of photographs
of the double type ordinarily used in police identification
files will suggest to the jury that the defendant may have a
prior criminal record. . . . Accordingly, the decisions of this
court have required judges and prosecutors to use reasonable
means to avoid calling the jury's attention to the source of the
photographs used to identify the defendant" [quotation and
citation omitted]). See also Mass. G. Evid. § 1112(b)(1)(C).

     9 The defendant did not raise this issue below, so we review
for error, and if one occurred, for a substantial risk of a
miscarriage of justice. See Commonwealth v. Freeman, 352 Mass.
556, 563-564 (1967).
                                                                  15


to the jury and any one incident could support a conviction,"

Commonwealth v. Conefrey, 420 Mass. 508, 513 (1995).

    Here, the jury had before it facts supporting only one

incident of unarmed robbery, which requires taking property from

someone's person or control "by force and violence, or by

assault and putting in fear."    G. L. c. 265, § 19 (b).   The

evidence was unequivocal that Nichols was not assaulted, put in

fear, or the subject of force or violence until he was in the

perpetrator's car and the perpetrator demanded his backpack and

punched him.   Nor was the case tried on any other theory.

Contrast Commonwealth v. Grandison, 433 Mass. 135, 147 (2001).

    3.     Closing argument.   The defendant argues that three

aspects of the prosecutor's closing argument, individually and

collectively, require a reversal of his convictions.     "In

analyzing a claim of improper argument, the prosecutor's remarks

must be viewed in light of the 'entire argument, as well as in

light of the judge's instruction to the jury and the evidence at

trial.'"   Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984),

quoting Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984).

As the defendant objected at trial, we review for prejudicial

error.   See Commonwealth v. Roy, 464 Mass. 818, 829 (2013).     If

prosecutorial error occurred,

    "[t]he consequences . . . depend on a number of factors,
    such as: Did the defendant seasonably object to the
    argument? Was the prosecutor's error limited to
                                                                     16


     'collateral issues' or did it go to the heart of the case
     . . . ? What did the judge tell the jury, generally or
     specifically, that may have mitigated the prosecutor's
     mistake, and generally did the error in the circumstances
     possibly make a difference in the jury's conclusions? . . .
     On numerous occasions, the impact of an improper final
     argument has been mitigated by the judge's forceful
     instructions to the jury that the argument was
     inappropriate and should be disregarded." (Footnote
     omitted.)

Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).     We turn now

to the three specific aspects of the closing to which the

defendant points.

     The defendant argues that the prosecutor impermissibly

argued that key elements and facts supporting the prosecution's

case were undisputed.10    We agree.   The defendant had no burden

to disprove the Commonwealth's evidence or to contradict its

witnesses' testimony; the burden always remains with the

Commonwealth, whether or not the defendant disputes the

Commonwealth's evidence.    See Commonwealth v. Waite, 422 Mass.

792, 801 (1996) ("Defendants are, of course, under absolutely no




     10The prosecutor stated: "There is no dispute that Michael
Nichols was in the lobby of that hospital on March 2nd, 2015.
And I also suggest there's no dispute the defendant was in that
same lobby of the hospital and that the defendant went up to
Michael as Michael was sitting waiting for the cab. And the
still photos show you that. I suggest there is no dispute that
Michael was assaulted, punched twice in the face, and that he
was robbed of his personal property. The only question you have
to ask yourselves is who did it." The prosecutor later
repeated, "Now, remember, the only issue you need to consider is
who punched Michael and who robbed him of his personal
property."
                                                                  17


obligation to disprove government accusations . . .");

Commonwealth v. Amirault, 404 Mass. 221, 240 (1989) ("A

prosecutor cannot comment on a defendant's failure to contradict

testimony and cannot make statements that shift the burden of

proof from the Commonwealth to the defendant"); Mass. G. Evid.

§ 1113(b)(3)(E).   However, the judge gave a forceful and

specific instruction to remediate the error,11 and gave extensive

general instructions on the presumption of the defendant's

innocence, the burden of proof, and what constitutes a proper

evidentiary basis for a verdict.   This mitigation, together with

the overwhelming strength of the Commonwealth's case, leads us

to conclude "with fair assurance" that the prosecutor's error

did not "substantially sway[]" the jury's decision (citation

omitted).   Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

     The defendant also argues that the prosecutor engaged in

impermissible vouching.   Specifically, the defendant points to

the portion of the prosecutor's closing in which she raised (and

then answered) a number of questions regarding hypothetical




     11The judge instructed the jury: "Counsel began by saying
that there is no dispute about certain things. That's improper
argument, and I understand sometimes lawyers lapse into that
phrasing, intending to talk about what the focus was on in the
evidence; but it's improper, because it might mislead the jury
into thinking that the Commonwealth has been relieved of its
burden of proving certain things. Everything is in dispute
. . . [K]eep in mind everything is in dispute in this case."
                                                                  18


scenarios designed to show why Nichols was telling the truth.12

Taken in context, and keeping in mind that the defendant's

closing argument focused largely on Nichols's credibility, the

prosecutor's comments did not constitute impermissible vouching.

"A prosecutor is permitted to 'make a fair response to an attack

on the credibility of a government witness.'"   Commonwealth v.

Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008),

quoting Commonwealth v. Chavis, 415 Mass. 703, 713 (1993).

     Finally, the defendant argues that the prosecutor's

statements that it was the defendant who asked to borrow

Nichols's phone, invited Nichols to his car, drove Nichols away

from the hospital, and assaulted and robbed Nichols were not

grounded in the evidence.   Although "prosecutor[s] may not

misstate evidence or refer to facts not in evidence in a closing




     12The prosecutor stated: "Ask yourselves why would Michael
[Nichols] lie to make this up? What would be the reason to lie?
Well, maybe a person would lie if he didn't like the other
person, or if he had an issue with the other person, if he
wanted to get back at someone. But that doesn't apply here,
because Michael doesn't know the defendant. He didn't know the
two men in the back seat. So he has no reason to lie or make up
about what happened to him. Now, maybe a person would lie to
protect somebody, but again, Michael doesn't know them. So he
has no reason to protect anybody. Maybe a person would lie
because they were afraid, but Michael had gotten out of the car,
away from all three of them. He wasn't in danger anymore.
Maybe a person would lie if he had something to hide. But if
Michael had something to hide, would he have immediately gone to
the police for help? That is the first thing he did. . . . Who
do you believe? . . . Michael who[se] testimony, I suggest, was
credible in every way?"
                                                                    19


argument," Commonwealth v. Goddard, 476 Mass. 443, 449 (2017),

they are entitled "to marshal the evidence and suggest

inferences that the jury may draw from it."     Commonwealth v.

Drayton, 386 Mass. 39, 52 (1982).    While it is true that Nichols

himself did not identify the defendant as the perpetrator, he

identified the red-hatted man in the surveillance photographs as

such.   And the defendant's mother identified the defendant as

the red-hatted man.    The prosecutor did not overstep the bounds

of acceptable argument when her argument connected the

evidentiary dots.     The judgments are therefore affirmed.

                                     So ordered.
