Commonwealth v. Weichell
Commonwealth v. Weichell
Opinion of the Court
The defendant was convicted by a jury on August 20, 1981, of murder in the first degree for the fatal shooting of Robert W. LaMonica. The shooting occurred shortly after midnight on May 31, 1980, outside LaMonica’s Braintree apartment. The defendant was sentenced to a term of life imprisonment and now appeals his conviction. G. L. c. 278, § 33E.
Weichell claims that the trial judge erred in (1) denying his motions in limine to exclude certain evidence relating to motive; (2) granting the Commonwealth’s motion in limine to exclude evidence which tended to show that third parties had a motive to commit the crime; (3) refusing to exclude a “mugshot” photograph of the defendant’s profile; (4) permitting the Commonwealth to introduce in evidence a composite drawing; (5) allowing the Commonwealth to introduce in evidence an enlarged copy of a photograph of the defendant taken by the Braintree police at the time of his arrest; and (6) excluding photographs of the scene of the crime and the testimony of the photographer who took them.
1. Evidence. We summarize the evidence presented to the jury.
a. Motive. On May 18, 1980, Thomas Barrett and the defendant approached Francis Shea on a street in South Boston. Barrett and Shea had words and began to fight. They wrestled for several minutes until Barrett locked Shea in a “choke hold.” Shea “blacked out” but regained consciousness soon after. The fight attracted much attention, and several of Shea’s friends, including the victim, arrived. He helped Shea to his feet.
A heated argument developed between Shea’s friends on one side and Barrett and the defendant on the other side. Shea told Barrett that he would kill him. The defendant then stepped up to Shea and told him that if Shea killed Barrett, he himself would kill Shea and that “they’ll never find [your] body.” With these words, the defendant and Barrett turned away and left. Shea, LaMonica, and other friends of Shea, Dennis King, and Chuckie Carr, retired to the house of Shea’s brother. Shea was later treated at a hospital for lacerations on the right side of his head.
During the remainder of that day, LaMonica uttered to others several threats relating to Barrett and the defendant. He told Shea that he wanted to retaliate and said, “They picked on the wrong people this time. We are going to kill him.” Dennis King heard him say that they should “go after them. They messed with the wrong people.” LaMonica began work late in the afternoon. He returned to his apartment an hour and one-half after finishing work; he was “upset” and he had been drinking. He told his paramour, Maureen A. Connolly, that “[m]e and my friends, we’re going to get him, and we’re going to kill him.” Connolly testified that LaMonica was referring to both Barrett and the defendant.
The next day Francis Shea saw the defendant and La-Monica arguing. He did not hear the words uttered, but testified that the defendant was “pointing his finger in Robert LaMonica’s face and stepping up and down the sidewalk.” A couple of days later, King, the Shea brothers, and Francis’s two sons came upon the defendant, Barrett, and a third man. Richard Shea challenged Barrett to a fight. The defendant turned around and replied, “No. Bring it down. We aren’t going to let this go.”
b. The shooting. LaMonica worked for the Boston Water and Sewer Commission. He worked from 4 p.m. to midnight. He would usually drive straight home from his job to his apartment, customarily arriving there between 12:15 a.m. and 12:30 a.m. He would turn off Faxon Street to park his car in a parking lot adjacent to his apartment building. Faxon Park is across from the entrance to the parking lot.
c. Identification. Shortly before midnight on May 30, 1980, John Foley, Jean Castonquay, Frederick Laracy, and Lisa Krause went to Faxon Park, after attending a drive-in movie together. Foley testified the group had been drinking and that he had consumed four or five beers during the
Foley described to the police the man he saw running as being five feet, nine inches tall, 175 pounds, wearing jeans and a pullover shirt.
Later that morning, Foley assisted Detective Wilson of the Braintree police department in making a composite drawing. After indicating that he could not draw a face by himself, Foley gave Wilson a general description. With the aid of an Identikit, Wilson and Foley assembled a composite. Foley examined the composite and asked for changes. Wilson then changed elements of the composite and put together a different face. Wilson used a pencil to alter the nose. After Foley altered the hair style, he declared that the composite “looks like him.” A photostatic copy of the composite was introduced in evidence at trial.
The next day, Foley was shown an array of nine photographs. He picked the defendant’s picture as “a pretty good likeness” of the man. Several months later, he again identified the defendant’s photograph out of the same array but which now included one additional photograph.
On June 12, 1980, two State troopers, Foley, and the victim’s two brothers drove through the streets of South Boston
Jean Gastonquay also testified that she heard four shots and saw a man running. At trial, she was unable to say whether the defendant was the man she saw. Moments later, she tentatively identified another person sitting in the back of the courtroom as the man.
d. The defendant’s case. At trial, the defendant’s counsel, through cross-examination, attempted to bring out whatever discrepancies existed in Foley’s testimony. He emphasized that Foley had indicated that the man he saw running had thick sideburns and bushy eyebrows. Foley admitted, however, that the defendant’s eyebrows were different. It also appears that the defendant did not have any sideburns. Despite some evidence to the contrary, the jury could have concluded that the defendant had curly hair at the time of the murder. The defendant also attempted to show that the lighting in the area was poor
The defendant also sought to establish a defense of alibi. Three witnesses testified on his behalf. One witness’s testimony placed the defendant in downtown Boston until midnight. The other witnesses placed the defendant at the Triple O Lounge in South Boston at, or shortly after, the time of the shooting.
In rebuttal, the Commonwealth introduced evidence that the defendant could have left downtown Boston shortly before midnight and driven to LaMonica’s apartment by the time of the shooting. A trip to the Triple O Lounge from the victim’s apartment would have taken only another fifteen or twenty minutes. The Commonwealth also attacked the credibility of the two witnesses who placed him at the Triple O Lounge. Both were long-time friends of the defendant, and one was engaged to Thomas Barrett’s sister. The other witness failed to explain why he never came forward until one week before the trial.
2. Admission of the composite drawing. The composite drawing was prepared by John Foley and Detective Wilson at the Braintree police station on May 31,1980, the morning of the crime. Foley testified that he selected the hair style and other features from hundreds of plastic overlays; he then directed that pencil changes be made in the nose, and that he made pencil changes in the hair before he was satisfied. At the time the composite was prepared neither Foley nor Wilson had any prior knowledge of the defendant other than the events witnessed by Foley on the night of the murder.
The defendant argues that the composite sketch was inadmissible hearsay. We recently had occasion to consider the admissibility of a composite sketch prepared with the aid of a similar “Identikit,” but did not reach the issue because in that case the admission of the composite drawing could not
The defendant finds substantial support for his argument in Commonwealth v. McKenna, 355 Mass. 313, 326-327 (1969). There the court found error in the admission of a similarly made composite drawing. See id. at 327 (the
There is no logical reason to permit the introduction of a witness’s out-of-court identification and to exclude statements identifying the various physical characteristics of a person perceived by the witness, or the composite of all those physical characteristics, which is no more than the sum of the parts perceived.
As in the case of other convictions based upon eyewitness identification at trial following a pretrial identification,
We therefore conclude that an “Identikit” composite sketch not shown to be prepared under suggestive circumstances is admissible as substantive evidence of identification.
3. Admission of evidence of motive. The defendant claims that the judge erred in denying his motions in limine to exclude certain evidence of motive.
We consider first whether the evidence of the victim’s state of mind toward the defendant during the ten days prior to the victim’s death should be admitted in the absence of direct evidence that the defendant was even aware of the victim’s hostility toward him. Such evidence is admissible only if the jury could have reasonably inferred that the defendant knew of the victim’s state of mind. Commonwealth v. Borodine, supra. We conclude that the jury could have so inferred.
After the fight between Barrett and Shea, LaMonica told at least three people that he wanted to retaliate. The jury could have found that these threats were directed at both Barrett and the defendant. The events between the fight and the shooting support an inference that the threats had been communicated to the defendant. He played a prominent role at the fight and at the confrontations which followed. He told Richard Shea that he would “act first” and could appear to have anticipated an act of retaliation by Frank Shea and his friends. There was testimony that the defendant and the victim had engaged in a heated argument during the week before the murder. This evidence warranted an inference that the defendant and the victim had communicated hostile intentions towards each other. Thus, the evidence concerning the victim’s state of mind was properly admitted as tending to show motive, and the jury were entitled to determine its probative value.
The defendant also challenges on another ground the admission in evidence of the defendant’s statement that he intended to act first. The defendant argues that the prejudicial effect of that portion of the statement where he said, “I have a brother dead, I have a brother in jail,” substantially outweighed its probative value. We find no error.
The defendant also claims error in the exclusion of evidence which tended to show that other persons possessed a motive to commit the crime. The evidence was that in 1974 LaMonica had participated in a murder, and that the associates of the victim had threatened to even the score. The victim’s family and Connolly, his paramour, first told the police that they believed that LaMonica was murdered in retaliation for the 1974 murder. The evidence was excluded by the allowance of the Commonwealth’s motion in limine. See Commonwealth v. Hood, 389 Mass. 581, 595 n.5 (1983).
It is open to the defendant to introduce evidence that demonstrates that some other person committed the crime. Commonwealth v. Keizer, 377 Mass. 264, 267 (1979). But the evidence must not be too remote or too weak in probative value. Commonwealth v. Abbott, supra at 475. See Commonwealth v. Graziano, 368 Mass. 325, 329-330 (1975). In the instant case, the trial judge did not abuse his discretion in excluding the evidence. The prior murder was remote, and the defendant failed to tie this evidence to the facts of the case except in the most general way. Cf. Commonwealth v. Keizer, supra at 268.
4. Admission of the mugshot. The day after the crime, and again several months later, Foley picked the defendant’s photograph from an array of mugshots. During direct examination of Foley, the Commonwealth moved
The defendant’s argument is that the profile view lacked probative value in the circumstances of the case. He claims that Foley’s identification was based solely on a front view of the man running from the scene. It is clear from the record that Foley’s identification was based on both a front and profile view. The reliability of his profile identification was relevant. Foley’s description of the man at trial focused on the man’s “crooked” nose, a feature which was best seen from the side. The reliability of the profile identification was also important, given the duration of Foley’s opportunity to observe the man’s face from the front and the defendant’s claims at trial that identification process was suggestive and unreliable. There was no error in allowing the profile mugshot in evidence.
The defendant also contends that the judge should have severed the front and side views. We considered this issue in Commonwealth v. Blaney, 387 Mass. 628 (1982). In that case, we again noted the risk that use of double view police photographs raises an inference of prior contact with the criminal law and adhered to our view that the jury are “best left with the impression that any photographs used to identify the defendant were taken after his arrest on the charges for which he is being tried.” Id. at 639. While it will usually be better not only to sanitize such photographs but also to sever the two views, Commonwealth v. Lockley, 381 Mass. 156, 165-166 (1980), it was within the discretion of the trial judge to determine that the photographic array should go to the jury precisely as it existed at the time of Foley’s identifications. Commonwealth v. Blaney, supra at 639. We note that the judge employed every other reasonable means to limit any prejudice, and delivered a limiting instruction.
6. Exclusion of night photographs and the testimony of photographer. The defendant sought to introduce in evidence six photographs of the parking lot at 196 Commercial Street at night. They were taken from various points in Faxon Park by a photographer retained by the defendant. One of the photographs was admitted over the Commonwealth’s objection after a Braintree police officer testified that it fairly and accurately depicted the lighting in the parking lot area on May 31, 1980. The defendant also offered in evidence the testimony of the photographer. He was to testify to the conditions under which the photographs were taken and that the photographs accurately reflected how the human eye would perceive a human figure at a distance of 175 feet. This testimony was excluded.
We believe that the judge could properly exclude the photographs. No witness testified that the five excluded photographs accurately represented the condition of the lighting at the time of the murder. See Commonwealth v. Sheeran, 370 Mass. 82, 87 (1976). Cf. Howe v. Boston, 311
We also think that the testimony of the photographer was properly excluded.
7. Review under G. L. c. 278, § 33E. The defendant asks that we set aside the verdict in this case as being unsupported by the weight of the evidence and not consonant with justice. The gunman who was lying in wait for this victim fired four shots hitting him twice. Although Foley, the principal identifying witness, had only a brief opportunity to view the killer, he did so while the killer was under a street light and had turned to face him. He participated
Judgment affirmed.
Before hearing evidence in the case, the jury viewed Faxon Park and the surrounding area during the day. The judge, however, denied the defendant’s motion for a view at night.
At the time of his arrest, the defendant was five feet, seven inches tall, and weighed 155 pounds.
The person she picked out was a brother of the victim.
Other evidence offered by the Commonwealth was admitted to create an inference that the defendant was conscious of his guilt. After the shooting, but before his arrest, the defendant asked Francis Shea and Dennis King if the police were looking for him. He said, “Why would I want to kill Bobby? He was the only one that gave my brother any money in jail.”
The quality of the lighting along Faxon Street was a matter of dispute during the trial. Both the Commonwealth and the defendant introduced
The Commonwealth’s closing argument on this point is as follows: The prosecutor: “He saw him that night. He did a picture of him, and I ask you to look at the picture of Fred Weichell that Mr. Foley did, and compare it with the camera’s picture taken two months later. Now, I ask you to look at the hair in this picture. Wouldn’t you describe it as bushy and curly? And look at the eyebrows. Aren’t they thick? Look, particularly, at the nose and see how good the match is between the nose in Mr. Foley’s picture of Mr. Weichell, and the camera’s picture of Mr. Weichell. Look at the mouth. Look, if you would, at the little marks under his lip here in the camera picture and see if that isn’t here in Mr. Foley’s picture. Look at the shape of the chin.”
Defense counsel: “Objection.”
The judge: “Your objection is overruled, sir.”
The prosecutor: “The shape of the chin here, ladies and gentlemen, in Mr. Foley’s picture, and the shape of the chin in the camera’s picture. John Foley told you he tried to match the plastic foils to the picture he had in his mind. I ask you to take some time to see how good that picture matches with the camera’s picture.”
The traditional view that a prior statement of a witness is hearsay if offered to prove the happening of matters asserted therein has increasingly come under attack in recent years on both logical and practical grounds. McCormick, Evidence § 251, at 601 (2d ed. 1972).
Although sufficient evidence of reliability exists to permit the introduction of the composite in this case, we would not, at this time, sustain a conviction where such a composite constituted the only evidence of identification, absent a more general acceptance of such evidence or a greater demonstration of its reliability.
The issue of suggestiveness was not specifically raised by the defendant’s motion to suppress, but was at the very least alluded to in the course of the hearing on the motion.
The defendant could have framed the issue in terms of the hearsay rule. If he had done so, our analysis would not differ. See Commonwealth v. Van Liew, 14 Mass. App. Ct. 662, 664-669 (1982).
There is nothing in the record to support the defendant’s claim, which was not raised below, that the enlargement was the product of some form of trick photography or that it was altered in some unspecified way. The defendant demanded the original color photograph, which was produced immediately by the prosecutor.
To the extent that the photographs constituted a photographic experiment, the judge properly could have excluded them on the ground that the conditions under which they were taken were not sufficiently similar to aid the jury. Commonwealth v. Rodriguez, 6 Mass. App. Ct. 738, 749 (1978), S.C., 378 Mass. 296 (1979). See Griffin v. General Motors Corp., 380 Mass. 362, 365-366 (1980); Commonwealth v. Geagan, 339 Mass. 487, 511, cert. denied, 361 U.S. 895 (1959).
Dissenting Opinion
(dissenting). I find myself in agreement with most of the court’s able discussion of the issues raised by this case. I am compelled, however, to dissent from the court’s conclusion that a composite may be properly admitted as substantive evidence of identification.
Second, the closing argument of the Commonwealth invited the jury to convict the defendant on the basis of the composite. During her closing argument, the prosecutor asked the jury to compare the composite with the photograph of the defendant taken at the time of his arrest. See note 6, supra. The strong reliance on the composite ensured that the admission in evidence of the composite drawing, if error, would not constitute harmless error.
I turn now to the question whether the admission of the composite was error. Foley and Wilson compiled the composite drawing with the aid of an Identikit. This kit consists of several hundred transparent overlays that can be assembled into a “composite overlay ‘sandwich.’” A.A. Moenssens & F.E. Inbau, Scientific Evidence in Criminal Cases § 17.03, at 666 (1978). Each overlay depicts a facial characteristic. The theory is that “because of certain consistencies in the structure of human likenesses, only four factors are necessary to construct the basic composite: age, height, weight, and one of 49 different hairlines. Other characteristics which may be added simply expand the versatility.” Id. at 667. A trained operator selects each overlay based on the description given by the witness. An initial composite is produced, and the witness may suggest changes until he is satisfied.
The question of reliability is central to our inquiry. Without some evidence of reliability, we are left without any means of determining whether the admission of composites furthers or frustrates the truth-seeking process of criminal trial. Substantial reasons exist to question the reliability of composites. I would therefore hold that the proponent of a composite should be required to lay the foundation of ad
The admission of evidence which purportedly has some scientific basis of reliability can “create a substantial danger of undue prejudice and confusion because of its aura of special reliability and trustworthiness. ” United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979). Evidence of a composite appears akin to various forms of newly developed scientific evidence and is subject to some of the same objections. See generally Commonwealth v. Vitello, 376 Mass. 426, 440-447 (1978) ;
A better standard to judge the admissibility of composites is found in traditional notions of relevancy. Evidence and expert testimony, which otherwise may be admissible under Frye or as an exception to the hearsay rule may still be objectionable if its “aura of special reliability and trustworthiness” is not commensurate with its actual reliability. City of New York v. Pullman Inc., 662 F.2d 910, 915 (2d Cir. 1981), cert. denied, 454 U.S. 1164 (1982), quoting United States v. Fosher, supra at 383 (even if hearsay report was admissible as a governmental record, trial judge could exclude report). United States v. Fosher, supra (expert testimony held properly excluded due to danger of undue prejudice and confusion). Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 511 (2d Cir.), cert. denied, 434 U.S. 861 (1977) (statistical testimony held objectionable due to danger of “prejudicial overweight”). See generally 1 J. Weinstein & M. Berger, Evidence par. 403[04] (1982); Fed. R. Evid. 403; Proposed Mass. R. Evid. 403.
A related concern is the inherent suggestiveness of the method. A composite “represent[s] the effort of a trained police artist to transform a witness’s oral description into pictorial form.” Commonwealth v. Williams, 378 Mass. 217, 230 (1979). Commonwealth v. McKenna, 355 Mass. 313, 327 (1969) (composite is “a recording in graphic form” of witness’s statements). “The process is inherently susceptible to subtle and even unconscious suggestiveness by the police artist,” particularly when the witness is inarticulate or has “only an ill-defined image of the offender.” Commonwealth v. Blaney, 387 Mass. 628, 640, 642 (1982) (O’Connor, J., dissenting). To produce a composite, the witness’s mental image of the offender first must be matched with individual facial features. Only after a number of individual features have been selected and assembled is the witness able to determine whether his mental image of the offender comports with the composite. By that point, either the witness’s image may have been altered or the witness may be unable to decide which facial features are correct.
The problem of suggestiveness is particularly acute in two situations. First, in many cases the police may have identified a potential suspect. The danger then exists that the composite will be matched to the suspect rather than the suspect to the composite. Even the most conscientious police operator will have difficulty maintaining a neutral pose in such circumstances. While this concern is not present in the instant case, it may be present in other cases.
Second, any form of suggestiveness in the process of identification is problematic when the identification is based on an observation of limited duration. Clearly, the weaker the contemporaneous impression, the more likely the witness will be influenced by the identification process. Cf. Commonwealth v. Moon, 380 Mass. 751, 756-759 (1980) (period of observation lasted ten to twenty seconds in
Assuming that the trial judge has determined the composite evidence to be sufficiently probative to warrant admission, a third concern is that the composite is hearsay evidence. The hearsay rule renders extrajudicial statements inadmissible if they are offered to prove the truth of the matters asserted in the statements. Some courts have excluded composites, as has this court, on the ground that they are a form of inadmissible hearsay. Commonwealth v. McKenna, supra. Commonwealth v. Rothlisberger, 197 Pa. Super. 451 (1962).
We have stated previously that “[a]n extrajudicial identification made by a witness may be offered in evidence for
Evidence of an extrajudicial identification introduced merely to corroborate an in-court identification has not been considered to be hearsay evidence. Commonwealth v. Repoza, 382 Mass. 119, 129-130 (1980). Our recent decisions on the admissibility of extrajudicial identification, however, have abandoned the distinction between substantive and corroborative evidence in the context of identification evidence.
This exception to the hearsay rule is premised on a practical assessment of the relative reliability of different methods of identification. The inherent suggestiveness of the courtroom setting and the passage of time serve to diminish the reliability of an in-court identification. A prior extrajudicial identification is therefore regarded as having testimonial value equal to or greater than one made in court. Commonwealth v. Torres, supra at 739. Commonwealth v. Locke, 335 Mass. 106, 112 (1956).
Evidence of a pretrial composite identification is distinguishable from the other types of pretrial identification evidence. Unlike extrajudicial photographic or in-person identifications, composites have not as yet been shown to possess a fair degree of reliability, let alone greater reliability than in-court identification. It cannot be said that they are significantly more reliable than an in-court identification. “Translating a mental image to a composite drawing provides opportunities for communication failure, error in reproduction, and extraneous influence that are not present when a witness can compare his mental image directly with either a photographic image or a person.” Commonwealth v.
The trial judge, however, admitted the composite photograph as corroborative evidence only.
A photographic array presents the witness “with Gestalt-like stimuli: he must consider each photograph in its entirety.” Cohen, Number of Features, and Alternatives per Feature, in Reconstructing Faces With the Identi-Kit, 1 J. Police Sci. & Ad. 349 (1973). A composite requires that the witness review “sets of facial features . . . and he must select from each set the one he believes most closely resembles that of the suspect. . . . Thus, the information processing in the Identi-Kit technique is different from the mug shot technique; the witness must consider each of the features separately in an orderly manner.” Id. The Identikit process begins to break down when the number of features the witness must select increases. Id. at 352.
The state of the law as to the admissibility of composites is unsettled. Our holding in Commonwealth v. McKenna, 355 Mass. 313, 327 (1969), is in accord with the traditional rule that composites are inadmissible hearsay. People v. Jennings, 23 A.D.2d 621 (N.Y. 1965). Commonwealth v. Rothlisberger, 197 Pa. Super. 451 (1962). Another line of cases permits the introduction of composites solely to corroborate the testimony of the identifying witness at trial. People v. Rogers, 81 Ill. 2d 571, 580-581 (1980). State v. Lancaster, 25 Ohio St. 2d 83, 91-92 (1971). One court has held that a composite may be admissible if it falls within the res gestae exception to the hearsay rule. People v. Bills, 53 Mich. App. 339, 349 (1974), remanded on other grounds, 396 Mich. 819 (1976). Three courts have held that composites are admissible generally. In State v. Ginardi, 111 N.J. Super. 435, 450-456, affd without opinion, 57 N.J. 438 (1970), it was held over a vigorous dissent that composites are admissible under the general rule that admission of prior extrajudicial identifications is proper. In United States v. Moskowitz, 581 F.2d 14, 21 (2d Cir.), cert. denied, 439 U.S. 871 (1978), and State v. Packard, 184 Conn. 258, 272-275 (1981), it was held that composites were not a “statement” and therefore were not hearsay statements. This latter analysis is inconsistent with the view that we expressed in McKenna, and should be rejected.
No court has admitted a composite where the identification is based on so limited an opportunity of observation as that which Foley had in this case. E.g., People v. Bills, supra at 344 (court framed issue as to whether “trial court err[ed] in admitting into evidence the sketch or composite picture of a person described by a witness who saw that person in close proximity of the crime and on two different occasions the morning of the crime”); State v. Ginardi, supra at 449 (victims had ample opportunity during a period of one and one-half hours in an automobile). Arguably, an excellent opportunity to observe the perpetrator may impart some indicia of reliability to the composite.
Rule 403 of the Federal Rules of Evidence provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waster of time, or needless presentation of cumulative evidence.” Professor Giannelli has suggested that novel scientific evidence should not be admitted in a criminal case until its reliability is established beyond a reasonable doubt if the State is its proponent, or a preponderance of the evidence if the defendant is its proponent. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197, 1248 (1980). Professor McCormick suggests that the admissibility of scientific evidence be determined by adhering to relevancy standards, such as those set forth in Fed. R. Evid. 403. McCormick, Evidence 491 (2d ed. 1972).
Under the Proposed Massachusetts Rules of Evidence, a statement is not hearsay if the declarant testifies at trial and the statement is one of identification of a person made after the declarant perceived him. Proposed Mass. R. Evid. 801(d)(1)(C) (1980). Fed. R. Evid. 801(d)(1)(C) (same).
The question whether a prior extrajudicial identification is admissible as substantive evidence has arisen generally in cases where the witness is either unwilling or unable to make an in-court identification. See Commonwealth v. Vitello, 376 Mass. 426, 458 (1978); Commonwealth v. Torres, 367 Mass. 737, 738-739 (1975). These cases do not hold that a prior extajudicial identification could not be offered as substantive evidence in cases where the witness also made an in-court identification. Such a distinction would be anomalous. Commonwealth v. Fitzgerald, 376 Mass. 402, 406-408 (1978) (in-court identification contradicted by witness’s own testimony). See Commonwealth v. Vitello, supra (“extrajudicial identification may be used substantively even when the witness is unable or unwilling to make an in-court identification” [emphasis supplied]). To the extent that the reasoning of Commonwealth v. Repoza, 382 Mass. 119 (1980), suggests that a distinction exists between substantive and corroborative evidence in the context of identification evidence, we should not follow it here.
The court’s suggestion that we would not sustain a conviction where the only evidence of identification is a composite makes practical sense. But the same practical considerations which dictate this result should lead the court to the conclusion that composites should be excluded entirely until there is a demonstration of their reliability. The court cites no evidence that composites possess a fair degree of reliability.
Of course, any doubts which I express concerning composites may be eliminated by new developments in the field or by submission of evidence demonstrating that composites posséss a fair degree of reliability.
I would not rule here that a composite may not be utilitized for other evidentiary purposes, e.g., to refresh recollection, or to impeach or to rehabilitate an identification witness. See Commonwealth v. McKenna, 355 Mass. 313, 327 (1969); Annot., 42 A.L.R. 3d 1217, 1222 (1972 & Supp. 1982).
Dissenting Opinion
(dissenting). I do not agree with the court’s holding that the composite was properly admitted in evidence. My views on the admissibility of composites in criminal trials were fully expressed in my dissenting opinion in Commonwealth v. Blaney, 387 Mass. 628, 640-643 (1982). Because I believe that admission of the composite was prejudicial error, I would reverse the conviction and remand for a new trial.
Reference
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