11 Mass. App. Ct. 179 | Mass. App. Ct. | 1981
The defendant appeals from his convictions on indictments charging armed assault with intent to murder (G. L. c. 265, § 18) and assault and battery by means of a dangerous weapon, a pistol (G. L. c. 265, § 15A), and raises three issues which we discuss seriatim.
We first briefly summarize facts which could have been found by the jury. On the evening of October 24, 1979, James Marcella shot Edward Portelle within an hour after an altercation between the two. The defendant was with Marcella at the time of that altercation, but separated from him shortly thereafter. The defendant rejoined Marcella in the latter’s car and searched for Portelle, who was aware that they were looking for him. Later when their paths crossed, Portelle approached Marcella’s car and kicked the door at the driver’s side. Marcella rolled down the window of that door and shot Portelle. Portelle stumbled around the back of the car and the defendant, who was seated in the passenger’s seat, rolled down the window by his side, leaned back in his seat and in street language exhorted Marcella to “get” Portelle. Marcella then leaned across the defendant and shot at Portelle again.
1. A government witness, one Czaja, testified as to the shooting and described certain features and clothing of the passenger of the car from which shots were fired at the victim. After cross-examining the witness as to his observations, defense counsel sought to impeach the witness with a record of a conviction in 1977. The defendant was also permitted to show that the witness had been arrested on a charge of assault and battery with a dangerous weapon less than a month before trial, which charge was pending in a District Court at the time of trial. See Commonwealth v. Hogan, 7 Mass. App. Ct. 236, 240-242 (1979), S.C., 379 Mass. 190, 191 (1979).
Defense counsel then asked the witness, “Where are you presently residing?” The prosecutor’s objection was sus
2. Over the defendant’s objection the court admitted a transcript of Czaja’s testimony given in November, 1979,
Unless Czaja knew of the warrant he could hot have been “pressured” by it and there would have been no motive for
3. One Johnson, a prosecution witness, testified that he twice observed the defendant riding in the passenger’s side of Marcella’s car. He testified that he made his second observation about fifteen minutes before he heard what sounded to him like four firecrackers. Then the car in which he had observed the defendant riding came from the direction of the sounds. He also testified that he observed but “one head” in the car. The witness had given a statement to the police a short time after the shooting, which had been reduced to writing and signed by him. He was shown that statement by the prosecutor who was allowed to ask the following question regarding the witness’s observation of the car after the shooting: “Did you tell Detective O’Rourke that you saw [Marcella] driving the car with Joe [the defendant] in the front seat?” The witness answered, “Yes, I did.”
“[W]hen a witness is unable or unwilling to make an in-court identification, out-of-court identifications may be admitted as substantive evidence of guilt as long as the defendant’s due process and confrontation rights are satisfied.” Commonwealth v. Fitzgerald, 376 Mass. 402, 408 (1978), and authorities cited therein. We are of the opinion that the judge’s reliance on the foregoing principle in making his ruling was proper.
Defense counsel thoroughly cross-examined the witness and drew from him, among other things, the. statements that the version first given in his testimony on direct (that he saw only one person in the car) was the truth and that the signed statement referred to his observation of the defendant earlier that evening. The defendant argues error only on hearsay grounds. He does not contend that his constitutional right to confrontation was violated, but we note, nevertheless, that this cross-examination satisfied the defendant’s rights of confrontation. Commonwealth v. Fitzgerald, id. at 409.
Judgments affirmed.