Com. v. Weaver

• Decision Date: 03 July 1985
• Citation: 395 Mass. 307,479 N.E.2d 682
• Parties: COMMONWEALTH v. Tyrone WEAVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 682

479 N.E.2d 682

395 Mass. 307

COMMONWEALTH v. Tyrone WEAVER.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 6, 1985.

Decided July 3, 1985.

Robert L. Sheketoff, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant and his brother, Darrell Weaver, were tried before a jury. The defendant was convicted of murder in the first degree, and of unlawfully carrying a firearm, and was sentenced to life imprisonment for the murder and to a term of four to five years for unlawfully carrying the firearm, to be served concurrently. Pursuant to G.L. c. 278, § 33E (1984 ed.), he appeals to this court. ¹ He argues that the trial judge erred by (1) allowing testimony concerning a pretrial photographic identification of the defendant; (2) instructing the jury that they could consider a prior inconsistent statement of a witness, not made under oath, solely for impeachment purposes; (3) giving an inadequate jury instruction on manslaughter; and (4) refusing to instruct the jury that, in assessing a witness's credibility, the jury could draw a negative inference from the witness's failure to promptly inform the authorities of his knowledge of the events. Although the defendant claims a denial of his Federal and State constitutional rights as a result of the asserted errors, his arguments are largely, although not entirely, based on common law principles. We affirm the judgments.

The jury could have found the following facts. Late in the evening of August 3, 1983, an argument broke out near the intersection of Blue Hill Avenue and Castlegate Road in the Roxbury section of Boston. The argument pitted the victim, Michael Owens, and a few friends against the defendant, a few of his friends, and his brother, Darrell Weaver. Words led to blows. The defendant and others punched Owens. Owens left the scene of the argument and went to a nearby building where his cousin lived. Owens remained with his cousin for ten to fifteen minutes, during which time several Boston police officers dispersed the crowd that had gathered in the street. After the police officers left, everyone returned to the street, and the defendant and Owens resumed their argument. No punches were thrown and the defendant left the scene. About ten minutes later, he returned. After saying, "Fuck all this talking," the defendant pulled a gun from a jacket that he had draped over his arm and hit Owens on the mouth with it. Owens staggered backwards into the doorway of a nearby building, and, as he began to climb the building's stairs to escape from the defendant, the defendant aimed the gun and shot Owens in the back.

1. Testimony Concerning the Photographic Identification. Marquetta Owens, the victim's sister, testified that she saw the shooting, and she made an in-court identification of the defendant as the person who shot her brother. Over the defendant's objections, she testified that while at the Boston City Hospital after the shooting, detectives showed her a series of photographs from which she selected two: one of the defendant and one of Darrell Weaver. Also over the defendant's objection, Detective James Curran gave similar testimony about the photographic identification at the hospital. Marquetta Owens also testified that she had identified the defendant at his probable cause hearing approximately three to four weeks after the shooting, and that, before the night of the shooting, she had seen Darrell Weaver many times but she had never seen the defendant.

The defendant argues that the judge violated his constitutional rights to a fair trial, to the presumption of innocence, and to equal protection of the laws, by allowing the testimony about the photographic identification at the hospital. He argues that identification was not a live issue at trial, and that, therefore, there was no justification for admitting evidence showing that the police had a photograph of the defendant although they had not yet arrested him for the crime under investigation. The defendant contends that that evidence served no valid probative purpose, but that it greatly prejudiced the defendant by informing the jury that the defendant had had prior trouble with the police.

The defendant's argument might be sound if, as he argues, identification of the assailant was not a live issue at trial. But the assailant's identity was a live issue at trial. Compare Commonwealth v. Barrett, 386 Mass. 649, 651-654, 436 N.E.2d 1219 (1982), relied on by the defendant, in which, because the victim knew his assailant before the incident occurred, identification was not an issue at trial. In this case, in response to the judge's inquiry whether defense counsel wanted the judge to instruct the jury on identification, counsel said, "I'm not going to concede and stipulate that the Commonwealth doesn't have to prove the identity of the perpetrator of the incident. They have to convince the jury beyond a reasonable doubt.... I'm talking about the basic element of the offense. The Commonwealth must prove that it was Tyrone Weaver that did the shooting." As defense counsel pointed out to the jury at great length in her cross-examination of Marquetta Owens, in the nine months between the shooting and the trial, Marquetta spoke about the incident on numerous occasions with other witnesses with Detective Curran, and with the prosecutor. Furthermore, Marquetta was present in court when other witnesses testified at the defendant's probable cause hearing. Those circumstances would support a jury argument by the defendant that Marquetta Owens's in-court identification was the product of suggestion occurring after the shooting. Therefore, the Commonwealth was entitled to bolster Marquetta Owens's credibility by introducing evidence of her photographic identification of the defendant and his brother promptly after the shooting. "An identification made in court frequently has little testimonial value as compared with a prior identification...." Commonwealth v. Locke, 335 Mass. 106, 112, 138 N.E.2d 359 (1956). Commonwealth v. Nassar, 351 Mass. 37, 42, 218 N.E.2d 72 (1966).

2. Prior Inconsistent Statement. On direct examination, Marquetta Owens testified that, before the defendant shot her brother, the defendant had said, "Fuck all this talking." On cross-examination, Marquetta conceded that she had told the police that, before the shooting, Darrell Weaver had told the defendant to stop the talking. She insisted, however, that, despite what she had told the police, the defendant, not Darrell Weaver, had spoken about stopping the talking.

Later in the trial, on cross-examination by defense counsel, Detective Curran confirmed that, at the hospital after the shooting, Marquetta Owens had told him that Darrell Weaver, not the defendant, had said, "Let's stop the talking." At the request of Darrell Weaver's counsel, and over the defendant's objection, the judge instructed the jury just before that testimony by Detective Curran that they could consider Marquetta's prior inconsistent statement to Curran solely for their "evaluation of [Marquetta's] present testimony in court." During his instructions to the jury before their deliberations, the judge repeated that the jury could consider the prior statement solely for impeachment purposes, not for the truth of the matter asserted.

The defendant argues that, by giving that instruction, the judge "severely prejudiced the defendant's case" and "prevented [the defendant] from presenting a full defense in violation of his Sixth Amendment rights and his rights under art. 12 [of...