Thursday, September 22, 2011
Massachusetts does no have codified rules of evidence, it does have the Massachusetts Guide to Evidence. And, as I have noted before, "[a]lthough the Guide is only guidance and not rules, it was 'approved for use' by [the] Supreme Judicial Court [of Massachusetts] in 2008." Pursuant to "Rule 801(d)(1)(C)" of the Guide, a statement is not hearsay if it is "[a] statement of identification made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." But what about statements surrounding the statement of identification? Are they admissible as well or are they inadmissible hearsay? That was the question addressed by the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Walker, 2011 WL 4357665 (Mass. 2011).
In Walker, Andre Walker was convicted of (1) murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty for the shooting death of Francis Stephens; (2) the armed assault with intent to murder of Jose Astacio, who was shot but not killed; and (3) and possession of an unlicensed firearm.
After he was convicted and unsuccessfully filed a motion for a new trial on the ground of ineffective assistance of counsel, Walker appealed. One of the grounds for his appeal was that his trial counsel erred by failing to object to the introduction of alleged hearsay statements made by (eye)witness for the prosecution Sylvester Harrison. Specifically, a detective testified
that Harrison said he saw the person depicted in photograph number two (the defendant) operate a black Toyota and "[h]e observed [this person] as being the shooter coming out of the vehicle and shooting at two individuals that were on the sidewalk."
According to Walker portions of this statement were inadmissible hearsay that went beyond the permissible scope of an identification under "Rule 801(d)(1)(C)." The Supreme Judicial Court of Massachusetts (mostly) disagreed, initially noting that
"[a]bsent context, an act or statement of identification is meaningless....[I]dentification evidence must be accompanied either by some form of accusation relevant to the issue before the court, or some form of exclusionary statement, in order to be relevant to the case."...We have concluded that an eyewitness's out-of-court statement identifying a defendant as the person shooting at the eyewitness's friend is part of the context of the identification,...but a statement regarding the number of shots fired, the color of the firearm, and the defendant's behavior after the shooting goes beyond the context of the identification of the shooter.
The court then found the statement(s) in the case before it more like the former type of statement, finding that
The judge, in denying the defendant's motion for a new trial, concluded that Harrison's statement that the person in photograph number two looked like the person who operated the car and then fired shots at two individuals on the sidewalk was "limited context integral to the identification," and therefore properly admitted. The judge also concluded that Harrison's description of the car as a "black Toyota" was "extraneous to the identification," and was inadmissible hearsay, but was harmless in the circumstances in view of abundant other evidence that the car involved in the shooting was a black Toyota. We agree.