Com. v. Daye

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation393 Mass. 55,469 N.E.2d 483
PartiesCOMMONWEALTH v. Dennis M. DAYE.
Decision Date24 September 1984

Michael A. Laurano, East Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Joshua D. Werner, Asst. Dist. Atty., with him), for the Commonwealth.


ABRAMS, Justice.

We granted further appellate review to consider the Commonwealth's request that we adopt Proposed Mass.R.Evid. 801(d)(1)(A), 1 permitting the introduction of limited categories of prior inconsistent statements for their probative worth. The defendant, Dennis M. Daye, was convicted at a jury trial on indictments charging him with assault by means of a dangerous weapon and unlawfully carrying a firearm, and, on an indictment for assault with intent to murder, of the lesser included offense of assault with intent to kill. Daye appealed to the Appeals Court, alleging error in the admission of testimony regarding pretrial photographic identifications and grand jury statements by witnesses who would not, or could not, identify him at trial. The Appeals Court reversed, see Commonwealth v. Daye, 16 Mass.App. 645, 454 N.E.2d 502 (1983), and we agree with that court that a new trial is required. We are persuaded, however, by arguments in favor of the admissibility of a witness's inconsistent grand jury testimony for its probative value. We therefore alter, with certain limitations to be discussed in this opinion, our common law evidentiary rule that such statements are admissible only for impeachment purposes. We leave for future resolution on a case-by-case basis questions concerning the probative use of other inconsistent statements within Proposed Mass.R.Evid. 801(d)(1)(A). 2 We summarize the facts. In the late evening of April 24, 1980, two youths began to wrestle on a sidewalk adjacent to a bar in the city of Revere. Shortly thereafter, a man emerged from the bar, stated that "[t]here'll be no fighting down here," and ordered the youths to "go around the corner." Following an altercation with one of the combatants, the man produced a gun and, from a distance of two feet, shot the youth in the lower abdomen. The man returned the gun to his pocket, and, in the company of another man who appeared from the bar after the shot was fired, walked away, commenting that the victim "didn't listen." The gunman and his companion entered an automobile parked down the street from the bar and drove away.

The evidence implicating the defendant consisted principally of one in-court identification of him as the gunman by an eyewitness who admitted on cross-examination that earlier he had identified a codefendant, Michael Prochilo, 3 as the gunman during a lineup conducted several days after the shooting. 4 The victim and five other witnesses present at the scene of the shooting were unwilling or unable to identify the defendant in court. 5 There was evidence that three of those witnesses, including the victim, also identified Prochilo as the gunman prior to trial. Statements elicited from some of the witnesses at trial suggest that their testimony may have been colored by fear of reprisals if they made an identification at trial. 6

The evidentiary issues we are asked to decide are affiliated with the Commonwealth's attempts to demonstrate that witnesses who did not identify the defendant at trial had done so from pretrial photographic arrays and before the grand jury. We consider initially evidentiary rulings that we conclude were erroneous and require a new trial.

1. Pretrial photographic identifications. The defendant challenges the judge's ruling permitting the Commonwealth to elicit from a police officer evidence that Steven Ciambelli and James O'Connor, two witnesses to the shooting, positively identified photographs of the defendant as the gunman from pretrial photographic arrays.

On the stand, Ciambelli 7 stated that he was fifteen feet from the gunman at the time of the shooting. Ciambelli recalled selecting from a photographic array one or two pictures of "men that I [had] seen on the corner that night," but asserted that, at the time, he did not know what the gunman looked like. Ciambelli explicitly disclaimed having made a positive identification of the gunman. The prosecutor presented Ciambelli with a stack of photographs and asked Ciambelli whether the photographs resembled those in the array he had looked through. Ciambelli stated he had no memory of the prior array.

O'Connor said he was in the doorway of the bar when the shooting took place, and that he saw the gunman. He also observed a second man who walked away with the gunman. O'Connor recalled going to the police station and selecting from a photographic array "a couple of different pictures" of "what I thought was the shooter." Asked whether he had selected a photograph of the gunman's companion, O'Connor said, "No, I don't think so." O'Connor stated that, disobeying a police officer's instructions, he had flipped over one of the photographs he selected and observed the name Dennis Daye on the back. He did not recall whether he saw the name before or after selecting the photograph, but said he picked the photograph not because of the name but "because I thought ... that was the person [who shot the victim]." O'Connor was not asked at trial to identify the photographs he had chosen from the array. He said he did not see the gunman in the court room.

After Ciambelli and O'Connor had been dismissed as witnesses, the prosecution called a police officer, who stated he was present when Ciambelli and O'Connor looked through the photographic array. Over the defendant's objection, the officer said that Ciambelli had positively identified a photograph of the gunman and a photograph of the gunman's companion. On the stand, the officer identified the photographs chosen by Ciambelli and stated that the photograph of the gunman was a picture of the defendant, whereas the companion's photograph was that of the codefendant. The officer said that O'Connor separately had selected the same photographs and had likewise positively identified the defendant as the gunman and the codefendant as the companion. The officer stated that fifteen of the twenty-five photographs in the array had names on the backs, but that the defendant's picture did not. The photographs which, according to the officer, the witnesses selected were introduced in evidence. The judge instructed the jury that the officer's testimony concerning Ciambelli's and O'Connor's identifications could be considered as evidence of the defendant's guilt. The defendant's claim is that the police officer's testimony regarding Ciambelli's and O'Connor's photographic identifications should not have been admitted as probative evidence and should have been limited by the judge to impeachment. We agree.

We have permitted the introduction with limiting instructions, if requested, of the testimony of a person who observed an extrajudicial identification to impeach the testimony of a witness who denies making an identification. Commonwealth v. Swenson, 368 Mass. 268, 274, 331 N.E.2d 893 (1975). We have held such evidence admissible to corroborate a witness's testimony that he or she made an extrajudicial identification. Commonwealth v. Repoza, 382 Mass. 119, 130, 414 N.E.2d 591 (1980). 8 Where a witness does not identify a defendant at trial, but acknowledges making an extrajudicial identification of the defendant, we have upheld the use of that evidence as probative of the identification. Commonwealth v. Fitzgerald, 376 Mass. 402, 409, 381 N.E.2d 123 (1978). The question now presented is whether testimony by a person other than the identifying witness concerning an extrajudicial identification is admissible for its probative worth when the identifying witness does not acknowledge the identification or does not explicitly state that he identified the defendant.

Prior identifications are admissible as probative evidence notwithstanding their hearsay attributes because of the superior probative worth of an identification made closer in time to the events in question. Commonwealth v. Weichell, 390 Mass. 62, 71, 453 N.E.2d 1038 (1983); id. at 87, 453 N.E.2d 1038 (Liacos, J., dissenting). Where, however, the extrajudicial identification is established not by the identifying witness but by a person who observed the identification, we believe that probative worth is outweighed by "the hazard of error or falsity in the reporting." McCormick, The Turncoat Witness: Previous Statements as Substantive Evidence, 25 Tex.L.Rev. 573, 588 (1947). Where there is a dispute not only as to the accuracy of a pretrial identification, but also as to whether the identification was in fact made, "the evidential value of the prior identification is almost completely dissipated." Commonwealth v. Swenson, 368 Mass. 268, 273 n. 3, 331 N.E.2d 893 (1975). Thus, a police officer's attribution to a witness of a positive identification denied by the witness at trial is not admissible to prove the identification. Its effect is limited to impeachment. See Commonwealth v. Furtick, 386 Mass. 477, 481 n. 2, 436 N.E.2d 396 (1982); Commonwealth v. Swenson, supra. See also Commonwealth v. Amado, 387 Mass. 179, 186, 439 N.E.2d 257 (1982). 9 The judge therefore erred in permitting the police officer's testimony to be considered by the jury as probative evidence that Ciambelli identified the defendant as the gunman.

We reach a similar conclusion with regard to the officer's statement as to O'Connor's identification. In contrast to Ciambelli, O'Connor admitted identifying the gunman from the photographic array. However, whereas O'Connor's testimony suggested that he selected two "different" pictures from the array as representing the gunman, the officer stated that O'Connor positively identified one photograph of the gunman and one of...

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