Com. v. Amado

• Decision Date: 20 August 1982
• Parties: COMMONWEALTH v. Christian AMADO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 257

439 N.E.2d 257

387 Mass. 179

COMMONWEALTH v. Christian AMADO.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 3, 1982.

Decided Aug. 20, 1982.

Frank G. Kelleher and Walter T. Healy, Boston, for defendant.

Carol Anne Fagan, Asst. Dist. Atty. (Peter J. Muse, Legal Asst. to the Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

On October 29, 1980, a jury in the Superior Court in Suffolk County found Christian Amado guilty of murder in the first degree. He was sentenced to life imprisonment and filed a timely notice of appeal. The defendant's principal contentions are that the trial judge erred by allowing three police officers to testify regarding an alleged pretrial identification of the defendant by the chief prosecution witness, and by denying the defendant's motion for a required finding of not guilty, which he made at the close of the Commonwealth's case and renewed at the close of all the evidence (see Mass.R.Crim.P. 25, 378 Mass. 896 [1979] ). He also claims error with respect to two other evidentiary rulings of the judge. We conclude that the defendant's motion for a required finding of not guilty should have been allowed and we reverse the judgment of conviction. We, therefore, do not discuss the defendant's other claims of error.

We summarize the testimony concerning events which occurred on the night of the murder. On February 4, 1980, between 6:30 P.M. and 7 P.M., Willie Ashley, a resident of 131 Zeigler Street in the Roxbury section of Boston, was returning home from walking his dog when he encountered the victim, George Sneed. They walked together to 131 Zeigler Street and Ashley went inside, leaving Sneed standing on the front stairs. Frederick Johnson was visiting his fiancee who lived at 13 Cluny Court, directly across the street. While Ashley was in his apartment, Johnson approached the entrance, hoping to borrow cigarettes from one of several acquaintances who lived in the building. He spoke briefly with Sneed and was about to ring a doorbell when Ashley came out, talked to Johnson and Sneed for a moment, then walked up the street. Johnson and Sneed remained on the steps.

Johnson rang a doorbell and was waiting for someone to answer when he heard a sound from behind him. He turned and saw a man step up to the stairwell. The man pulled a rifle from underneath his coat and said to Sneed, "Do you think I'm some kind of faggot or punk?" He then shot Sneed three times, turned and ran. Johnson, who had put his hands up when the assailant first produced the rifle, started to run in the same direction as the assailant, then changed his mind, and returned to his fiancee's apartment. Two police officers who were in the area were directed to the scene of the shooting. They arrived at the scene at approximately 8:30 P.M., but were unable to obtain any information about the shooting from the crowd that had gathered.

The key issue at trial was the identity of the assailant, and the crucial witness on identity was Frederick Johnson, the only eyewitness to the murder. His testimony and that of police officers concerning Johnson's alleged pretrial photographic identification of the defendant will be discussed in some detail later in this opinion.

Apart from the testimony of Johnson and testimony attributed to him by others, there was little evidence linking the defendant to the crime. Willie Ashley heard the three shots as he walked away from the scene and, upon turning, saw two people running away from the building. It was too dark for him to see the individuals well enough to describe them. He testified that one of them had his hands up and "looked like Freddie [Johnson] ... from a distance," although he admitted on cross-examination that he "couldn't definitely say it was Freddie." The other man was "tall ... [a]bout 6 1/2 feet," and was wearing a long, dark coat and a dark hat. Asked on cross-examination whether this other person was taller than the defendant, whom Ashley had seen before but did not know personally, Ashley replied, "I couldn't tell. I don't know."

Testimony on the identity of the assailant. ¹ Frederick Johnson was called to testify at trial as a witness for the Commonwealth. He readily answered a series of questions on the sequence of events which culminated in the murder of George Sneed. On the issue of the identity of the assailant, however, Johnson was an extremely reluctant witness for the Commonwealth. He described the assailant at trial as a tall, light complexioned black man with a large nose who was wearing a knit skull cap "pulled down to the top of his eyebrows," "a turtleneck or a scarf ... pulled up to his top lip," and a dark three-quarter length coat. Asked whether he recognized the assailant as someone he had seen before, he answered, "No." Immediately after this colloquy, the prosecutor asked Johnson a number of questions about the defendant. Johnson testified that he did not know the defendant personally but had seen him "[a] couple of times" before February 4, 1980, the date of the murder.

Evidence was introduced that on February 11, 1980, Johnson accompanied Willie Ashley to the district two police station in Roxbury after Ashley informed Johnson that the police wanted to talk with him about the murder. At trial, the prosecutor questioned Johnson extensively concerning events which occurred at the station in an effort to show that Johnson made a positive identification of the defendant as the killer at this time. Johnson's testimony became increasingly evasive and confusing, and the prosecutor repeatedly sought to "refresh his recollection" of events at the station by showing him what purported to be a transcript of a taped statement he had given to the police at the station. ² Johnson admitted having gone to the station and having talked there with a Detective Lawrence Celester and then with two other homicide detectives who arrived later. He testified that he had answered questions about the murder and had given a statement regarding his observations and that his answers and statement had been taped. When first asked whether, during the course of his statement, he had given a description of the person he saw on February 4, 1980, Johnson replied that he had given "a description of a picture I had looked at." He denied having given the police any description of the assailant. After he was reminded of his in-court description of the assailant, however, Johnson admitted having given the same description to the police on February 11, but claimed not to remember whether his oral description had been taped. When Johnson was shown the transcript of his statement to refresh his recollection, and was pressed further as to the description he had given, he stated, "I gave the description of the man I saw in the picture that Detective Celester showed me. Before the detectives came." This answer was struck as unresponsive, on objection of the Commonwealth. The judge then said, apparently in an effort to clarify the situation, "The question to this witness, which requires your answer, is that if this statement ... which was taped does refresh your recollection, what did you--how did you describe the defendant, not as you described him after being shown a photograph, but on the night of February 4th" (emphasis added). Johnson then stated that, at the police station, he had given "the description of a man that closely resembled the man that I might have seen."

Johnson's testimony with respect to the photographs shown to him at the station was equally confusing. He first testified that Detective Celester had shown him a set of eight photographs before the homicide detectives arrived, that he had not recognized any of the photographs "outright," but the face in one photograph "looked familiar." Asked whether he saw that face in the court room, Johnson pointed to the defendant. He testified that police officers had shown him two other sets of photographs at the station and that he had seen "familiar faces" in both sets but had seen no one who was present in the court room. With respect to his taped statement, Johnson did not remember the questions he had been asked, the answers he had given whether he has been shown photographs during the taping, or whether he had picked out any photographs.

After the trial resumed the next day, Johnson testified that while at the station on February 11 he had identified a photograph of the defendant. ³ He said he "knew of" the defendant and he thought "they call him Bugsy." ⁴ The prosecutor did not ask Johnson whether the photograph he had identified was that of the killer. Later, Johnson testified that a set of photographs had been shown to him during the taping and that he had picked out the photograph of the defendant at that time. The prosecutor then asked Johnson whether he had "given the name Bugsy during the course of the taping." After his memory was refreshed with the transcript of his statement, Johnson affirmed that he had "given the name Bugsy during the statement." At this point, defense counsel asked that Johnson be allowed to read the answer that he had given. The colloquy set out in the margin followed. ⁵

The prosecutor never asked Johnson whether the defendant was the man who killed George Sneed. On cross-examination by defense counsel, Johnson testified that the defendant was not the assailant and was not at the scene on the night of the murder. When pressed, Johnson stated that he was "positive" that the defendant was not the killer.

Detectives Lawrence Celester, George H. Whitley, and John R. Spencer testified that they interviewed Johnson at the police station on February 11, that the interview was taped, and that Johnson picked out the defendant's picture from an array of eight photographs shown to him during the taped session. Over the defendant's objection, each detective was allowed to testify to a...