Com. v. Muse

• Decision Date: 10 November 1993
• Docket Number: No. 92-P-1568,92-P-1568
• Citation: Com. v. Muse, 622 N.E.2d 640, 35 Mass.App.Ct. 466 (Mass. App. 1993)
• Parties: COMMONWEALTH v. Elijah MUSE.
• Court: Appeals Court of Massachusetts

Page 640

622 N.E.2d 640

35 Mass.App.Ct. 466

COMMONWEALTH v. Elijah MUSE.

No. 92-P-1568.

Appeals Court of Massachusetts Suffolk.

Argued Sept. 15, 1993.

Decided Nov. 10, 1993.

Teresa Walsh Habib, Arlington, for defendant.

John P. Zanini, Asst. Dist. Atty., for the Com.

Before BROWN, FINE and LAURENCE, JJ.

FINE, Justice.

After a jury trial in the Superior Court, the defendant was convicted of assault with intent to murder, assault by means of a dangerous weapon, and unlawful possession of a handgun with a barrel less than sixteen inches in length. The Commonwealth concedes that the evidence was insufficient to warrant conviction on the charge of unlawful possession of a handgun. As to the remaining charges, the defendant's principal contention on appeal is that the trial judge erred in admitting for its probative worth a police officer's testimony that the day following the shooting incident a witness to the shooting made a positive photographic identification of the defendant as the gunman. We conclude that there was error but that, in all the circumstances, it was harmless.

The charges arose out of an affray involving numerous young people who were leaving a party in the early morning hours on Athelwold Street in Dorchester. In the course of the affray, John Haney, who happened upon the scene and became involved in a fight, was seriously wounded by gunfire. The main issue at trial was the identity of the gunman. We summarize the evidence on that point.

Haney heard shots but did not describe the gunman or make any identification. Two eyewitnesses, Tina Smith and Precious Nails, had known the defendant for several years. They testified that they saw the defendant arrive at the scene on a bicycle, ask, "who out here on the street say they want to fight," and then shoot in Haney's direction from the field. At the police station the day following the incident, Smith and Nails each selected the defendant's photograph from an array as the gunman in the field. Each of them also made an in-court identification of the defendant as the gunman.

Elvis Benjamin had come to Haney's assistance in the fight and had received a stab wound. He testified that he was present at the police station the next day when Smith and Nails were being shown photographs and that he selected a photograph of the person he was certain was the gunman in the field. At trial, Benjamin was neither shown any photograph nor asked if he could make an in-court identification, and he was not asked whose photograph he had selected. Detective George Foley later took the stand and was asked whose photograph Benjamin had selected. Defense counsel objected on grounds of hearsay and violation of the defendant's right of confrontation. The judge overruled the objection, and Detective Foley testified, based upon his familiarity with the defendant, that the photograph Benjamin had selected depicted the defendant. He also testified that it was the same photograph that Smith and Nails had selected.

On appeal, the defendant contends that Detective Foley should not have been allowed to testify that Benjamin had made a prior identification of the defendant as the gunman.

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), extrajudicial identifications have been accepted as substantive evidence, notwithstanding their hearsay attributes, even when the declarant cannot or does not identify the defendant at trial. See Commonwealth v. Torres, 367 Mass. 737, 738-739, 327 N.E.2d 871 (1975); Commonwealth v. Fitzgerald, 376 Mass. 402, 408, 381 N.E.2d 123 (1978); Commonwealth v. Vitello, 376 Mass. 426, 458-459, 381 N.E.2d 582 (1978); Commonwealth v. Cappellano, 17 Mass.App.Ct. 272, 276, 457 N.E.2d 1121 (1983), S.C., 392 Mass. 676, 467 N.E.2d 843 (1984). On occasion, when a witness acknowledges at trial that he made a prior identification but cannot or will not identify the defendant at trial, testimony about the witness's identification from a person who observed it has been allowed. Commonwealth v. Fitzgerald, 376 Mass. at 409, 381 N.E.2d 123. Commonwealth v. Vitello, 376 Mass. at 459-460, 381 N.E.2d 582. Commonwealth v. Cappellano, 17 Mass.App.Ct. at 276, 457 N.E.2d 1121. For such evidence to be admissible, it must be reliable, and its use must not deprive the defendant of his right of confrontation. Generally, if both the identifying witness and the person who observed the identification are available at trial for cross-examination, the defendant's right of confrontation will be deemed to have been satisfied. In this case, Benjamin acknowledged making an unqualified earlier identification of the gunman, and both he and Detective Foley, who testified that the photo selected was of the defendant, were available for cross-examination.

The defendant's contention that the judge erred in allowing Detective Foley's testimony concerning Benjamin's selection of the defendant's photograph is essentially twofold: he claims that the testimony was insufficiently reliable to justify its allowance; and he claims that, because the prosecution never asked Benjamin whether he recognized the photo about which Detective Foley testified, the defendant was deprived of the opportunity, essential to his right of confrontation, to conduct effective cross-examination with respect to that identification.

In Commonwealth v. Daye, 393 Mass. 55, 62, 469 N.E.2d 483 (1984), the court held that testimony from a police officer corroborating a witness's out-of-court photographic identification should not have been admitted because there was a material discrepancy between the officer's and the witness's descriptions of the identification and because it was only the officer who established that the photograph was one of the defendant. The probative worth of the officer's testimony was viewed in that situation as being "outweighed by 'the hazard of error or falsity in the reporting' " (citation omitted). Id. at 61, 469 N.E.2d 483. See Commonwealth v. Seminara, 20 Mass.App.Ct. 789, 796-797, 483 N.E.2d 92 (1985); Commonwealth v. Bassett, 21 Mass.App.Ct. 713, 719, 490 N.E.2d 459 (1986). Compare Commonwealth v. Morgan, 30 Mass.App.Ct. 685, 690-691, 573 N.E.2d 989 (1991). In this case, there was no inconsistency between the description of the identification given by Benjamin and that given by Detective Foley. Compare Commonwealth v. Daye, 393 Mass. at 60 n. 8, 469 N.E.2d 483. Contrast Commonwealth v. Amado, 387 Mass. 179, 187, 439 N.E.2d 257 (1982). It was only Detective Foley's testimony, however, that established that Benjamin had selected the defendant's photograph. Nevertheless, in the circumstances of the present case, we do not think there was such a significant "hazard of error or falsity in the reporting" that Detective Foley's testimony was unreliable.

Smith and Nails had known the defendant for years. Their testimony that the photographs they had selected were of the defendant was virtually unimpeachable. Detective Foley testified that all three had chosen the same photograph at the police station the day after the incident. Thus, there was a solid basis, even apart from Detective Foley's opinion that the person depicted in the photograph appeared to him to be the defendant, for his testimony that Benjamin had selected a photograph of the defendant. Certainly, in light of the purpose of the rule recognizing the hearsay exception for prior identification evidence, the mere fact that at the time of trial the eyewitness might no longer remember what the gunman looked like, and therefore might no longer be able to recognize a photo he selected earlier, should not bar evidence of the prior identification. There can be little doubt, based on all the testimony, that Detective Foley testified reliably with respect to the photograph selected by Benjamin. ¹

Commonwealth v. Daye, 393 Mass. at 62-63, 469 N.E.2d 483, also held, however, that the Commonwealth's failure to ask the identifying witness at trial whether he was able at that time to recognize the photograph he had earlier selected precluded the police officer's testimony that the identifying witness had selected the defendant's photograph. "The Commonwealth cannot improve its position by declining to ask the identifying witness to select at trial the...