Commonwealth v. Adams1

• Decision Date: 28 January 2011
• Docket Number: SJC–10580.
• Parties: COMMONWEALTHv.Jovon ADAMS.1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 766

941 N.E.2d 1127

COMMONWEALTH

v.Jovon ADAMS.1

SJC–10580.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 2010.Decided Jan. 28, 2011.

John H. Cunha Jr. (Charles Allan Hope with him), Boston, for the defendant.Elisabeth Kosterlitz, Assistant District Attorney, for the Commonwealth.Present: IRELAND, SPINA, BOTSFORD, & GANTS, JJ.SPINA, J.

The defendant was convicted of deliberately premeditated murder, armed assault with intent to murder, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and carrying a firearm without a license, subsequent offense (two indictments). The charges involve two incidents that occurred on two consecutive days against three victims. On appeal the defendant asserts error in the admission substantively of two pretrial statements by his younger brother, Josiah, who stated that the defendant, armed with a gun, was at the scene of the shooting in which one victim was murdered and a second was wounded. The statements were admitted after Josiah testified at trial that the defendant was not present at the shooting. The defendant also claims error in the judge's refusal to give his requested instruction on defense of another as to the indictment charging assault by means of a dangerous weapon on the previous day. We affirm the convictions and decline to reduce the degree of guilt on the murder conviction or order a new trial pursuant to G.L. c. 278, § 33E.

1. Facts. The jury could have found the following facts. On the afternoon of May 14, 2007, two groups totaling about fifty people had gathered at the Franklin Field housing development in the Dorchester section of Boston. An argument broke out between the groups. The argument escalated into a fight between two women. Christina Mills, the defendant's sister, intervened in the fight, but was restrained by Takeyda Allen. The defendant thereupon became involved. He pointed a gun at Allen and directed her to leave his sister alone.² Shortly thereafter, the fight broke up and the crowd dispersed.

That evening, in a telephone conversation, Allen's brother challenged the defendant to a fight.

The next day, May 15, the groups met again in the same area to resume fighting. Several scuffles and arguments broke out. The defendant's sister was there. At one point she telephoned someone, and was heard saying, “They're up here.” At approximately the same time, the defendant, who was nearby at his mother's apartment, was heard saying during a heated telephone conversation, “I don't give a [expletive]. I'll do it in broad daylight.” Shortly thereafter, the defendant and Taquise Johnson (his codefendant, who was tried separately) left the apartment.

About ten minutes after the defendant and Johnson left the apartment, Cordelro Andrade, who had been involved in one of the fights, left the area with Takeyda Allen's brother. As they were walking, two men, both of whom had guns, emerged from an automobile and started shooting. One wore a white “hoodie” sweatshirt and jeans. He was African–American, slender, and about five feet, seven inches, or five feet, eight inches, tall. The other was lighter skinned, and wore a dark “hoodie” and dark jeans.

One projectile went through Andrade's right forearm. A second projectile entered his left lower back and perforated the aorta, stomach, left kidney, and right lung, causing massive blood loss and death. A bystander, who had been walking with her son and her niece, was shot in the left leg.

Soon after the shooting the defendant and Johnson returned to the apartment of the defendant's mother. The defendant had removed his shirt and was breathing heavily. He ran into the bathroom and vomited. Johnson ran into the rear bedroom, where he was joined by the defendant. The defendant was heard saying, “When I hit him, he made a painful sound.” The defendant put on a shirt, then he and Johnson left the apartment.

In the early evening of May 15 the defendant told his brother Robert that he left the guns at their mother's apartment. They agreed that Robert would move them. The defendant did not want to return to his mother's apartment, so Johnson went with Robert to show him where they hid the guns. Robert made arrangements to put the guns in a locked storage area in the basement. Police arrived as Robert was in the process of moving the guns, and he was arrested. Police recovered three guns: a .357 Smith and Wesson revolver, a .357 Ruger revolver, and a .380 caliber Cobra semiautomatic pistol.

A projectile recovered from Andrade's body was determined to have been fired from the .357 Smith and Wesson revolver. The projectile recovered from the bystander was determined to have been fired from the .380 caliber pistol, as were two shell casings recovered from the scene of the shooting.

The defendant told an inmate at the jail where he was awaiting trial that he had a murder case pending, and that he had involved his brother in the case because he needed to dispose of the guns. He said the police caught his brother with the guns. The defendant boasted that no one could identify him.

At the trial in October, 2008, the defendant's twelve year old brother, Josiah, identified Johnson as one of two men whom he saw get out of a car as Josiah was hailing Andrade. He testified that Johnson approached Andrade with a gun and shot at him several times. Josiah was unable at trial to identify the second man, but he said it was not one of his brothers, including the defendant. At the conclusion of Josiah's direct examination the prosecutor asked if he was being truthful when he denied seeing the defendant at the scene. Josiah answered that he was. The prosecutor then asked Josiah if he was also being truthful when he spoke to police during his interviews on May 23, 2007, and June 15, 2007. Josiah said he was not being truthful during those interviews because he was afraid.

Josiah had been interviewed by police on three occasions before trial. During the first interview, May 18, 2007, the day after the shooting, he told police that Johnson was the only shooter, and he wielded two guns.

In the second interview, on May 23, 2007, Josiah told police he saw both the defendant and Johnson shooting at Andrade. Excerpts of the audio recording of that interview were played to the jury and, over the defendant's objection, the judge instructed the jury they could consider that statement as substantive evidence.

In the third interview, which occurred on June 15, 2007, Josiah told police that both Johnson and the defendant were shooting at his friend, Andrade. A video recording of that interview was played for the jury, and the judge instructed the jury, over objection, that they could consider that statement as substantive evidence.³

2. Pretrial statements of “identification.” The defendant argues that Josiah's pretrial statements identifying him as one of the shooters was inadmissible hearsay that does not fall within Proposed Mass. R. Evid. 801(d)(1)(C), the rule we adopted in Commonwealth v. Cong Duc Le, 444 Mass. 431, 435–442, 828 N.E.2d 501 (2005).⁴ The defendant contends that rule 801(d)(1)(C) applies only to identifications made from a photographic array, a showup, or other identification procedure, including a lineup, and does not include simply the articulation of a name based on the witness's familiarity with the person identified.

In Commonwealth v. Raedy, 68 Mass.App.Ct. 440, 446–450, 862 N.E.2d 456 (2007), the Appeals Court considered precisely this question and concluded that rule 801(d)(1)(C) contains no such limitation. Id. at 448–449, 862 N.E.2d 456. The court held that extrajudicial statements of identification that are not part of an identification procedure are admissible for substantive purposes, even in the absence of any in-court identification, where they have been made in “nonsuggestive” circumstances ⁵ and closer in time to the offense, “when there is less chance that the identification has been influenced by fading memories or any sort of outside pressure on the witness.” Id. at 449, 862 N.E.2d 456. The Appeals Court reasoned that requiring the police to observe a declarant go through the motions of pointing to a picture of someone he knows well in order to qualify subsequent police testimony as to the declarant's pretrial identification, which the defendant's argument would mandate, would add nothing to the reliability of that identification, elevate form over substance, and restrain the police in a way that is not constitutionally required. Id. at 450, 862 N.E.2d 456. We agree with the analysis of the Appeals Court.

Traditional identification procedures such as photographic arrays, showups, and lineups were designed primarily for witnesses who had never before seen a particular individual, or who may have seen the individual previously but on a limited basis. They are not normally used, and are not required, for witnesses who know an individual well. It is illogical to allow for substantive purposes a pretrial identification that consists of a witness's selection of a photograph of someone he does not know, or the witness's selection of someone he does not know from a lineup, but to exclude a more reliable pretrial statement of identification by a witness who knows the individual well. Here, it is undisputed that Josiah knew the defendant well. As with questions surrounding differences between identifications made at pretrial identification procedures and a witness's testimony at trial, differences between a witness's pretrial identification statement and his trial testimony should be resolved by the jury. Commonwealth v. Cong Duc Le, supra at 441, 828 N.E.2d 501. Moreover, considerations of witness pressure or intimidation, noted by the Appeals Court in the Raedy case and cited by us as a basis for adopting rule 801(d)(1)(C), see Commonwealth v. Cong Duc Le, supra, have greater potential to affect trial testimony where the witness...