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

22-P-1020

COMMONWEALTH

vs.

KEITH D. CORREIA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant 

was convicted of larceny of a motor vehicle, negligent operation 

of a motor vehicle, and leaving the scene of property damage. 

On appeal, the defendant maintains that (1) identification 

testimony from eyewitnesses violated Commonwealth v. Crayton, 

470 Mass. 228, 237, 242-243 (2014); (2) his trial counsel was 

ineffective; and (3) the evidence against him was insufficient. 

We affirm. 

Background. The jury could have found that, on the evening 

of February 19, 2019, a couple leaving a restaurant saw the 

defendant checking the door handles of cars parked on the 

street, apparently to see if they were unlocked. After getting 

into their own car, the couple drove to a nearby parking lot, 

where they saw what appeared to be the same person "rummaging 
2

through a car." The wife called the police to report what they 

saw, and the couple then saw the defendant move to a different 

car, a gray Nissan Pathfinder. The defendant got into the 

Pathfinder and drove it out of the lot. The couple started to 

follow behind in their own car. They saw the Pathfinder almost 

hit another vehicle, accelerate through an intersection, and hit 

two other vehicles along the street, which caused one of the 

Pathfinder's tires to pop and the rim of the wheel to spark. 

There was a trail of "either oil or coolant" which the couple 

followed, eventually finding the Pathfinder "smashed" into 

another vehicle, with the same man they witnessed on the street 

and in the parking lot earlier (the defendant) walking away from 

the accident. Both members of the couple testified that they 

recognized the man by his jacket and hat, though the wife 

testified that the two had disagreed on the color of the man's 

jacket. The wife had been on the phone with the police while 

the couple was following the Pathfinder. When police arrived at 

the scene, the husband directed the police to the defendant, who 

was then walking away from the car, and he was arrested. 

The defendant filed a motion in limine to prevent in-court 

identifications at trial. The judge took no action on the 

motion, reserving a ruling until in-court identifications

occurred. The couple had differing initial accounts of the 

defendant's appearance -- they disagreed about the color of his
3

jacket, and while the husband thought the defendant was white, 

the wife thought he had dark skin. 

During the husband's testimony, he was asked about his 

ability to recognize the person he had seen and said that he had 

recognized the defendant "as soon as he walked through the 

courtroom doors this morning." The defendant objected to the 

statement as impermissibly suggestive but did not move to strike 

the identification or ask for a curative jury instruction. The 

judge instructed the Commonwealth to lay a foundation before 

prompting an in-court identification of the defendant but did 

not sustain the objection or (sua sponte) strike the statement. 

The husband then testified that he did not get a good look at 

the person's face, and the Commonwealth did not pursue the 

issue. 

The wife also testified that she had not gotten a good look 

at the driver's facial features and that she had recognized him 

by his clothing, but she was nonetheless confident in her 

ability to identify the driver. The judge overruled the 

defendant's objection to the identification. The wife then 

identified the defendant. 

The arresting officer testified and identified the 

defendant at trial as well. That officer had also taken some 

items from the defendant's person after detaining him, including 

a Nissan car key with a broken loop. Over the defendant's 
4

objections, photos of the key and booking photos were entered 

into evidence. 

Discussion. 1. In-court identifications. The defendant 

maintains that both the husband's and wife's in-court 

identifications were Crayton errors. Under Crayton, 470 Mass. 

at 237, 242-243, if there was no prior out-of-court 

identification, an in-court identification is only allowed if 

there is a "good reason." "Good reasons" include "where the 

eyewitness was familiar with the defendant before the commission 

of the crime," and "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.

"In both of these circumstances, the in-court [identification]

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." Id. 

The Commonwealth bears the burden of showing good reason 

for the in-court identification. See Crayton, 470 Mass. at 243. 

Here, with respect to the identifications by the couple, the 

Commonwealth asserted that the couple had directed the police to 

the scene. There had been no out-of-court identification 

procedure like a "showup" or a photo array. The couple was not 

previously familiar with the defendant. See id. at 242. 
5

Because there was no good reason for the judge to allow in-court 

identifications from the couple, the trial judge erred by 

denying the defendant's motion in limine to prevent such 

identifications, and by overruling the defendant's objections to 

the wife's in-court identification. However, these errors did 

not prejudice the defendant. See Commonwealth v. Ortiz, 487 

Mass. 602, 610-611 (2021). Given the strength of the other 

evidence presented to the jury, including an arresting officer's 

in-court identification of the defendant,1 the errors "did not 

influence the jury, or had but very slight effect." Id. at 610, 

quoting Commonwealth v. Brown, 456 Mass. 708, 725 (2010), S.C., 

466 Mass. 1007 (2013). 

The husband's in-court identification stands on slightly 

different footing from the wife's; it was not responsive to the 

Commonwealth's questioning but was instead spontaneous. The 

defendant objected, which resulted in the judge's instructing

the Commonwealth to lay the foundation for an identification. 

After failing to do so, the Commonwealth did not pursue an 

identification from the husband. The defendant did not move to 

strike the husband's unprompted statement or request a 

corrective jury instruction. We cannot say that the trial judge

1 While the defendant also challenges the arresting 

officer's identification, that identification was permissible 

under Crayton, 470 Mass. at 242. 
6

abused his discretion by not taking up those tasks sua sponte. 

Further, as discussed above, even if the judge had erred, it 

would not have prejudiced the defendant.2 See Ortiz, 487 Mass. 

at 610-611. 

2. Ineffective assistance. The defendant claims, for the 

first time on appeal, that his trial counsel provided 

ineffective assistance by not moving to suppress the car key 

with the broken loop.3 Absent exceptional circumstances, we do 

not review claims of ineffective assistance of counsel for the 

first time on appeal. Commonwealth v. Zinser, 446 Mass. 807, 

809 n.2 (2006), and cases cited therein. Because the factual 

basis for the defendant's claim does not "appear[] indisputably 

on the trial record," Commonwealth v. Adamides, 37 Mass. App. 

2 The judge also did not err by admitting photographs of the 

defendant from after his arrest, as it was reasonable for him to 

conclude that any risk of unfair prejudice did not substantially 

outweigh their probative value. See Crayton, 470 Mass. at 249 

n.27, citing Mass. G. Evid. § 403 (2014). 

3 The defendant also appears to raise, for the first time, 

arguments related to whether there was probable cause to stop 

and arrest him, and appears to suggest that an arrest warrant 

was required, that the seizure of the key with the broken loop 

was unlawful, and that the stop was racially discriminatory. 

Because these issues were not raised below, we ask whether the 

record is "adequate to permit review on the merits" and, if so, 

review to determine whether there was an error and, if any, 

whether it created a substantial risk of a miscarriage of 

justice. Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 

(2019). The record, including the trial transcript, is 

inadequate to permit review of the defendant's claims under the 

United States Constitution and the Massachusetts Declaration of 

Rights. See id. at 797-798. 
7

Ct. 339, 344 (1994), it does not fall "within that narrow 

category of claims that an appellate court can resolve on the 

trial record," Zinser, supra at 811. Even if this claim were 

properly before us, it would fail, because counsel's conduct did 

not fall "measurably below that which might be expected from an 

ordinary fallible lawyer." See Commonwealth v. Saferian, 366 

Mass. 89, 96 (1974). Further, "to prevail on an ineffective 

assistance of counsel claim on the ground of failing to file a 

motion to suppress, the defendant has to demonstrate a 

likelihood that the motion to suppress would have been 

successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004). 

The defendant has not done so here. See note 3, supra.

3. Sufficiency of the evidence. The defendant maintains 

that the trial judge should have granted his motions for 

required findings of not guilty because the evidence against him 

was insufficient. "In reviewing a denial of a motion for a 

required finding of not guilty, our inquiry is whether the 

evidence, viewed in the light most favorable to the 

Commonwealth, was sufficient to satisfy a rational trier of fact 

that the essential elements of the crime have been proven beyond 

a reasonable doubt." Commonwealth v. Vazquez, 69 Mass. App. Ct. 

622, 626 (2007). "[W]e keep in mind that the evidence relied on 

to establish a defendant's guilt may be entirely circumstantial,

. . . and that the inferences a jury may draw from the evidence 
8

'need only be reasonable and possible and need not be necessary 

or inescapable.'" Commonwealth v. Linton, 456 Mass. 534, 544 

(2010), S.C., 483 Mass. 227 (2019), quoting Commonwealth v. Lao, 

443 Mass. 770, 779 (2005). "[F]indings drawn partly or wholly 

from testimonial evidence are accorded deference and not set 

aside unless clearly erroneous," Commonwealth v. Tremblay, 480 

Mass. 645, 655 (2018), but where factual findings are 

"predicated not on the assessment of witness credibility but 

rather, on documentary materials," Commonwealth v. Pugh, 462 

Mass. 482, 495 (2012), we review the evidence de novo. See 

Tremblay, supra at 656. 

Here, the evidence was sufficient to prove that the 

defendant stole and negligently operated the Pathfinder and left 

the scene of the accident. Testifying witnesses, including an 

arresting officer, placed the defendant at the scene of the car 

theft and the accident, saw the Pathfinder dangerously and 

illegally cross multiple intersections, and witnessed it 

crashing into parked vehicles. When the defendant was arrested 

a block away from the accident, a Nissan car key was in his 
9

pocket. From the evidence, a jury could reasonably have 

concluded that the defendant committed the charged crimes.4 

Judgments affirmed.

By the Court (Hand, 

Hershfang & Brennan, JJ.5),

Assistant Clerk

Entered: April 9, 2024.

4 To the extent we have not specifically addressed any of 

the defendant's arguments, we have considered them and do not 

find them worthy of discussion. See Commonwealth v. Domanski, 

332 Mass. 66, 78 (1954).

5 The panelists are listed in order of seniority.