Commonwealth v. Williams

764 N.E.2d 889, 54 Mass. App. Ct. 236, 2002 Mass. App. LEXIS 364
Massachusetts Appeals Court·Decided March 19, 2002·No. No. 00-P-605·Published·Cited by 11 cases

Opinion

Lenk, J.

After trial by jury, the defendant Aaron Williams was convicted on charges of distributing crack cocaine and of doing so in a school zone. On appeal, the defendant presents four claims: (1) the trial judge erred by refusing to provide jury instructions on identification, including the possibility of “hon[237] est but mistaken” identification; (2) the judge erred by failing to explain the intent element of the distribution offense; (3) the judge improperly used the sentence to punish the defendant for exercising his constitutional rights to testify and stand for a trial by jury; and (4) the Commonwealth failed to produce sufficient evidence that the alleged crime occurred within a school zone.

Background. A. Evidence.1 The Commonwealth’s case against the defendant consisted chiefly of the testimony of Boston police Officer Kenneth Hearns.2 While working in plain clothes on the evening of November 12, 1998, Hearns responded to a report of drug activity around 35-39 Mount Pleasant Avenue in the Roxbury section of Boston. There, the officer observed an adult male, whom he had never seen before, leave a building at 39 Mount Pleasant Avenue. He described the individual, whom he identified as the defendant, as having “unique feminine characteristics” and wearing a white T-shirt, a short brown leather coat, and large loop earrings. Stationed in an undercover vehicle, Hearns testified that he observed the defendant, with only occasional interruptions, for sixty to ninety minutes, and from as close as ten to fifteen feet.

Hearns eventually ventured out of his car to conduct a field investigation observation (HO), which would involve interviewing and identifying the defendant. He approached the defendant in a dead-end alley off Mount Pleasant Avenue, a locale known to the officer as a site for drug deals. The defendant called out to Hearns, “Hey boo! Hey boo! . . . They’re not down there anymore, the cops shot them down.”3 He also stated, “I have the flavor.” Instead of conducting an FIO as planned, Hearns [238] remained undercover to purchase drugs. Using recorded police department money, Hearns purchased individually wrapped rocks from the defendant, who retrieved the rocks from inside his mouth. Tests later established that the rocks were crack cocaine. The two parted ways once the deal was completed. Soon thereafter, Hearns fled the area when he confronted a female who identified him as a police officer.

The next day, Hearns left on a nine-day vacation. On November 30, about a week after returning to work, Hearns was patrolling the same area where, eighteen days earlier, he had initially encountered the defendant. Citing the gold loop earrings and the “unique feminine characteristics,” Hearns testified that he recognized the defendant as the same person who had sold him drugs on November 12. When the pair made eye-to-eye contact, the defendant turned around as if to walk away from the officer, but he ultimately turned back, walking past the officer with his head down. Hearns arrested the defendant, who, in addition to the aforementioned features, exhibited bad skin, short-cropped hair, and a black leather coat. When asked to verify his identification of the defendant, Hearns testified, “I know him when I see him.”

The defense was misidentification. Testifying on his own behalf, the defendant denied selling drugs to Hearns on the night in question. The defendant never visited Mount Pleasant Avenue before November 30, let alone on November 12. Though he could not recall specifically where he was on the evening of November 12, he thought perhaps that he had been at a movie. Regardless, “I know for a fact that I was nowhere on Mount Pleasant and Vine Street around ten thirty or ten o’clock that night.” The defendant has pierced ears, but testified that he does not own a brown coat. He also disputed Hearns’s characterization of his behavior on November 30: as he never made eye contact with the officer until he was accosted from behind and arrested, he never attempted to walk away or to cloak his face.

B. Closing arguments. Counsel for both parties addressed the issue of identification in their final arguments. Defense counsel argued that, while Hearns might be sincere in his belief that the defendant sold him drugs on November 12, he nonetheless was [239] mistaken. To buttress this theory, counsel outlined a few factors for the jury to use in considering the accuracy of the identification. The prosecutor defended the identification as credible, noting the officer’s substantial opportunity to observe the defendant, his field experience, the confidence of his assertion, and the defendant’s distinguishing characteristics, most notably the earrings. During her final argument, the prosecutor stated, “Officer Hearns properly identified this Defendant as the man who sold him undercover drugs on November 12th.”

C. Jury instructions. At the close of the evidence, the defendant submitted a proposed jury instruction on the topic of identification, which was adapted from a law review article but which contained citations to Commonwealth v. Rodriguez, 378 Mass. 296 (1979), and Commonwealth v. Pressley, 390 Mass. 617 (1983). The proposal asked in part that

“the court not give the standard Telfaire instruction which in Massachusetts is found in Rodriquez [sic] (and as modified by Commonwealth v. Fitzpatrick). Instead, the defendant requests the following instruction, in light of the growing number of courts disparaging the said Telfaire instruction.”

(internal citations omitted). The judge denied this request and refused to instruct on the issue. The defendant objected to the denial of his request for jury instruction. The judge did not thereafter instruct on identification, though he did instruct on witness credibility, appearing to track the main paragraph of the relevant model. See Model Jury Instructions for Use in the District Court, Instruction 2.07 (1995).

Discussion. A. Identification instruction. The defendant claims that the judge erred in refusing to provide identification instructions, including one on honest mistake. We agree.

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Commonwealth v. Williams, 764 N.E.2d 889, 54 Mass. App. Ct. 236, 2002 Mass. App. LEXIS 364 (Mass. Ct. App. 2002).

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