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 

1 Based on the defendant's criminal record -– which was 

established in a separate jury-waived trial -– the judge applied 

various enhancements at sentencing. 
2

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.
3

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.
4

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.
5

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.
6

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.
7

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. 
8

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 
9

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.
10

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. 
11

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,
12

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 

10 The fact that Thompson found six or seven Facebook 

accounts associated with the name Joey Crack further reduced any 

suggestiveness.
13

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 

11 One 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. 
14

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 

12 This 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."
15

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 incourt 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 

13 In 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. 

14 We 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).
16

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 
17

identification and by the risk that a jury may accord undue 

weight to the in-court identification, ignoring the initial outof-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.

15 We 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.