Com. v. Fitzgerald

Citation376 Mass. 402,381 N.E.2d 123
PartiesCOMMONWEALTH v. Robert FITZGERALD (and a companion case 1 ).
Decision Date20 September 1978
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Margaret Hayman, Boston, for Joseph Chisholm.

Judith H. Mizner, Boston, for Robert Fitzgerald.

John A. Kiernan, Asst. Dist. Atty., for the Com.


ABRAMS, Justice.

After a jury trial, the defendants, Robert Fitzgerald (Fitzgerald) and Joseph Chisholm (Chisholm), were convicted on indictments charging armed assault in a dwelling house with intent to commit a felony. G.L. c. 265, § 18A. They appeal their convictions pursuant to G.L. c. 278, §§ 33A-33G. Both defendants challenge the denial of their motions for directed verdicts on the ground that there was insufficient evidence to establish identity, and both contend that the prosecutor's examination of witnesses and his closing argument to the jury were improper and sufficiently prejudicial to require a reversal of the convictions. In addition, Fitzgerald contends that the trial judge erred in instructing the jury on the elements of the offense. We conclude that there was no reversible error and affirm the convictions.

We summarize the testimony at trial which is not now at issue. On May 5, 1976, Helen McInnis (McInnis) planned to meet friends for an evening out and arranged for Doris Skeffington (Doris) and Kelly Barrett (Kelly), both twelve years old, to stay with her two-year old son, Joseph. Kelly fell asleep on a couch near a window approximately ten minutes before midnight. Doris watched a late movie and then retired to Joseph's bedroom.

McInnis returned to her apartment at approximately 5:30 A.M. on May 6. She asked her friends to wait in the car until she was safely inside and arranged to signal them that she was all right by pulling the living room shade up and down. As she was signaling from inside the apartment, she leaned on the couch by the window. When she stood up, she realized that her hand was covered with blood.

She then ran to her son's bedroom where she found Doris and her son sleeping on the bed. There was blood all over the sheets. She ran back to the living room where she saw that the apartment was "a mess." She then saw Kelly lying on a loveseat beneath a bloodstained sheet. Kelly's arms were badly bruised, and she was covered with blood.

Kelly was taken to the hospital. She had sustained the type of skull fracture caused by a direct blow to the head. She had also suffered a fracture involving the bones of the left ear, and there was a laceration on the left side of her head and lacerations on her left arm.

An examination of the McInnis apartment revealed that the screen had been removed from one of the windows. Investigating officers also found a clip for an automatic pistol under the cushions of the couch by the window and a single loose bullet on this couch. There was human blood on the base of the clip on the bullet.

1. Identity.

At the close of the Commonwealth's case both defendants moved for a directed verdict of not guilty on the ground that there was insufficient evidence that they committed the armed assault. These motions were denied, and the defendants saved exceptions. See Commonwealth v. Kelley, --- Mass. ---, --- - --- A, 346 N.E.2d 368 (1976).

The blow to Kelly's head caused amnesia. She could not tell the police anything about what happened between the time she went to sleep and the time she was awakened by McInnis. At trial Kelly had not recovered her memory; she still could not recall anything concerning the assault. The primary witnesses on the issue of identification were Doris, who, because of Kelly's amnesia, was the only eyewitness to the crime and whose testimony is the primary focus of dispute, and Joanne Desmond (Desmond), who testified that she heard Fitzgerald state during a fight that "I got your girlfriend's sister (Kelly) and now I am going to get your girlfriend and her friends." 2

Doris was called as a witness for the Commonwealth. She testified that sometime after 2 A.M. on May 6, she heard a noise and looked out into the hall and living room from the bedroom. She saw three men coming through the window. One of them hit Kelly on the head; the men then played with the baby's toys and after about fifteen minutes left through the kitchen. Doris then went out into the living room and asked Kelly if she was all right. Kelly said she was, and Doris went back to sleep until she was awakened by McInnis.

On the issue of identification of the men, however, Doris's testimony during the trial was contradictory and inconsistent. She was highly uncooperative and was declared a hostile witness.

Doris testified that she knew both defendants prior to May 5. She stated that a sister of Fitzgerald was a friend of hers. She also testified that, although she did not know Chisholm's name prior to the assault, she knew who he was and had seen him around her neighborhood. At numerous points throughout her testimony, Doris stated that Fitzgerald and Chisholm were not the men who were in the McInnis apartment on the night of the assault. However, she also identified them as the attackers at other points in her testimony. When asked on direct examination whom she had seen coming through the window, Doris replied, "Joseph Chisholm." And, in response to a question whether Chisholm was one of the men whom Doris recognized in the apartment, Doris replied, "Yes." When the prosecutor asked her which of the men picked up a particular toy belonging to the baby, she answered, "Bobby," which was Fitzgerald's nickname and which was a name by which Doris had referred to him at trial. Finally, when asked whether any of the men who had been in the apartment were present in the court room, Doris replied, "Him and him," and apparently pointed to the defendants.

Evidence that Doris had identified photographs of Chisholm and Fitzgerald as those of the men who were in the apartment was also introduced. 3 After Kelly was taken to the hospital on the morning of May 6, Doris went to the police station to examine three books of photographs. She testified that at this time she picked out a picture of Chisholm as being one of the men in the apartment. Doris then returned home. Later that same day she returned to the police station to look through the books of photographs again. Doris testified that at this time she picked out a photograph of Fitzgerald.

Finally, the prosecutor introduced prior statements by Doris in which she stated that Fitzgerald and Chisholm were in the apartment on the night of the assault on Kelly and Doris's testimony before the grand jury in which she admitted that she picked out photographs of Fitzgerald and Chisholm.

The defendants first contend that Doris's photographic identifications of the defendants, as well as her extrajudicial statements, were merely prior inconsistent statements and as such did not constitute substantive evidence which could be considered in determining whether a motion for a directed verdict should be granted. See Commonwealth v. Campbell, 352 Mass. 387, 395, 226 N.E.2d 211 (1967). They maintain that the other identification testimony presented during the trial is insufficient to warrant a finding that they committed the assault on Kelly and thus that it was error to deny their motions for directed verdicts.

This court, however, has previously concluded that extrajudicial identifications are not always limited to the purpose of impeachment; rather, even when a witness is unable or unwilling to make an in-court identification, out-of-court identifications may be admitted as substantive evidence of guilt as long as the defendant's due process and confrontation rights are satisfied. Commonwealth v. Swenson, 368 Mass. 268, 272 n. 3, 331 N.E.2d 893 (1975). Commonwealth v. Torres, 367 Mass. 737, 738-739, 327 N.E.2d 871 (1975). See Commonwealth v. Howard, 4 Mass.App. --- B, 350 N.E.2d 721 (1976); Commonwealth v. Day, 4 Mass.App. --- C, 351 N.E.2d 547 (1976). See also Commonwealth v. McLellan, 351 Mass. 335, 220 N.E.2d 819 (1966); Commonwealth v. Nassar, 351 Mass. 37, 42, 218 N.E.2d 72 (1966); Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d 359 (1956). See generally Fed.R.Evid. 801(d)(1)(C); 4 J. Weinstein & M. Berger, Evidence par. 801(d)(1)(C)(01) (1977). As such substantive evidence, extrajudicial identifications may be considered in conjunction with other substantive evidence in evaluating the disposition to be made on a motion for a directed verdict. See Commonwealth v. Swenson, supra 368 Mass. at 272 n. 3, 331 N.E.2d 893; Commonwealth v. Torres, Supra 367 Mass. at 738-739, 327 N.E.2d 871. 4

The defendants further contend, however, that since in this case the witness testified affirmatively during the trial that the defendants were not the perpetrators of the crime, admitting the prior identifications as substantive evidence violated the defendants' due process and confrontation rights. Although Doris testified that the defendants were not present in the apartment on the night of the assault, she did not deny that she had previously identified photographs of them, nor did she state that she could not recall identifying the photographs. Rather, she affirmed that she had picked out photographs of Chisholm and Fitzgerald. Doris could thus be cross-examined concerning her earlier identifications, and, in fact, she was vigorously and thoroughly cross-examined concerning all the circumstances surrounding the identifications. We thus conclude that the admission of the identifications as substantive evidence did not violate the defendants' right of confrontation. See Commonwealth v. Swenson, supra 368 Mass. at 272 n. 3, 331 N.E.2d 893; Commonwealth v. Torres, supra 367 Mass. at 738-739, 327 N.E.2d 871. See also California v. Green, 399 U.S. 149, 168-170, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (statute); Nelson v....

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