COMMONWEALTH vs. DENNIS M. DAYE.

SMITH, J. The defendant was indicted for the crimes of assault with intent to murder, assault by means of a dangerous weapon, and unlawfully carrying a firearm. He was tried in the Superior Court before a jury and convicted on the latter two indictments and, on the first indictment, of the lesser included offense of assault with intent to kill. He appeals, contending principally that the admission of certain evidence on the issue of identity deprived him of a fair trial. [Note 1] We agree with certain of those contentions and reverse the convictions.

The indictments were returned as a consequence of events that occurred during the evening of April 24, 1980, outside an entrance to the Squeeze Inn, a tavern in the city of Revere. Testimony at the trial indicated that the victim, who had been wrestling with another man on the sidewalk outside the tavern, was shot in the lower abdomen by a man who had emerged from the tavern, ordered the combatants to "go around the corner," and fired a shot from close range when the victim failed to heed his demand. The gunman, after commenting to a companion that "[the victim] didn't listen," entered an automobile, and with his companion, left the scene. There were numerous eyewitnesses to the incident.

The main issue at trial was the identity of the defendant as the gunman who had wounded the victim. The Commonwealth endeavored to prove identity through the testimony of the victim and some seven eyewitnesses, all but one of whom proved either unwilling or unable on the stand to identify the defendant as the gunman. [Note 2]

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In an effort to shore up its deteriorating proof on the issue of identity, the Commonwealth elicited testimony from one eyewitness that he had identified the defendant, by name, as the gunman during grand jury proceedings. The Commonwealth also called two police officers from Revere to offer testimony concerning various out-of-court identifications made by certain of the eyewitnesses. The judge specifically instructed the jury that it could consider that testimony as substantive evidence of the defendant's identity as the gunman. It is upon the admissibility of that evidence for substantive purposes that we are asked to rule.

1. Evidence of prior photographic identification. (a) Steven Ciambelli. The Commonwealth called as a witness Steven Ciambelli, who testified that he had been present outside the tavern when the victim was shot. He was never asked to make an in-court identification of the defendant as the gunman. The prosecutor did elicit from Ciambelli an answer that he had viewed photographs for the purpose of identifying "men that I [had] seen on the corner that night" and that he had selected one or two photographs. Ciambelli, however, steadfastly denied that the photograph or photographs he had selected represented a positive identification of the gunman. Indeed, when asked if his purpose in viewing the photographs was to identify the gunman, Ciambelli responded, "No, I didn't know what he looks like."

Subsequently, and over defense counsel's objection, the prosecutor obtained from William Gannon, a Revere police officer, testimony that on the day following the shooting, and in Gannon's presence, Ciambelli had, from an array of twenty-five photographs, positively identified a photograph of the defendant as the gunman.

We conclude that it was error to admit the testimony of Officer Gannon, particularly in light of the judge's specific

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instruction that the jury could consider that testimony as substantive evidence of the defendant's identity. See Commonwealth v. Swenson, 368 Mass. 268, 272 n.3 (1975); Commonwealth v. Furtick, 386 Mass. 477, 481 n.2 (1982); Commonwealth v. Amado, 387 Mass. 179, 188-189 (1982). While the admissibility, for substantive purposes, of third-party evidence of an out-of-court identification by a witness who disclaims that identification and also fails to make an in-court identification has never been decided in Massachusetts, the Supreme Judicial Court has considered the issue in each of the cited cases, leaving little doubt as to the inadmissibility of such evidence in a criminal trial. See, e.g., Commonwealth v. Swenson, supra: "If the police officer's testimony had been offered for substantive purposes . . . we would be faced with an even more difficult issue, since it can be said here that the witness . . . not only declined to make an in-court identification, but also disclaimed making an extrajudicial identification. In such a case, the evidential value of the prior identification is almost completely dissipated. Gibbs v. State, 7 Md. App. 35 (1969). Moreover, the constitutional right to confront one's accusers may be implicated in this situation [citations omitted]."

The Commonwealth's reliance on Commonwealth v. Torres, 367 Mass. 737 (1975), and Commonwealth v. Fitzgerald, 376 Mass. 402 (1978), is misplaced. In Commonwealth v. Torres the testimony of the victim concerning an identification of the defendant's voice during a prior hearing was held admissible for substantive purposes. But most important, that evidence was offered through the same witness who had made the prior identification, thereby preserving the defendant's right of cross-examination, id. at 739 n.2, and lending probative weight to the evidence of prior identification. Contrast Commonwealth v. Amado, supra at 188-189. Similarly, in Commonwealth v. Fitzgerald, supra, the witness, while unable to make an in-court identification, "affirmed that she had picked out photographs of [the defendants] . . . [and] could thus be cross-examined concerning her earlier identifications, and, in fact,

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. . . was vigorously and thoroughly cross-examined. . . ." Id. at 409. Commonwealth v. Weichell, 390 Mass. 62, 72 (1983).

By contrast, in the instant case the witness Ciambelli, on the witness stand, denied having made a prior identification. It is illogical to suggest that the mere fact of his presence on the stand afforded the defendant a genuine opportunity to cross-examine Ciambelli concerning an out-of-court identification he so unequivocally disclaimed. Wall, Eyewitness Identification in Criminal Cases 161-162 (1965). Cf. Commonwealth v. Swenson, supra at 272 n.3. Further, while assessing the credibility of evidence is ordinarily the province of the jury, Commonwealth v. Fitzgerald, supra at 410, and authorities cited, there can be little probative weight attributed to evidence of an identification offered through a third-party observer to the identification which the identifying witness, under oath, has disclaimed. See Gibbs v. State, 7 Md. App. 35 (1969), as cited in Commonwealth v. Swenson, supra at 272 n.3, and Commonwealth v. Amado, supra at 188-189.

(b) James O'Connor. At trial, James O'Connor, another eyewitness to the shooting incident, testified that he was unable to identify the gunman from among those people present in the courtroom. In contrast to the witness Ciambelli, however, O'Connor did testify that while viewing a photographic array at the Revere police station, he had selected a "couple of photographs" that he thought were photographs of the gunman. O'Connor's subsequent testimony, and that of Officer Gannon, clarified that the first photograph selected by O'Connor was of the defendant, whom O'Connor had unequivocally identified as the gunman at the time he viewed the photographic array. [Note 3] The testimony of both witnesses was admitted as substantive evidence of prior identification by O'Connor. The defendant would have us rule that, according to the principles discussed with reference

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to the witness Ciambelli, see part 1(a) supra, admission of that evidence for substantive purposes was error. [Note 4]

We disagree, and conclude that by his testimony O'Connor sufficiently adopted his prior photographic identification so that evidence concerning the circumstances and substance of the identification were properly admitted on the issue of identity. See Commonwealth v. Torres, 367 Mass. at 739; Commonwealth v. Fitzgerald, 376 Mass. at 408-409. As distinguished from the testimony offered by the witness Ciambelli, O'Connor testified without equivocation that he had viewed photographs for the specific purpose of identifying the gunman and that he had selected the photograph he thought to be of that person. Having offered such testimony, O'Connor could be, and was, cross-examined concerning the prior identification and the circumstances attending it. Id. at 409. See Gilbert v. California, 388 U.S. 263, 272 n.3 (1967). See also Fed.R.Evid. 801(d)(1)(C), and comments thereto, reprinted in Federal Rules, Evidence, at 211 (West 1982); 4 Wigmore, Evidence Section 1130 (Chadbourn rev. 1972), and authorities cited in Commonwealth v. Swenson, supra at 272 n.3. Because O'Connor failed to disclaim the accuracy of his prior identification, we cannot say that evidence of that identification was so lacking in reliability as to be inadmissible. See generally Commonwealth v. Fitzgerald, supra at 409-410; 4 Weinstein & Berger, Evidence par. 801(d)(1)(C)[01] (1981). Contrast Commonwealth v. Swenson, supra, and Commonwealth v. Amado, supra, citing Gibbs v. State, 7 Md. App. 35 (1969). The weight to be accorded that evidence was for determination by the jury. Commonwealth v. Fitzgerald, supra at 410, and cases cited.

2. Grand jury testimony. Faced by the failure or refusal by the witness Ciambelli to acknowledge any prior photographic

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identification of the defendant, see part 1(a), supra, the prosecutor interrogated Ciambelli concerning the substance of his testimony before the grand jury. From the outset, Ciambelli denied any degree of familiarity with his prior testimony, and it is evident from the record that the prosecutor did not confine his references to that testimony for the limited purpose of refreshing Ciambelli's recollection. Specifically, at one point the prosecutor quoted the following question from the transcript of the grand jury proceedings: "Who did you [Ciambelli] identify as the man with the gun?" Ciambelli, who was also reading from the transcript, responded that he had identified the defendant as the gunman before the grand jury. Ciambelli then hastened to discount his grand jury testimony as exaggerated, stating that it had no basis since he didn't know the defendant and had never seen him.

We conclude that it was error to permit the jury, without limiting instructions, to consider Ciambelli's grand jury testimony. See Commonwealth v. Bookman, 386 Mass. 657, 662-665 (1982). [Note 5] Although that decision raises doubts whether such evidence can be used for substantive purposes, id. at 664-665, it cannot, in any event, be used as past recollection recorded unless the transcription of that testimony was "adopted by the witness when the events were fresh in [his or] her mind." Id. at 664. Here, there was no indication that Ciambelli had adopted the transcription of his statements while his recollection was fresh. He expressly testified to the contrary, stating that the relevant portion of his grand jury testimony had been both exaggerated and inaccurate. In such circumstances, it is clear that the excerpts

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of Ciambelli's grand jury testimony should not have been allowed in evidence. [Note 6]

3. Disposition. On our review of the record, and particularly in light of the prosecutor's closing argument and the judge's instructions, which called special attention to evidence which should not have been admitted, we conclude that the errors committed were not harmless.

There was sufficient evidence, properly admitted, before the jury to withstand the defendant's motions for required findings of not guilty on each of the three indictments. For the reasons indicated, however, there must be a new trial.

The judgments are reversed and the verdicts set aside.

So ordered.