Commonwealth v. Cong Duc Le

• Decision Date: 03 January 2005
• Citation: 444 Mass. 431,828 NE 2d 501
• Parties: COMMONWEALTH vs. CONG DUC LE (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

444 Mass. 431

828 NE 2d 501

COMMONWEALTH vs. CONG DUC LE (and a companion case¹).

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 2005.

June 2, 2005.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Christopher Pohl, Assistant District Attorney, for the Commonwealth. Susan F. Damiano for Tung Ouoc Huynh.

Victor H. Ascolillo for Cong Duc Le.

SOSMAN, J.

The defendants, Cong Duc Le and Tung Ouoc Huynh, were convicted of assault and battery in the beating of Khanh Luong.² On appeal, they contend that the trial judge erroneously allowed a detective's testimony concerning a pretrial identification to be used as substantive evidence (and not merely as impeachment) when the identifying witness denied having made such an identification. See Commonwealth v. Daye, 393 Mass. 55, 60-63 (1984) (Daye). They also contend that the victim, Luong, should not have been allowed to make an in-court identification, as he had allegedly been exposed to suggestive identification procedures at earlier court proceedings. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed the convictions on the ground that the substantive use of the prior identification violated the limitations prescribed in Daye. Commonwealth v. Cong Duc Le, 61 Mass. App. Ct. 1105 (2004). We granted the Commonwealth's application for further appellate review. The Commonwealth asks that we modify the rule in Daye to allow substantive use of pretrial identification evidence, even if the witness testifies that he or she did not make such an identification, consistent with Federal decisions that have allowed substantive use of such identification evidence under Fed. R. Evid. 801 (d) (1) (C). This court has approved of the identically worded Proposed Mass. R. Evid. 801 (d) (1) (C), see Commonwealth v. Weichell, 390 Mass. 62, 71-72 (1983), cert. denied, 465 U.S. 1032 (1984), and Daye no longer comports with Federal jurisprudence applying that same rule. We agree with the Commonwealth that we should adopt the modern interpretation of the rule, and we therefore overrule that portion of Daye.³ We also find no error in admitting the in-court identification made by Luong. We therefore affirm the convictions. 1. Facts. On April 29, 2001, Khanh Luong and James Nguyen, along with other acquaintances, were at a nightclub in Boston. Luong and Nguyen left the club together at the 2 A.M. closing time, and were walking toward their vehicle. Many other patrons were also leaving the club at that time, and a large number of people were in the area just outside the club. Luong suddenly noticed that Nguyen was no longer beside him, and turned back to see Nguyen with two other men, the defendants. When Luong walked back to see what was going on, he heard Le complain of some prior insult ("Your boy punked me"), whereupon the defendants ordered both Nguyen and Luong to their knees. When they did not comply, Huynh punched Luong and Le struck Nguyen. Luong fell to the ground, and felt kicks and punches "coming from everywhere." Luong could not say how many people were striking him while he was on the ground, but had given statements to the police estimating that it was as many as ten persons. Luong heard someone say, "Grab his money," and felt a hand reach into his back pocket. Someone shouted that the police were coming, and the attack ceased. Luong left the area without waiting for the police. He went to a hospital later that morning, suffering significant injuries to his face and his left eye.

After being seen at the hospital, Luong went to the police to report the incident. A few days later, Detective Mario Modica interviewed Luong and Nguyen at the police station. Modica prepared an array of twelve photographs that contained a photograph of Huynh. Luong was the first to view the array. After viewing the array for a few minutes, Luong had not made any identification. He told Modica, "I can't be sure." Modica asked him to stop and to step outside. Modica observed that Luong's left eye was swollen shut and tearing up, and that he appeared to be having difficulty with that eye.⁴

Modica next showed the array to Nguyen. Modica testified that Nguyen picked out Huynh's photograph from the array, identifying Huynh as the one who had attacked Luong. Nguyen put his initials on Huynh's photograph.⁵ Modica then had Nguyen review a computerized display of ninety photographs meeting Nguyen's description of the second assailant. Nguyen selected the photograph of Le and, according to Modica, identified Le as the one who had struck him and knocked him to the ground.

At trial, Luong made an in-court identification of Huynh as the man who had attacked him and an in-court identification of Le as the man who had attacked Nguyen at the same time.⁶ Luong testified that he had known Huynh, and that he had seen him in various social settings approximately twenty times prior to the attack. He also knew Le, having been introduced to him by a friend they had in common. He had seen Le some four or five times prior to the incident.

Nguyen testified that as he and Luong were leaving the club, he heard someone call his name. He turned around, saw the defendants, and began speaking with Le.⁷ Luong joined them. Nguyen's attention was drawn to his left, where he saw "a big fight." Luong, who had been right beside him, was gone, but Nguyen did not know where. Nguyen was then struck from behind and fell to the ground. He claimed that he did not see who hit him, nor did he see who had beaten Luong. He denied that either defendant had ordered anyone to get to their knees, and had not seen either defendant strike Luong. He met up with Luong, and saw his injuries, after the attack ended. Nguyen acknowledged that he had gone to the police station with Luong, and had understood at the time that their reason for going to the station was because Luong wanted to press charges against "whoever beat him up." He agreed that he had selected Huynh's photograph from the array and Le's photograph from the computerized display, but claimed that he had only identified them as people he had seen outside the club that night. He denied that he had identified them as the actual assailants.

Huynh testified that he had been at the club on the night of the incident, and he remembered seeing both Nguyen and Luong as they were leaving. He recalled that a fight broke out in the middle of the street, but he could not see who was being attacked. The fight ended after approximately two minutes, and the participants fled. He denied that he had had any involvement, and denied that he had struck Luong.

2. Discussion. a. Evidence of prior identification. Counsel for both defendants objected to Modica's testimony concerning Nguyen's alleged identification of the defendants as the perpetrators, and later requested that the judge give an instruction limiting that testimony to impeachment of Nguyen by means of a prior inconsistent statement. The judge declined to give any limiting instruction. On appeal, the defendants contend that allowing the prior identification to be introduced as substantive evidence violated the restrictions placed on identification evidence in Daye. The Commonwealth argues that the facts of this case are distinguishable from Daye, or, in the alternative, that we should modify Daye to comport with modern precedent interpreting Fed. R. Evid. 801 (d) (1) (C).

In Daye, a police officer testified that two eyewitnesses to a shooting had viewed an array, selected the defendant's photograph, and identified it as a photograph of the gunman. Id. at 57. However, one of the witnesses testified at trial that he had selected one or two photographs of persons who had been at the scene, that he did not know what the gunman looked like, and that he had not identified any photograph as that of the gunman. Id. at 58. The other witness testified that he had selected a few photographs of someone he "thought was the shooter," but he was not asked to identify the photographs he had chosen, and testified that the gunman was not in the court room. Id. at 59.

The court recognized that evidence of a prior identification by a witness was admissible as probative evidence of identification in various circumstances, including circumstances "[w]here a witness does not identify a defendant at trial, but acknowledges making an extrajudicial identification of the defendant . . . ." Id. at 60, citing Commonwealth v. Fitzgerald, 376 Mass. 402, 409 (1978). The issue presented, however, was "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." Daye, supra. On that issue, the court ruled that the officer's testimony concerning the prior identifications of the defendant could be used only for impeachment, not as substantive evidence of identification. Id. at 61. "[T]estimony by a nonidentifying witness that differs in material respects from the testimony of the identifying witness concerning a particular extrajudicial identification . . . cannot be considered corroborative or probative and remains within the hearsay proscription" (emphasis added). Id. at 60 n.8.

The Commonwealth's attempt to distinguish the present case from Daye is unavailing. The fact that Nguyen testified that he selected two photographs does not qualify as "acknowledg[ment]" of the identification described by Modica — Nguyen testified that he identified those photographs as people who were merely present, and denied that he identified them as the perpetrators. Nguyen is, in all respects, the equivalent of the witness in Daye who acknowledged selecting one or two photographs of persons he had seen at the scene, but denied identifying any of the photographs as that of the actual shooter....