MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, after a jury trial, of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. He raises four arguments on appeal. First, he argues two errors with respect to the jury instructions: one, that the jury should have been instructed to consider the evidence against each defendant separately; and, two, that the judge should not have given his codefendant the benefit of a lesser included offense instruction. Second, he argues that trial counsel was ineffective for failing to request an instruction on identification. Third, he argues that statements he made to police officers were products of custodial interrogation and should have been suppressed given the absence of Miranda warnings. Finally, he argues that the arresting officers’ testimony regarding their previous familiarity with the defendant was prejudicial, and the trial judges curative instructions on the subject were inadequate to cure the error. We affirm.
1. Jury instructions. The defendant makes two arguments regarding the jury instructions given at trial. Where the defendant objected to both sets of instructions before the jury was sent to deliberate, we review each argument for prejudicial error.
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See Commonwealth v. Kelly, 470 Mass. 682, 687 (2015). “This requires a two-part analysis: (1) was there error; and (2) if so, was that error prejudicial.” Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Here, there was no error, and we need not reach the second step.
We are not persuaded by the defendants argument that because the trial judge did not repeat the instructions concerning the elements of the offense for each defendant, the jury were not informed that the evidence against each defendant needed to be evaluated separately. To begin with, the judge informed the jury that they should take the same substantive instructions and apply them to the charges against the codefendant. Moreover, the judge clearly informed the jury that they would “receive two verdict slips, one for each defendant, with the indictments of assault and battery with a dangerous weapon against each of them,” and further explained that for each indictment, the jurors had to decide whether the Commonwealth “met its burden of proving beyond a reasonable doubt that the defendant named on that verdict slip is guilty of the crime charged” (emphasis added). The judge continued by explaining the Commonwealths burden extended to proving every element for each defendant, including “that the defendant named in that indictment intentionally participated in some meaningful way in the commission of the crime” (emphasis added).
Viewing the instructions as a whole, and presuming, as we must, that the jury understood and followed the judges clear instructions, we see no error in the instructions. See Commonwealth v. Harris, 464 Mass. 425, 434 (2013) (jury instructions must be viewed and interpreted “as a whole,” not scrutinized piece by piece [citation omitted]); Commonwealth v. Helfant, 398 Mass. 214, 228 (1986) (jury presumed to follow clear instructions).
The defendant next argues that the judge should not have given a lesser included offense instruction on assault and battery for the codefendant (who like the defendant had been charged with assault and battery by means of a dangerous weapon). “A lesser included offense instruction should be given where ‘the evidence at trial presents a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.’ ” Commonwealth v. Rios, 96 Mass. App. Ct. 463, 476 (2019), quoting Commonwealth v. Donlan, 436 Mass. 329, 335 (2002). “[I]f the evidence is sufficiently in dispute at the trial so that a jury may rationally find the defendant not guilty of the greater and guilty of the lesser offense, a judge should give a lesser included offense instruction.” Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 692 (1998).
The evidence supported the judges decision to give the lesser included offense instruction. The victim testified that it was the male assailant, not the female one, who was on the side where his face was cut. This evidence permitted the jury to find that the defendant (who is a man) was the one that wielded the knife, rather than the codefendant (who is a woman). In addition, the Commonwealth put forward no evidence that the unarmed assailant knew the other assailant had a knife. The absence of such evidence permitted the jury to find that the Commonwealth had not carried its burden to prove all elements of the assault and battery with a dangerous weapon charge against the codefendant. See Rios, 96 Mass. App. Ct. at 476.
2. Ineffectiveness of counsel. For the first time on appeal, the defendant argues that trial counsels failure to request an identification instruction deprived him of effective assistance of counsel. “[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) (“[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight”). Ineffective assistance of counsel “claims are properly considered on direct appeal only ‘when the factual basis of the claim appears indisputably on the trial record.’ ” Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 761 (2016), quoting Zinser, supra at 809 n.2.
Such is not the case here. Given that there was no eyewitness testimony identifying the defendant as the assailant, there was no factual basis for an identification instruction. See Commonwealth v. Johnson, 470 Mass. 389, 395-396 (2015) (judge is not required to give identification instruction where there is “no incriminating eyewitness identification testimony of consequence that the jury needed to evaluate as to accuracy, importance, or quality”).
3. Motion to suppress. The defendant next argues that the statements he made to an officer without having first received Miranda warnings should have been suppressed because they were the product of custodial interrogation. In “reviewing a ruling on a motion to suppress, we accept the judges subsidiary findings of fact absent clear error, but conduct an independent review of [her] ultimate findings and conclusions of law.” Commonwealth v. Libby, 472 Mass. 37, 40 (2015), quoting Commonwealth v. Clarke, 461 Mass. 336, 340 (2012). “The requirements of Miranda v. Arizona, 384 U.S. 436, 444 (1966) are not triggered unless the interrogation is custodial, and a defendants failure to receive or understand Miranda warnings, or police failure to honor Miranda rights, does not result in suppression of a voluntary statement made in a noncustodial setting.” Commonwealth v. Hilton, 443 Mass. 597, 608-609 (2005), S.C., 450 Mass. 173 (2007).
“To determine whether a defendant was subjected to custodial interrogation, ‘the court considers several factors: (1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest.’ ”
Commonwealth v. Cawthron, 479 Mass. 612, 617-618 (2018), quoting Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). “The determination of custody depends primarily on the objective circumstances of the interrogation, and not on the subjective views of either the interrogating officers or the person being questioned.” Commonwealth v. Sneed, 440 Mass. 216, 220 (2003).
The evidence at the suppression hearing permitted the judge to conclude that the defendant was not in custody when he made the inculpatory statements. The statements were made while the defendant was in an alley behind a YMCA. There was no overwhelming police presence, and there was only one officer in the immediate vicinity when the defendant began speaking. The interaction between the defendant and the officer was informal, was initiated by the defendant, and the officer did not convey to the defendant that he was a suspect until after the inculpatory statement was made. Finally, before the statement was made, there is no indication that the defendant would not have been able to leave the scene or terminate the conversation with the officer. Although the interaction ended with the defendants arrest, the defendants ability to leave the scene was not terminated until after the officer spotted a knife at his feet.
4. Police officers’ familiarity with the defendant. The defendants final argument is that allowing the officers’ testimony to their familiarity with him was error, and that the judges curative instructions did not sufficiently cure the prejudice. Although timely objection generally preserves the argument for appeal, where, as here, no objection is lodged after the judge gives a curative instruction, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Abrahams, 85 Mass. App. Ct. 150, 155 (2014). “A substantial risk of a miscarriage of justice exists when we have a ‘serious doubt whether the result of the trial might have been different had the error not been made.’ ” Commonwealth v. Valentin, 470 Mass. 186, 189 (2014), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005).
Associational evidence -- such as police officers testifying that they had dealt with a defendant in the past -- is “suspect.” Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255, 259 (1999). See Commonwealth v. Szemetum, 3 Mass. App. Ct. 651, 653-654 (1975) (“It was error to admit the testimony that arrests had been made for the sale of heroin in the area and that the defendant had been seen in that area on previous occasions”). Here, one officer testified that he was familiar with the codefendant from previous incidents, and another officer testified that he had encountered the defendant before and knew him by first and last name. We agree that the testimony should have been avoided.
Nonetheless, the judge cured any potential prejudice by twice giving clear, detailed and focused curative instructions: once close in time to the testimony, and once during the final charge.
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“We presume that a jury understand and follow limiting instructions, ․ and that the application of such instructions ordinarily renders any potentially prejudicial evidence harmless.” Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).
Judgment affirmed.
FOOTNOTES
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. Although the defendant did not object to the provision of a lesser included offense instruction, he relies on the fact that the codefendant preserved her objection, thus putting the trial judge on notice. See Commonwealth v. DePina, 476 Mass. 614, 624 n.9 (2017) (where one codefendant objected at trial, “we treat the issue as preserved for both defendants”). See also Commonwealth v. Charles, 57 Mass. App. Ct. 595, 598 n.7 (2003).
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. The judges final instructions on this point were as follows:“You heard some evidence during this trial regarding whether certain police officers had seen or interacted with either or both defendants before the events at issue in this case. You may only consider that evidence in evaluating whether the police knew either defendant, you may not consider it for any other reason. Police officers may interact with people for many different reasons, and you may not speculate about why a police officer may have interacted with either defendant in the past. You may not consider that as evidence of anything other than the officers ability to recognize the defendant on the night at issue here.”