COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SJC No. 4880

DARRET~L JONES
Defendant-Appellant
v.

COMMONWEALTH OF MASSACHUSETTS

Appellee

BRIEF FOR APPELLANT

ON APPEAL FROM A FIRST DEGREE MURDER
CONVICTION IN THE PLYMOUTH SUPERIOR COURT

James S. Dilday, Esq.
GRAYER, BROWN & DILDAY
27 School Street, Suite 400
Boston, MA 021,08
(617)
227-3470
Counsel for Appellant

 TABLE OF CONTENTS
Table of Contents .
Table of Authorities
Statement of Issues
Argument
I.

II.

.
MURDER CONVICTION SHOULD BE VACATED AS
EVIDENCE RECEIVED AT TRIAL WAS INSUFFICIENT
TO SUPPORT JURY VERDICT
IN THE ALTERNATIVE, THE TRIAL COURT COMMITTED
REVERSIBLE ERROR ENTITLING DEFENDANT TO A
NEW TRIAL
A.

Testimony by prosecution witness Detective
Joseph W. Smith relative to pre-trial photo
identification of defendant by other
eyewitnesses was so prejudicial as to
outweigh its impeachment value and
admission was improper,

-

i

-

Conclusion

 TABLE OF AUTHORITIES
CASES
Commonwealth v. Baker, 346 Mass. 107 (1963)
Commonwealth v. Bowman, 373 Mass. 760 (1977)
Commonwealth v. Burke,_ 339 Mass. 521 (1959)
Commonwealth v. Cadwell, 374 Mass. 308 (1978)
Commonwealth v. Carter. 306 Mass. 141 (1940)
Commonwealth v. Croft,. 345 Mass. 143 (1962)
Commonwealth v. Daye, 393 Mass. 55 (1984)
Commonwealth v. Marsh, 26 Mass. App. Ct. 933 (1988)
Commonwealth v. Moon, 380 Mass. 751 (1980)
Commonwealth v. Moynihan, 376 Mass. 468 (1978)
Commonwealth v. O'Brien, 305 Mass. 393 (1940)
Commonwealth v. Rilev. 530 NE.2d 184 (Mass. App. Ct. 1988)
Rehearing denied 403 Mass. 1106 (Mass. App. Ct. 1988)
Commonwealth v. Rutledge, 356 Mass. 499 (1969)
Commonwealth v. Saminara, 20 Mass. App. Ct. 789 (1985)
Commonwealth v. Storev, 378 Mass. 312 (1979)
Commonwealth v. Swenson, 368 Mass. 268 (1974)
Commonwealth V. Tavares, 385 Mass. 140 (1982)
Commonwealth v. Toney, 378 Mass. 24 (1981)
Commonwealth v. Venios, 389 N.E.2d 395 (1975)
STATUTES
265 M.G.L., Section 1
278 M.G.L., Section 33E
ii

 STATEMENT OF ISSUES
I.

II.

Whether the Defendant's first degree murder
conviction should be vacated as evidence
received at trial was insufficient to support a jury
verdict?
In the alternative, whether the trial court
committed reversible error entitling Defendant
to a new trial when it:
A.

Allowed testimony so prejudicial as to
outweigh its impeachment value?

- 1 -

 STATEMENT OF CASE
This is an appeal from a one count indictment issued December
9, 1985, at the Superior Court for Plymouth County and charging the
Defendant, Darrell Jones, with murder pursuant to Massachusetts
General Laws, Chapter 265, Sec. 1.

(App. 1)

Beginning September 22, 1986, Jones, a black man, was tried
before Judge Cris Byron by an all white 12 person jury.

(App. 4)

On October 2, 1986, the jury returned a verdict of guilty in the
first degree (App. 5); and on the same date Judge Byron imposed a
mandatory life sentence for the offense.
notice of

On October 7, 1986, a

appeal was filed in the Superior Court on Mr. Jones'

behalf (App. 5) and the case was subsequently transferred to this
court.

STATEMENT OF FACTS
On or about November 11, 1985, victim Guillermo Rodriques,
a/k /a Pow, was shot by a single assailant in the parking lot of a
(then)

D'Angelo's

Massachusetts.

sub

shop

on

Montello

Street

in

Brockton,

He subsequently died at Brockton Hospital.

Trial Testimony - The Commonwealth's Case
The

Commonwealth

presented

evidence

initially

placing

Rodrigues in `Pete and Mary's,' a bar located on Montello Street
and diagonally across the street from D'Angelo's sub shop, during
the evening of November 11, 1985 (App. 149) and, later, exiting
'Pete and Mary's' with a shorter, black man.

- 2 -

Witnesses Paul Jones

 and Denise Perkins

Jones,

who

were

sitting in a car

in the

D'Angelo's parking lot facing `Pete and Mary's' that evening, both
testified regarding the shooting.

Paul Jones testified that after

10:00 p.m. on November 11, 1985, he drove with his then fiancee
Denise Perkins into the D'Angelo's parking lot and then went into
the subshop to place an order.

(App. 32 - 33)

While standing at

the counter, Jones testified that he saw a black woman enter, place
an order, and return shortly thereafter with a black man.
(App. 34 - 35) The two then left the shop together.
Both Paul and Denise Jones

testified that

(App. 35)
once they had

purchased food, Paul Jones moved his car to a parking space facing
`Pete

and Mary's'

and observed two men,

who were very close

together, walking through D'Angelo's parking lot. (App. 11 and 39)
Both testified that the taller of the two men, later identified as
Rodrigues, fell to the ground.

(App. 12 and 40)

fled on foot.

They went on to testify that Paul

(App. 12 and 40)

The second man

Jones unsuccessfully pursued the assailant by car and, after losing
him, returned to the D'Angelo's parking lot where they spoke with
Brockton police officers; viewed the crowd which had gathered to
determine whether the assailant was among them; and, not seeing the
assailant,
station.

then accompanied the police to the Brockton police
(App. 14 - 21 and 41 - 45)

During

the

course

of

trial

the

Commonwealth

introduced

identification testimony by six eyewitnesses present in the
D'Angelo's parking lot at the time of the shooting:

- 3 -

Paul and

 Denise Perkins

Jones

and

four

individuals

who left

`Pete

and

Mary's' together and entered a car parked behind the spot where
Rodriguez fell when shot:

(App. 16)

Walter "Bobo" Watson, Lisa

Pina, Edna Levine, and Terry Lynn Starks
(App. 62)

(the

'Watson'

group).

While testimony of these six varied by degree, evidence

at trial showed night had fallen when the shooting occurred
(App.

107);

that

the D'Angelo's parking lot was equipped with

lights (App. 36, 182); and that it was raining when the 'Watson'
group exited `Pete and Mary's.'
The

(App. 63, 85, 107)

evidence introduced through the Watson group

showed

Watson was the owner and operator of the car, (App. 62) that Levine
was seated next to him, with Starks seated in the front passenger
seat,

and Pina occupying the rear

seat of

the car.

(A fifth

passenger, Al Moreau, was not called to testify.)
(App. 107)
in reverse,

Watson testified that he was operating the car slowly
to exit the parking lot, when passengers realized

Rodrigues had been shot.

(App. 63)

Starks testified that she

observed the victim and assailant cross Montello Street (App. 79 81) and that at some point after they were in the car "Edna Levine
said `That's Diamond "'

(App. 80); Levine, directly contravening

Stark's testimony, testified that "Terry Lynn stated `Edna, Diamond
has a gun"' (App. 92) causing her to freeze and observe nothing
about the assailant (App. 93); and Pina testified that she observed
the two men walking, saw Rodrigues fall, and "heard another girl
in the car say `that Diamond, yeah, that damned Diamond "'.

- 4 -

 (App. 99 - 102)
In the

course

of

their

testimony,

not

one

of

these

six

witnesses was able to make an in-court identification of Jones as
the Rodrigues' assailant with certainty:

Jones, Pina, Watson and

Levine were not asked to make an in-court identification; Starks,
when asked to "Look around, do you see the man who shot Pow sitting
here today" answered "I can't be positive." (App. 83); and Perkins
testified as follows:
Q.

Denise, I'm going to ask you to look around the
courtroom and see if you can identify the individual
that you saw on November 11, 1985, shoot Guillermo
Rodrigues in D'Angelo's parking lot.
THE COURT:
MR. ELIAS:

Objection, Judge.

THE COURT:

Overruled

A.

From what I picked out on pictures?

Q.

No, what you can do independently of pictures.

A.

Well, what I picked out on pictures -MR. ELIAS:

Judge, I suppose the answer is
yes or no.

THE COURT:

Not so much what you pick out
in pictures.

Apart from picking

out anything.
A.

Well, I can't be one hundred percent sure so I'd have
to say no.

- 5 -

 Q.

Now, you're not one hundred percent sure.

A.

No.

Q.

Is that correct:

A.

(No answer)

Q.

Do you see anyone in the courtroom who is of a
similar description to that person that you observed
that night.
MR. ELIAS:

Objection

THE COURT:

Overruled

A.

Yes.

Q.

Would you point him out to us?

A.

Right there in the white.

MR. CUNNINGHAM:

The
through

Your Honor, may the record indicate that
the record indicate that the witness has
identified the defendant.
(App. 28 - 29)

prosecution
five

other

also

presented

witnesses:

identification

Bridgette

Struthers,

testimony
Detective

Joseph Smith, Detective John Luciano, Detective Donald LaGarde,
and Robert Kanicholas.
Struthers testified that at some time prior to the shooting
she accompanied Jones to D'Angelo's and bought him a sub, and saw
him

return to `Pete and Mary's' to eat.

(App. 150 - 154)

Smith testified, inter alia, that Starks, Pina and Levine all
picked out photos of Jones at pre-trial photo identification arrays
as the man they observed shoot Rodrigues (or, in Levine's case,
leaving the scene).

(App. 129, 115 and 123)

 Detective LaGarde

testified to

statements made by Jones

following his arrest in which he denied the crime, denied leaving
`Pete and Mary's'

during the evening of

November

5, 1985

and

described his own clothes on the night of the shooting as a brown
leather

jacket, a blue cap with the word "Reebok" on it, blue

leather boots, and gray jeans.

(App. 143 - 144)

Luciano testified that he was present at Jones'
`Pete and Mary's' on November 17, 1985,

arrest in

(12 days following the

shooting) and described Jones' clothing at he time of his arrest
as follows:
A.

That evening he was wearing a brown leather
jacket to the hip, had a baseball cap on, and
I believe he had some dark slacks on. (App. 146)

And, Kanicholas testified that he is the proprietor of the
Colonial Spa, a bar some 300 yards away from `Pete and Mary's',
observed a black man in the bar during the evening;

and discovered

a

day

semi-automatic

shooting.

pistol in a waste basket

(App. 160 - 163)

murder weapon.

Kanicholas

the

after

the

The gun was later identified as the
was not

asked to make an in-court

identification of Jones as the black man who appeared in the Spa
on November 11, 1985 and gave no description of the man he observed
that evening.

In response to a direct question, he was unable to

recollect what type of clothing the individual he observed was
wearing. (App. 162)

- 7 -

 Trial Testimony - The Defense
The defense presented a case of mistaken identity and offered

testimony through three alibi witnesses:
Dukes and Evelyn Anderson.

Andrew Augustine, Vinelle

All three alibi witnesses testified

that they knew Jones, had been in `Pete and Mary's' on November 11,
1985, and had seen Jones there.
Augustine testified that he knew Jones in passing,
(App. 183);

and had observed him seated in a corner booth with

Vinelle eating a submarine sandwich when the police entered the bar
and alerted patrons that a shooting had occurred outside (App.
185); and described his clothes as a brown leather jacket and light
blue jeans.

(App. 186)

Dukes testified that she also knew Jones and sat with him in
a booth at `Pete and Mary's' on the evening of November 11 while
he ate a sub.

(App. 167)

She stated the shooting outside occurred

as she was preparing to leave the bar with Evelyn Anderson, Jerome
Porter, and Jones, who was to walk them home.

(App. 168)

Dukes

went on to testify that s3~e, Anderson, Jones and Porter left `Pete
and Mary's' after police announced the shooting and stood outside
the bar, (App. 168) where she observed a white couple talking to
the police (App. 169).
Anderson testified that she, too, observed Jones in 'Pete and
Mary's',

(App.

174)

sat

with him in a booth while he

ate

a

submarine sandwich, and, (App. 174) confirmed Dukes' testimony that
Dukes, Anderson, Jones and Porter were exiting the bar when the

 police announced there had been a shooting.

(App. 175)

Anderson

testified:
"The policeman told us to stop and we stopped, and at
that time he was asking us did we see anybody run
through the bar and a car pulled up with a guy in the
car and we were standing there..." (App. 175).
By their testimony, Anderson and Dukes corroborate the Jones'
testimony that they studied the crowd to see if the assailant was
among those gathered, and the two women placed Jones in the crowd
when viewing.

Both women describe Jones as wearing a leather

jacket, jeans, sneakers and a cap on his head.

(App. 170 and 177)

 3
DEFENDANT'S MURDER CONVICTION SHOULD BE
VACATED AS EVIDENCE RECEIVED AT TRIAL
WAS INSUFFICIENT TO SUPPORT A JURY VERDICT
AND RELIEF IS APPROPRIATE UNDER M.G.L.c. 278,
SEC. 33(E)
Under M.G.L.ch. 278, Sec. 33(E), a defendant convicted in a
capital case is entitled to a "review of the whole case on the law.
and the facts to insure that the result is consonant with justice."
Commonwealth v. Toney, 385 Mass. 575, 584, 433 N.E. 2nd, 425, 434
(1981) citing Commonwealth v. Tavares, 385 Mass. 140, 157 through
158

(1982).

In undertaking this review,

the proper

focus is

whether the defendant's trial was "fair and that the verdict was
not `against the weight of the evidence considered in a large or
non-technical sense. "' Id at 434 citing Commonwealth v. Cadwell,
374 Mass. 308, 316 (1978), quoting from Commonwealth v. Bowman, 373
Mass. (1977).
In a first degree murder case where, as here, identification
is the major issue at trial and "the testimony of the eyewitnesses
to the crime regarding identification of the Defendant[s)...[is]
far from convincing, " ordering a new trial is a proper remedy under
this statute.

Commonwealth v. Rutledge, 356 Mass. 499, 503 (1969).

This court may afford Jones the same relief afforded the defendants
in Rutledge, "if satisfied that the verdict was against the law or
the weight of the evidence, or because of newly discovered evidence
or for any other reason justice may require... Id at 502 citing

- 10 -

 Commonwealth v. Baker, 346 Mass. 107, 108 - 109.
Both Rutledge and the instant appeal turn on identification
of

defendants

as

outside barrooms.

participants

in rapid,

night-time

shootings

Here, as in Rutledge, the prosecution called

several eyewitnesses to the shooting.

None were able to make

positive in-court identifications of Jones as Rodrigues' assailant,
however,

and

all

but

one

denied

making

positive

pre-trial

identifications of him, as well.
In Rutledge, the court ordered a new trial for one of three
defendants based on insufficient identification testimony after
witnesses clustered in the doorway where the shooting occurred
consistently reported only two assailants and three individuals
stood trial.

Since the night of November 11, 1985, was rainy, and

they were positioned 8 - 9' away from the shooting (or~in a car)
eyewitnesses in the instant case had even less opportunity to
observe Rodrigues then did the witnesses in Rutledge.

Because the

quantum of probative identification evidence received in this case
was marginal

and

eyewitness

identification

testimony

is

less

reliable than that of the Rutledge witnesses, the instant appeal
presents an even more compelling case for Section 33E relief.
To summarize the testimony offered by the six eyewitnesses
to the instant murder:
Denise Perkins Jones:

testified that at some point

during the evening of November 11, 1985, she saw a
black man accompany a black woman into the D'Angelo's

 subshop; saw a black man walking closely next to a
taller, lighter skinned man into the D'Angelo's parking
lot and saw the taller man fall to the ground.
Perkins went on to testify that she did not see
Jones in the crowd which gathered following the shooting;
picked Jones' picture out of a photo array subsequently
saying the photo was "The person that looked almost exactly
like the guy I saw";

and when asked if she could "look

around the courtroom and pick out the individual you saw
shoot the victim" stated "she had no independent recollection
of the assailant, other than from the photo she had picked
out at the pre-trial and, as a result, testified "While I
can't be 100

sure, so I would have to say No."

When

asked, over defense objection, whether she saw in the
courtroom anyone of "similar description," Perkins was
able to point to Jones.
This witness described the assailant as a skinny
black man, six feet tall, wearing a dark green navy-like
coat reaching passed his waist, dungarees and white
sneakers.

(App. 8 - 29)

Paul Jones:

Perkins (then) fiance testified that he

observed a black woman in D'Angelos while he was in
the sub shop placing his order and saw her leave and
return shortly thereafter with a black man.
Jones went on to testify that shortly thereafter

- 12 -

 he later saw two men walking across the D'Angelo's parking
lot, one tall and light complected and one short and black;
saw the victim shoot and was able to view the black
assailant for approximately 1.5 to 2 minutes from a
distance of approximately eight to nine feet.
At an initial photo array, Paul Jones testified he
was unable to pick out the assailant with certainty;
at a second photo array picked out a photo of Jones
stating "I am not 100

sure, but I think I saw this

individual at D'Angelo's; and stated he "thought" it
was the same person who shot the victim".
Paul Jones was not asked to make an in court
identification of the Defendant and described the
assailant as a black man wearing a "long coat and dark
pants" and bright white sneakers.
Terry Lynn Starks:

(App. 30 - 59)

testified she was seated in the

passenger's seat of the Watson car when the shooting
occurred behind her; that Edna Levine (another passenger
in Watson's car) mentioned the name`Diamond'
contemporaneously,

with or shortly after the shooting;

confirmed on the stand that she had picked a photo of
the assailant (which proved to be Jones' picture)

out

of a pre-trial photo array (the jury was allowed to view
an edited video tape of this identification); and was
unable to make an in-court identification of Jones.

- 13 -

 Starks described the assailant in broad terms as
dark complected with short cut hair.
Lisa Pina:

(App. 69 - 86)

testified that she had not seen the

assailant during the shooting; did not know Jones; was
forced to the point of tears to look at six photos arrayed
over her objection; after eliminating three individuals
she recognized in the array, testified that she just
happened to pick Jones' photo out of three remaining in
the array; and denied she had observed the assailant
in the parking lot on the night of the shooting.
Pina was not asked to make an in court identification
and gave no description of the assailant.

(App. 94 - 107)

John `Bobo' Watson: testified that at the time of the
shooting he was seated in the driver's seat of his own
vehicle; was unable to identify Jones in a pre-trial photo
array; and was not asked to make an in-court identification
of Jones.

Watson did testify that he heard the name

"Darrell Jones" spoken by a passenger in his car
contemporaneously, with or shortly after, the shooting.
(App. 60 - 68)
Edna Levine:

denied verbally saying the name `Diamond'

at the scene (a comment attributed to her by Stark) and
testified that Stark mentioned the name `Diamond'
contemporaneous with, or shortly after, the shooting;
further stated that she was unable to identify the

- 14 -

 assailant due to the rainy conditions on the evening
of November 11, 1985; that she identified Jones' photo
in a pre-trial array only when asked "Do you know who
Darrell Jones is ? "; and testified she was not asked at the
photo array to identify the shooter "because I couldn't;"
Levine was not asked to make an in-court identification
of Jones as the assailant.

Three

defense

alibi

(App. 87 - 93)

witnesses

also

gave

identification

testimony:
Andrew Augustine:

testified that he knew Jones and

observed him sitting in a booth at `Pete and Mary's' eating
a sub-marine sandwich when police entered the bar to inform
patrons that a shooting had occurred.
Vinelle Dukes:

(App. 181 - 192)

testified that she sat with Jones in a

booth during the evening and was preparing to leave `Pete and
Mary's' with him, Evelyn Anderson and Jerome Porter when
they were stopped at the door by police; she further stated
that she stood with this group outside the bar following the
shooting when a white couple observed the crowd;
Dukes described Jones as wearing a short leather coat
with greenish jeans, high top blue or black boots (testimony
the prosecutor attempted to impeach with Grand Jury minutes
reflecting an earlier description of Jones' sneakers by Dukes
as white and blue) and a hat worn backwards.

- 15 -

(App. 164 - 170)

 Evelyn Anderson:

Corroborated Dukes' testimony saying

she, too, observed Jones throughout the evening at `Pete and
Mary's' and sat with him in a booth while he ate a sub.
Anderson further testified that as she prepared to leave with
Jones, Porter and Dukes they were stopped at the bar exit by
police and stood on the sidewalk with them for some time.
Jones' clothing was described by this witness as a
leather jacket, a pair of sneakers, jeans, and a hat turned
around on his head.

(App. 171 - 180)

Further pre-trial,

eyewitness

identification evidence was

offered through Joseph Smith, who testified that Starks, Pina, and
Levine all picked out photos of Jones at pre-trial photo arrays as
the man they observed shoot Rodrigues
running from the scene).
testimony

about

(or, in Levine's case, saw

Following an objection as to Smith's

the Pina

and Levine

identifications,

defense

counsel asked for, and received, a limiting instruction by the
court admitting the testimony for impeach purposes, only.
(App.

117,

123)

Smith's

testimony

as

to

Starks

photo

identification was allowed in, over defense objection,
probative value.

array

for its

(App. 131)

In sum, review of probative identification evidence received
from

eyewitnesses

at

trial

leaves

identification of Rodrigues' assailant.

grave

doubt

as

to

While it is generally the

province of the jury to evaluate conflicting identification

- 16 -

the

 testimony, taking credibility into account, Commonwealth v. Marsh,
26 Mass. App. Ct. 933 (1988) the quantum of evidence received in
the instant case is insufficient to support a jury verdict in this
case as a matter of law.
Not one of the prosecution witnesses in the instant case was
able to make a reliable in-court identification of Jones as the
assailant.
but

Denise Perkins did point out Jones in the courtroom,

only in response

to a

"similar" to the assailant.

question asking if

she

saw anyone

Terri Lynn Starks, Denise Perkins

Jones and Paul Jones did select the defendant's photo from pretrial arrays, but Paul Jones identified it by reference to the
black man he observed in D'Angelo's (an individual he had a far
better opportunity to observe than the assailant, himself)

and

Denise Perkins Jones had also observed a black man enter D'Angelo's
and admitted the black man she saw shoot Rodrigues was half hidden
behind the assailant.
Pre-trial photo identifications by the Watson group are also
suspect, given the limited opportunity these individuals had to
observe the crime; prevailing weather conditions; the rapidity with
which the shooting occurred; and suggestive procedures employed in
the Pina and Levine photo arrays.

While admissible,

this can

hardly be said to be identification testimony supporting certainly
"beyond a reasonable doubt."
It

is

also

important

descriptions in evidence.

to

note

the

differing

Eyewitnesses Paul Jones

clothing

and Denise

Perkins Jones describe the assailant's jacket as thigh-length,
- 17 -

 "long" and "navy" like.

Neither mentioned a hat.

Starks, who

offered the most comprehensive eyewitness description in evidence,
failed to note the assailant's clothing, but did notice he had
short-cut hair - suggesting, also, the assailant was not wearing
a hat.

It is also important to note that according to Dukes and

Anderson, police were looking for an assailant in a long black coat
(App.

168 and 176)

directly following their appearance on the

scene.
By

contrast,

defense

witnesses

testified that

Jones

was

wearing a short, brown leather, jacket and both Anderson and Dukes
testified that he was wearing a hat on the night of the shooting.
This evidence is corroborated by Jones' own description of clothing
he was wearing on November 11, 1985, reported by Detective LaGarde,
and Officer Luciano's testimony that when arrested he was also
wearing a cap and a brown leather jacket.
At

best,

probative

identification evidence presented by

eyewitnesses to the instant shooting is in such disarray that it
leads to two inconsistent propositions:
than

Jones

was

the

assailant,

responsible for the shooting.

or

that

that a black man other
Jones,

himself,

was

This quantum of evidence is clearly

insufficient to support a jury verdict under state law, for:
"when the evidence tends equally to support either
of two inconsistent propositions, neither of them can
be said to have been established by legitimate proof.
Commonwealth v. O'Brien, 305 Mass. 393, 400.
Commonwealth v. Carter, 306 Mass. 141, 147.
Commonwealth v. Burke. 339 Mass. 521, 528 - 529.
A verdict in favor of the party bound to maintain one

 of those propositions against the other is necessarily
wrong. Commonwealth v. O'Brien, supra, 400. In choosing
among the possible inferences from the evidence presented,
the jury necessarily would have had to employ conjecture.
This is insufficient to sustain the burden resting upon
the Commonwealth. Commonwealth v. Albert, 310 Mass. 811,
817, Commonwealth v. Croft, 345 Mass. 345 Mass. 143, 145
(1962).
Because the instant case, like Croft, rests primarily on
circumstantial evidence

(that Jones was in the vicinity of the

shooting and is a black man of medium height), the Commonwealth
has not met its burden of proof and the

jury verdict should be

vacated under this Court's Sec. 33E powers, the rule for, where:
The Commonwealth's case rests solely on
circumstantial evidence, the rule for the probative
character of which is well settled. It is that "the
circumstances must be such as to produce a moral
certainty of guilt, and to exclude any other reasonable
hypothesis; `...the circumstances taken together should
be of a conclusive nature and tendency, leading on the
whole to a satisfactory conclusion, and producing, in
effect, a reasonable and moral certainty, that the
accused, and no one else, committed the offense charged.'
"Commonwealth v. Webster. 5 Cush. 295, 319." Commonwealth v. Burke. 339 Mass. 521, 527. Id. 144

- 19 -

 II
IN THE ALTERNATIVE, THE TRIAL COURT
COMMITTED REVERSIBLE ERROR ENTITLING
THE DEFENDANT TO A NEW TRIAL
A.

Testimony by Prosecution Witness Detective Joseph W. Smith
Relative to Pre-trial Photo Identification of the Defendant
by Other Prosecution Witnesses was so Inflammatory as to
Outweigh its Impeachment Value and Admission was Improper.
While it is settled law in this state that evidence of a prior

extra- judicial identification may be offered to impeach a witness
who refuses to make an in court identification having previously
identified the Defendant, Commonwealth v. Swenson, 368 Mass. 268,
274 (1974), if photo identification procedures are so suggestive
as to impermissibly taint a witnesses' pre-trial identification,
or in-court identification offered for its probative value must be
suppressed unless supported by independent grounds.

Commonwealth

v. Moon, 380 Mass. 751 (1980), citing Commonwealth v. Story, 391
N.E.

2nd 898

(1979); Commonwealth v.

Venios.

389 N.E.

2nd 395

(1975) and Commonwealth v. Moynihan, 381 N.E.2d 575 (1978).
As

a

general

identification

rule,
is

the

test

of

constitutionally

whether

sufficient

a

photographic

is

whether

the

confrontation is unnecessarily suggestive so as to give rise to a
very

substantial

likelihood

of

mistaken

Commonwealth v. Moon, 380 Mass. 751 (Mass. 1980).
officers unnecessarily

identification.
While a police

suggestive remarks will not necessarily

affect the reliability of a witness in-person, a photo

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 identification

(assuming

opportunity to observe)

the

witness

has

had

Commonwealth v. Rilev,

an

adequate

530 N.E.2d 184

(Mass. App. Ct. 1988) rehearing denied 532 N.E.2d 690, 403 Mass.
1106 (Mass. App. Ct. 1988), a totality of the circumstances test
must be applied to determine whether procedures employed affected
reliability of the identification, Id. at P.E. 184.
this

analysis

should

be

on

the

witnesses

The focus of

attentiveness

and

opportunity to observe the perpetrator during the commission of the
crime.

Id. at 184.

Further,

if

a

witness

denies

having

made

a

pre-trial

identification and refuses to make an in-court identification, "the
evidentiary value of the prior identification is almost completely
dissipated."

Commonwealth v.

Swenson.

368 Mass.

268,

272 n.3

(1975) and attribution of a prior identification by the witness is
not substantively admis-sable to prove identification Commonwealth
v. Daye, 393 Mass. 55, 61 (1984).
20 Mass.

App.

testimony

Ct.

789,

concerning

a

795

-

Under Commonwealth v. Saminara.
799

witness's

(1985)
prior

admission of
identification

police
of

a

defendant for its probative value, when a witness was unable to
make an in-court identification and expressed uncertainty as to
having previously selected defendant's photograph, is improper.
In

the

instant

case,

the

Pina

and

Levine

photographic

identifications were, by their testimony, impermissibly suggestive
and both denied positively identifying Jones as the assailant at
these arrays.

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 Levine testified she was asked only to identify Darrell Jones,
not to identify the assailant, per se, and Pina testified that
under duress she looked at six photographs arrayed, eliminated
three depicting people she knew, and then by chance picked Jones'
photograph out of the three remaining.

Consequently, neither of

these pre-trial identifications can be considered conclusive as to
the identity of the shooter; the methods by which the arrays were
conducted leave grave doubt as to their reliability; and both
witnesses denied the accuracy of their prior identifications at
trial.

The limited opportunity these individuals each had to

observe the shooting (from a crowded car on a dark, rainy evening)
further

undercuts

the

reliability

of

the

photo

array

identifications and, under a totality of the circumstances test
both should be treated as impermissibly tainted; no independent
corroborating grounds existing to save them.
Premised

on

the

need

to

insure

credible

identification

testimony in cases where the Defendant has not had an opportunity
to confront, the Moon test is generally invoked when an objection
is made to probative introduction of an in-court identification
following

an

impermissably

suggestive

identification for its probative value.

pre-trial

photographic

The principal underlying

this rule is also appropriate here, however, where the reliability
of

pre-trial

identifications

is

questionable

and

impeachment

testimony drew attention to them.
In the instant case, both the Levine and Pina photo arrays

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 were arguably tainted and both women denied providing definitive
pre-trial photo identifications on the stand.

Under Saminara,

supra, Smith was therefore prevented from testifying probatively
as to their pre-trial identifications and, in response to a defense
objection,

the

Court

did

rule

his

testimony

admissable

for

impeachment purposes, only.
While limiting instructions were given in each instance, the
state of the evidence prior to Smith's testimony was such that the
jury's ability to disregard this testimony as probative on the
issue of identification is doubtful, however.
methods

used

in extracting

identifications

were overly

And,

because the

the Levine

and Pina

photographic

suggestive,

the validity of

identifications is highly suspect at best.

these

To allow Smith to

testify to them, even with a limiting instruction was, therefore,
highly inflammatory and under the circumstances of this case, more
prejudicial than probative.

In effect, by Smith's testimony, the

jury was likely to infer two concrete pre-trial identifications had
been made of Jones as the assailant when, in fact, the only such
identification directly in evidence was made by Stark, and she was
subsequently unable to make an in-court identification.
In practical terms, without Smith's testimony the prosecution
introduced through Stark a probative pre-trial photographic identification of Jones as the assailant, a second pre-trial identification by Perkins-Jones supplementing this with inconclusive testimony by four other prosecution witnesses.

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No in-court identifica-

 tions of Jones as the assailant were made.
with three

eyewitness

The defense countered

alibi witnesses placing Jones

in their

presence at or immediately after the shooting occurred and in
clothing different than that described by eye-witnesses.
With

Smith's

testimony,

the

jury

had

knowledge

of

two

additional pre-trial identifications, however. Given the authority
with

which

police

testimony

is

generally

received,

and

the

unlikelihood that a prophylactic limiting instruction could be
effective under

the circumstances, it is

fair

to assume that

Smith's testimony evened up the sides; and it may well have tipped
the

scale

against

Jones

during

deliberations.

Under

the

circumstances, admission, even for impeachment purposes, should be
deemed reversible and a new trial ordered.
CONCLUSION

For the foregoing reasons and consonent with this Court's
power under common law and Chapter 278, Sec. 33E, the judgment of
the Superior Court must be reversed to prevent a miscarriage of
justice and the case remanded for such relief as this Court deems
just and proper.
DARRELL JONES
By His Attorney,

J es S. Dilday, Esq.
G YER, BROWN & DILDAY
27 School Street, Suite 400
Boston, MA 02108
(617) 227-3470
BBO #124360
Date:

~t
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