Commonwealth v. Weichell (1983)

Evid. 801 (d) (1) (A), permits probative use of inconsistent grand jury testimony, as well as other categories of inconsistent statements given under oath, in instances where “[t]he declarant testifies at the trial . . . and is subject to cross-examination concerning the statement.” Although we have declined to adopt the Proposed Rules as a whole, we have noted their value as a comparative standard for the common law evolution of our evidentiary law, see Commonwealth v. Weic…

The defendant argues that the motion judge erred in not suppressing the Identikit composite sketch because the police procedure used to create the sketch was suggestive under our opinion in Commonwealth v. Weichell, 390 Mass. 62, 68-73 (1983), cert. denied, 465 U.S. 1032 (1984).

The record shows that the Commonwealth offered Dunn’s testimony to establish a motive for the abuse. 6 The defendants concede (1) that, as a general rule, the Commonwealth is entitled to introduce all relevant evidence of motive, see Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 U.S. 1032 (1984); Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), cert. denied, 429 U.S. 1049 (1977); (2) that “Dunn’s testimony was not offered as evidence of acts committed …

See, e.g., Commonwealth v. Martinez, 431 Mass. at 175 ; Commonwealth v. Weichell, 390 Mass. at 72 (physical description and resulting composite drawing); Commonwealth v. Morgan, 30 Mass. App. Ct. 685, 690 (1991) (clothing).

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.

Thus, under Fitzgerald , two extrajudicial identifications were still required to be considered “in conjunction with other substantive evidence” of guilt to overcome a motion for required finding. 11 In contrast to the case at bar, where Willis, an “unwilling” witness, acknowledged having made an earlier identification, but at trial testified that the prior identification was not accurate, Commonwealth v. Torres, 361 Mass. 737, 738-739 (1975) (see note 6 supra), and Commonwe…

See, e.g., Commonwealth v. Brooks, 422 Mass. 574, 581 (1996); Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 U.S. 1032 (1984).

Accord Commonwealth v. Lowe, 391 Mass. 97, 106 , cert. denied, 469 U.S. 840 (1984) (victim’s state of mind); Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 U.S. 1032 (1984) (motive); Commonwealth v. King, 387 Mass. 464, 472 (1982) (common course or pattern of conduct); Commonwealth v. Gallison, 383 Mass. 659, 672-673 (1981) (same); Commonwealth v. Young, 382 Mass. 448, 463 (1981) (“entire relationship” between defendant and victim); Commonwealth v. Imbr…

Commonwealth v. Weichell, 390 Mass. 62, 71 (1983); id. at 87 (Liacos, J., dissenting).

The defendant cites Commonwealth v. Weichell, 390 Mass. 62, 68-73 (1983), cert. denied, 465 U.S. 1032 (1984), as authority for his contention that the written description should have been admitted.

These pieces of evidence, considered together and in the context of the location and manner of the victim's death, provided the jury with a sufficient foundation to reasonably infer that the victim made the defendant aware of her desire to end their relationship and for the defendant to move out of the apartment not long before the killing occurred.5 Compare 5 The Commonwealth asserts that additional hearsay statements -- testimony to the effect that the victim told her 20 F…

While in certain instances a description of a person’s characteristics, rather than an identification of a specific person, can constitute an identification for purposes of the aforesaid rule, see, e.g., Commonwealth v. Weichell, 390 Mass. 62, 72 (1983), cert. denied, 465 U.S. 1032 (1984) (approving admission of detailed facial description of perpetrator), the description here was simply too vague to qualify. iii.

In addition to testimony regarding the defendant’s physical characteristics, see Commonwealth v. Weichell, 390 Mass. 62, 72 (1983), cert. denied, 465 U.S. 1032 (1984), we have permitted descriptions of the weapon used by the defendant under this rule.

Id. at 170, quoting Commonwealth v. Weichell, 390 Mass. 62, 74 (1983), cert, denied, 465 U.S. 1032 (1984).

See Commonwealth v. Cong Duc Le, supra at 432 ; Commonwealth v. Weichell, 390 Mass. 62, 71-72 (1983), cert, denied, 465 Mass. 1032 (1984).

L. c. 233, § 79K, inserted by St. 1994, c. 168, § 1, permits the admission of a duplicate “computer data file or program file.” See Commonwealth v. Weichell, 390 Mass. 62, 77 (1983) (“best evidence rule does not apply to photographs”); Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294 (2006) (best evidence rule inapplicable to “digital images placed and stored in a computer hard drive and transferred to a compact disc”).

“As a general rule, the Commonwealth is entitled to introduce all relevant evidence of motive.” Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert, denied, 465 U.S. 1032 (1984).

As the Supreme Judicial Court observed in Commonwealth v. Fiore, 364 Mass. 819, 824 (1974), it is only when out-of-court utterances are offered “for a special purpose, namely, as assertions to evidence the truth of the matter asserted,” that they are hearsay. 14 Cf. Commonwealth v. Weichell, 390 Mass. 62, 72 (1983) (noting that one rationale for admitting a composite drawing of the suspect made by a witness before the trial is that such evidence is not a “statement” for purp…

Evidence of motive may be admitted if it “tends to establish the issue” or “contradicts a link in the chain of proof.” Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert, denied, 465 U.S. 1032 (1984), quoting Commonwealth v. Abbott, 130 Mass. 472, 473 (1881).

Commonwealth v. Weichell, 390 Mass. 62, 71 (1983), cert. denied, 465 U.S. 1032 (1984).

See United States v. Brink, 39 F.3d 419, 426 (3d Cir.1994); United States v. Moskowitz, 581 F.2d 14, 21 (2d Cir.1978); United States v. Marchand, 564 F.2d 983, 996 (2d Cir.1977); Adams v. State, 459 So.2d 999, 1002 (Ala.Crim.App.1984); Warren v. United States, 436 A.2d 821, 837 (D.C.1981); Morris v. United States, 398 A.2d 333, 338 (D.C. 1978); State v. Woodbury, 127 Idaho 757 , 905 P.2d 1066, 1068-69 (Ct.App.1995); Commonwealth v. Weichell, 390 Mass. 62 , 453 N.E.2d 1038, 1…

Such testimony may extend to out-of-court descriptions of a perpetrator’s physical characteristics, Commonwealth v. Weichell, 390 Mass. 62, 72 (1983), cert, denied, 465 U.S. 1032 (1984), or clothing, Commonwealth v. Morgan, 30 Mass. App. Ct. 685, 690 (1991).

See Commonwealth v. Daye, supra at 60-62 ; Commonwealth v. Weichell, 390 Mass. 62, 70-72 (1983), cert, denied, 465 U.S. 1032 (1984).

Commonwealth v. Weichell, 390 Mass. 62, 73 (1983) (“the Commonwealth is entitled to introduce all relevant evidence of motive”), cert. denied, 465 U.S. 1032 (1984).

Commonwealth v. Weichell, 390 Mass. 62, 74 (1983), cert, denied, 465 U.S. 1032 (1984).

Commonwealth v. Wilson, 427 Mass. 336, 349 (1998) (evidence which shows defendant’s state of mind found probative); Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 U.S. 1032 (1984) (‘‘the Commonwealth is entitled to introduce all relevant evidence of motive”); Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), cert. denied, 429 U.S. 1049 (1977) (“if there is evidence of motive, that evidence is'admissible”).

See Commonwealth v. Daye, 393 Mass. 55 , 60 n.8 (1984); Commonwealth v. Weichell, 390 Mass. 62, 71 (1983), cert. denied, 465 U.S. 1032 (1984).

See, e.g., Commonwealth v. Qualls, supra; Commonwealth v. Cyr, 425 Mass. 89, 94 (1997); Commonwealth v. Hunter, 416 Mass. 831, 837 (1994); Commonwealth v. Lowe, 391 Mass. 97, 105 , cert. denied, 469 U.S. 840 (1984); Commonwealth v. Weichell, 390 Mass. 62, 64, 73-74 (1983); Commonwealth v. Borodine, 371 Mass. 1, 7-9 (1976), cert. denied, 429 U.S. 1049 (1977).

“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 [the witnesses’] identifications.” Commonwealth v. Weichell, 390 Mass. 62, 76 (1983), cert, denied, 465 U.S. 1032 (1984).

“See Commonwealth v. Weichell, 390 Mass. 62, 71-72 (1983) (“Under the Federal Rules of Evidence and the Proposed Massachusetts Rules of Evidence [1980], a statement of prior identification is not hearsay if made by a witness who testifies at trial and is subject to cross-examination concerning it.

See Commonwealth v. Blaney, 387 Mass. at 634-635 ; Commonwealth v. Weichell, 390 Mass. 62, 75-76 (1983), cert. denied, 465 U.S. 1032 (1984); Commonwealth v. Francis, 391 Mass. 369, 374 (1984); Commonwealth v. Key, 21 Mass. App. Ct. 293, 295 (1985).

Because of the superior probative worth of an identification made closer in time to the events in question, Commonwealth v. Weichell, 390 Mass. 62, 71 (1983), cert. denied, 465 U.S. 1032 (1984), extrajudicial identifications have been accepted as substantive evidence, notwithstanding their hearsay attributes, even when the declarant cannot or does not identify the defendant at trial.

See Commonwealth v. Maltais, 387 Mass. 79, 93 (1982); Commonwealth v. Weichell, 390 Mass. 62, 78 (1983), cert. denied, 465 U.S. 1032 (1984); Venini v. Dias, 5 Mass. App. Ct. 695, 697 (1977).

Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert, denied, 465 U.S. 1032 (1984) (relevant evidence that indicates motive generally admissible).

The tapes, thus, “constitute[d] a link in the chain of proof.” Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), quoting from Commonwealth v. Abbott, 130 Mass. 472, 473 (1881).

See Commonwealth v. Daye, 393 Mass. 55, 60 (1984); Commonwealth v. Weichell, 390 Mass. 62, 71 (1983), cert. denied, 465 U.S. 1032 (1984); Commonwealth v. Fitzgerald, 376 Mass. 402, 409 (1978).

See Commonwealth v. Swenson, 368 Mass. 268, 272 (1975); Commonwealth v. Weichell, 390 Mass. 62, 71-72 (1983); Commonwealth v. Daye, 393 Mass. 55, 60 (1984).

In Commonwealth v. Gilbert, 366 Mass. 18, 24-25 (1974), we affirmed our holding in Devlin, supra. Recently we cited the Devlin case in stating that this court has not “utilized the Frye test to preclude the admissibility of novel scientific techniques or information developed by a particular expert witness utilizing accepted scientific instruments or theories.” Commonwealth v. Beausoleil, supra at 215 n.11. *571 See also Commonwealth v. Weichell, 390 Mass. 62, 83 (1982) (Lia…

Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 U.S. 1032 (1984).

See Commonwealth v. Lowe, 391 Mass. 97, 106 , cert. denied, 105 S. Ct. 143 (1984); Commonwealth v. Weichell, 390 Mass. 62, 74 (1983), cert. denied, 465 U.S. 1032 (1984); Commonwealth v. Borodine, 371 Mass. 1, 7-8 (1976), cert. denied, 429 U.S. 1049 (1977).

The defense has not taken proper account of Commonwealth v. Weichell, 390 Mass. 62, 72 (1983), cert. denied, 465 U.S. 1032 (1984), decided before the trial herein, which, in general accord with rule 801(d)(1)(C) of the Federal Rules of Evidence 2 and role 801(d)(1)(C) of the Proposed Massachusetts Rules of Evidence, holds admissible a statement of identification, here used to confirm an in-court identification, where the declarant is available for cross-examination, as Hanna…

Because Jaime’s testimony and the police officer’s testimony concerning Jaime’s pretrial identification at the officer’s request were admissible for probative purposes (see Commonwealth v. Weichell, 390 Mass. 62, 71 [1983], cert, denied, 465 U.S. 1032 [1984]), and Jaime was one of only two witnesses who identified the defendant, we cannot fairly say that admission of this identification evidence was harmless beyond a reasonable doubt.

Similarly, the statements which we held to have been admitted properly in Commonwealth v. Weichell, 390 Mass. 62, 64, 73-74 (1983), were statements of intent, or threats, appropriately characterized as within the state of mind exception to the hearsay rule.

Commonwealth v. Weichell, 390 Mass. 62, 72 (1983).

See Commonwealth v. Weichell, 390 Mass. 62, 77 (1983), cert, denied, 465 U.S. 1032 (1984) (best evidence rule not applicable to photographs). 6 Our view in this regard is consistent with that of other jurisdictions that have considered the question.

See Commonwealth v. Weichell, 390 Mass. 62, 77 (1983), cert, denied, 465 U.S. 1032 (1984), S.C., 446 Mass. 785 (2006); Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002) (“Photographs usually are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw”).

See Commonwealth v. Weichell, 390 Mass. 62, 77 (1983), cert. denied, 465 U.S. 1032 (1984) (“the best evidence rule does not apply to photographs”).

See Commonwealth v. Weichell, 390 Mass. 62, 74-75 (1983), cert. denied, 465 U.S. 1032 (1984), S.C., 446 Mass. 785 (2006).

See Commonwealth v. Weichell, 390 Mass. 62, 77 (1983), cert. denied, 465 U.S. 1032 (1984); Commonwealth v. Ames, 410 Mass. 603 , 605 n.3 (1991); Liacos, Massachusetts Evidence § 11.13.1, at 728 (7th ed. 1999).

See Commonwealth v. Weichell, 390 Mass. 62, 73 (1983), cert. denied, 465 Mass. 1032 (1984) (motive evidence admissible if it “tends to establish the issue” or “constitutes a link in the chain of proof”).