Commonwealth v. Clements , 51 Mass. App. Ct. 508 ( 2001 )

Dreben, J.

On January 30, 1995, Gregory Tillery was fatally shot on Harvard Street in the Dorchester section of Boston. At the crime scene, near the body, police found bullets and spent shell casings from both a nine millimeter and a .380 caliber weapon. The Commonwealth’s theory of the crime was that the defendant and one Kenneth Mattox were the culprits. Both men were charged with murder, armed assault with intent to murder, and possession of a firearm without a license. After a joint trial, Mattox was acquitted on all charges, but the defendant was convicted of second degree murder as a joint venturer, of armed assault with intent to murder as a principal,² and illegal possession of a firearm. In his appeal from his convictions and from the denial of his motion for a new trial, the defendant raises numerous claims, including: (1) it was error to admit the grand jury testimony of a witness, Sakoya Willis, as substantive evidence without meeting the requirements for such admission as set forth in Commonwealth v. Daye, 393 Mass. 55, 74-75 (1984); (2) the defendant’s conviction of second degree murder as a joint venturer cannot stand in view of Mattox’s acquittal of that charge; and (3) the judge committed several errors in regard to the jury’s deliberations. We affirm the defendant’s convictions.

1. Admissibility of grand jury testimony and sufficiency of identification evidence. Since the sufficiency of the evidence identifying the defendant as one of the assailants depends on the admissibility of the grand jury evidence of Sakoya Willis, the only known eyewitness to the shooting, we will first focus on that issue leaving other relevant facts to the discussion of the defendant’s remaining claims.

At trial, Willis, a friend of Gregory Tillery, testified as follows. In January, 1995, Willis “hung out” and sold drugs with Tillery on Harvard Street. Other persons also sold drugs in the same area, including the defendant and Mattox, who were often together. Willis had known the defendant since childhood, but at the time of the incident some problems had arisen between him and the defendant.³ On the afternoon of the fatal shooting, Willis, Tillery, the defendant, and Mattox spent considerable time on Harvard Street. At one point the defendant and Willis exchanged certain “looks,” and the defendant left the scene. Soon thereafter, Mattox walked by Willis and Tillery singing a portion of “Scar Face,” a song which Willis knew was about a “guy’s best friend dying.” After hearing the verse, Willis and Tillery moved away from Mattox along Harvard Street in the direction of Greenwood Street.

Later that evening, at about six o’clock, while Willis was standing near the corner of Harvard Street and Greenwood Street with Tillery next to him on a bike, somebody started shooting at them from Harvard Street at a distance of about ten feet. Willis did not recognize the attacker, a male whom he described as being about six feet tall, wearing a “hoodie,” and holding what looked like a silver .380 caliber automatic.

Upon hearing the shots — approximately four in number — Willis ducked behind a car but was pursued by the attacker. When the shooting stopped, he turned around and saw the attacker about ten feet behind him on Harvard Street. He appeared to be cocking his gun trying to unjam it. A “couple of seconds” after Willis saw his pursuer, he heard four or five more gunshots. He then ran home via Standish Street,⁴ crossing a railroad bridge. From the top of the bridge he saw two people running but could not identify them.

When pressed by the prosecutor, Willis acknowledged that prior to trial, at a police station on March 9, 1995, he had, at the behest of Tillery’s family, identified the defendant as the assailant from an array of eight photographs, and had dated and signed his name on the back of the photograph. He also acknowledged that he had given a taped statement to the police and that he had identified the defendant as the shooter when he testified before the grand jury in November, 1996. Willis admitted that his memory was better at the time he had spoken to the police and made the identification. At that time he thought it was the defendant who started shooting at him and the victim. He thought he was telling the truth both when he went to the police in March and when he subsequently testified to the same effect before the grand jury in November, 1996. He stated, “Originally, I thought it was Mr. Clements; but I’m not absolutely sure. It was dark.”

Although Willis testified that he did not see anyone with the defendant, when confronted with his grand jury testimony, he acknowledged that he had testified before the grand jury that Mattox had been with the defendant at the time of the shooting, and that from the railroad bridge he had seen the defendant and Mattox running down Standish and taking a right on a street parallel to Harvard Street.

The photograph of the defendant, acknowledged by Willis as having been identified by him as the assailant, was admitted as an exhibit at trial. See Commonwealth v. Daye, 393 Mass. at 61 & n.9. See also Proposed Mass.R.Evid. 801(d)(1)(C).

At the conclusion of Willis’s testimony, over objection, the judge permitted the Commonwealth to read to the jury excerpts of Willis’s grand jury testimony that were inconsistent with his testimony at trial.⁵ The jury were instructed that they could treat the grand jury testimony as substantive evidence.

We turn to the pivotal case of Commonwealth v. Daye, 393 Mass. 55 (1984). Before that decision, “prior inconsistent statements [including grand jury testimony under oath], though admissible for the limited purpose of impeaching the credibility of a witness’s testimony at trial, [were] inadmissible hearsay when offered to establish the truth of the matters asserted.” Id. at 66. In Daye, the Supreme Judicial Court altered the traditional rule but imposed certain limitations. It summarized its decision as follows:

“[W]e hold that a prior inconsistent statement is admissible as probative if made under oath before a grand jury, provided the witness can be effectively cross-examined as to the accuracy of the statement, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented.”

Id. at 75.

Daye also recognized that, apart from the issue of admissibility, there is a separate question whether the evidence, viewed as a whole, is sufficient for the Commonwealth to meet its burden of proof. In Daye, where, as here, the grand jury testimony related to the central issue of identification, the court noted:

“[W]e will not permit convictions based exclusively on inconsistent extrajudicial testimony to stand. See California v. Green, [399 U.S. 149,] 170 & n.19 [1970]. In this case the Commonwealth must produce identification evidence in addition to a prior inconsistent statement in order to meet its burden of proof.” ⁶

Id. at 74.

More recently, in Commonwealth v. Sineiro, 432 Mass. 735 (2000), the court, after reiterating the conditions for admission set by Daye, explained that when the grand jury testimony concerns a central issue of the case, corroboration relates not only to the question of admissibility but also to that of sufficiency. This is implicit in the following excerpt from Sineiro at 741-742:

“In Daye, we held that prior inconsistent testimony by a witness before a grand jury, under certain conditions, could be admitted as substantive evidence. [393 Mass.] at 75. In so holding, we adopted the principles of Proposed Mass. R. Evid. 801 (d)(1)(A). We set forth three general requirements for the use of such grand jury testimony: (1) there must exist an opportunity for effective cross-examination of the witness at trial; (2) the witness’s statement must clearly be that of the witness, rather than the interrogator, and be free from coercion; and (3) some corroborative evidence must be presented. See id. at 73-75. See also Commonwealth v. Berrio, 407 Mass. 37, 45 (1990). With reference to corroboration, we held in Commonwealth v. Noble, 417 Mass. 341 (1994), that, when the prior inconsistent grand jury testimony concerns an essential element of the crime, the Commonwealth must offer at least some additional evidence on that element in order to support a conclusion of guilt beyond a reasonable doubt. Id. at 345 (adopting test set forth in United States v. Orrico, 599 F.2d 113, 119 [6th Cir. 1979]).[⁷] The additional evidence, however, need not be sufficient in itself to establish a factual basis for each element of the crime. Id. at 345 n.3.” (Emphasis supplied.)

We consider that the requirements of Daye both as to admissibility and sufficiency have here been met. The first two requirements of admissibility need not detain us. Although the defendant argues that Willis was unavailable for cross-examination as to the accuracy of his grand jury statements because portions were read to the jury after Willis left the stand, the claim is without merit. Not only did the defendant fail to object on this ground until the next trial day, he also did not move to have Willis recalled. More important, prior to the reading, Willis had been thoroughly examined on the subject matter of the grand jury statements that were read to the jury.

The defendant also claims that, since Willis testified at trial that he was influenced by Tillery’s family (he admitted he had not been coerced) and had made his pretrial identifications because of rumors and secondhand information, the pretrial identifications were not those of Willis, but of unnamed third persons and should not have been admitted. See Daye, supra at 73 n.18. Willis, however, asserted to the grand jury that he saw the defendant shoot at him and Tillery. Only at trial did he claim that the identification was based on secondhand reports. Whether to give credence to the pretrial identifications or to his later disavowal was a determination for the jury. Commonwealth v. Noble, 417 Mass. at 347.

In discussing the third Daye requirement in terms of admissibility, leaving aside for the moment the question of sufficiency, it may be helpful to note that here, as in Daye, supra, two discrete sections of Proposed Mass.R.Evid. 801(d), are involved. Rule 801(d) in relevant part provides:

“(d) Statements which are not hearsay. A statement is not hearsay if —

“(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(A) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

(C) one of identification of a person after perceiving him ... .”

Section 801(d)(1)(A), as discussed earlier, was first adopted by Daye, while 801(d)(1)(C) is of longer standing and is “a rule consistent with our cases governing probative use of extrajudicial identifications.” Daye, supra at 61 n.9. Admitted under the latter section, Willis’s out-of-court photographic identification was an exhibit at trial and constituted substantive evidence, having probative value, even though Willis was unable or unwilling to make an in-court identification. Commonwealth v. Torres, 367 Mass. 737, 739 & n.2 (1975). Commonwealth v. Fitzgerald, 376 Mass. 402, 408-409 (1978). Commonwealth v. Vitello, 376 Mass. 426, 458-459 (1978). Commonwealth v. Weichell, 390 Mass. 62, 71-72 (1983), cert. denied, 465 U.S. 1032 (1984). Commonwealth v. Daye, 393 Mass. at 61.

Willis’s photographic identification serves in this case as the additional evidence needed for purposes of permitting the admission of Willis’s grand jury testimony and, when considered together with the grand jury testimony, was sufficient to warrant submission of the issue of identification to the jury. The reliability of the photographic identification must, of course, be the criterion for both purposes. See, e.g., People v. Cuevas, 12 Cal. 4th 252, 268-269 (1995).

The circumstances of the identification suggest reliability. The defendant was known to Willis, who had grown up in the neighborhood with him. The shooter was, according to Willis’s trial testimony, only approximately ten feet away when Willis first saw him, and Willis could see the gun sufficiently clearly to believe that it was a .380 automatic. Bullets and a discharged casing from a .380 semiautomatic⁸ were found near the victim’s body.

The reliability of the photographic identification evidence must also be considered in the context of Willis’s unwillingness or inability to identify the defendant at trial. Willis was a most reluctant witness and, it could be concluded, a fearful one.⁹ His fears may have been exacerbated by the bad blood between him and the defendant and the recognition that, at trial, he would have to face the defendant.¹⁰

Additional support for the reliability of Willis’s identification came from Detective John McCarthy of the homicide unit of the Boston police department who had interviewed Willis at the police station on March 9, 1995. McCarthy testified that Willis had picked out the defendant from an array of eight pictures as the man who tried to shoot him and had, at McCarthy’s direction, signed his name on the back of the photo. The testimony of Detective McCarthy concerning Willis’s extrajudicial identification to which there was no objection was also substantive evidence admissible for its probative value. Commonwealth v. Daye, 393 Mass. at 60 n.8. But see Commonwealth v. Amado, 387 Mass. 179, 186 (1982).

The reliability of a pretrial identification has been repeatedly emphasized by the Supreme Judicial Court and is “regarded as having equal or greater testimonial value than one made in court . . . .” Commonwealth v. Torres, 367 Mass. at 739. Commonwealth v. Weichell, 390 Mass. at 71. Not only is such an identification closer in time to the criminal incident when the witness’s memory is fresher, but it is also made before intervening events may have influenced the witness to testify falsely.¹¹ See Daye, supra at 71. See also the dissent of Justice Liacos in Commonwealth v. Weichell, supra at 87, where he states: “[T]he extrajudicial identification is as probative of the defendant’s guilt as an in-court identification, in both practical and legal effect.”

There is even strong indication in our cases that an extrajudicial identification, such as the photographic one in this case, would alone be enough to withstand a due process violation claim that there was insufficient evidence of identification. See Jackson v. Virginia, 443 U.S. 307, 316 (1979). Thus, in Commonwealth v. Torres, 367 Mass. at 738 n.l, the court stated, “Although it is not essential to our decision [that is, the voice identification alone would be enough] we note that there was strong circumstantial evidence of the defendant’s guilt” (emphasis supplied). In Commonwealth v. Vitello, 376 Mass. at 461, the court, noting that there was authority to the contrary (People v. Gould, 54 Cal. 2d 621, 631 [1960], which as indicated in note 13, infra, was subsequently overruled), stated: “[W]e think that an extrajudicial identification may in an appropriate case provide a jury with a sufficient basis upon which to find a defendant guilty beyond a reasonable doubt.” See also Commonwealth v. Fitzgerald, 376 Mass. at 410 n.5, which left open the question whether such an identification would in itself be sufficient; Commonwealth v. Weichell, 390 Mass. at 72 n.8, where the court pointed out: “Although sufficient evidence of reliability exists to permit the introduction of the composite [drawing] in this case, we would not, at this time, sustain a conviction where such a composite constituted the only evidence of identification, absent a more general acceptance of such evidence or a greater demonstration of its reliability.” Fitzgerald and Weichell suggest at least the possibility that an extrajudicial identification based on photographic identifications alone would suffice. Torres indicates that voice identification alone would be enough.¹² See Commonwealth v. Mendrala, 20 Mass. App. Ct. 398, 400-402 (1985) (spontaneous utterance sole evidence of identification).

Numerous cases elsewhere, cited in the margin, permit extrajudicial identification evidence, if deemed reliable, to be the sole identification evidence against the defendant when the recanting or nonrecollecting witness testifies at trial and is subject to cross-examination.¹³

As Judge Learned Hand observed in DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.), cert. denied, 268 U.S. 706 (1925), (and noted by Justice Greaney in Commonwealth v. Sineiro, 432 Mass. at 744):

“The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that file case must be decided only in accordance with the truth of words uttered under oath in court.”

In sum, we hold that (1) the prior photographic identification evidence meets the Daye requirement of admissibility — “other evidence tending to prove the issue,” see Daye, supra at 75; and (2) together with the grand jury testimony which strongly implicated the defendant, the prior identification provided sufficient evidence to sustain the Commonwealth’s burden of proof on the issue of identity.

2. Sufficiency of evidence of joint venture. The verdict slip, at the instance of the trial judge, asked the jury to determine, if they found the defendant guilty of murder, whether such guilt was as principal or by reason of joint venture. As indicated earlier, they found the defendant guilty of second degree murder as a joint venturer and found Mattox not guilty. Before we reach the defendant’s claim that Mattox’s acquittal precludes the defendant’s conviction as a joint venturer, we must consider the dissent’s claim that there was insufficient evidence to convict the defendant as a joint venturer. Although the issue was not specifically raised by the defendant on appeal,¹⁴ a conviction based on insufficient evidence is inherently serious enough to create a substantial risk of a miscarriage of justice. Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).

Viewing the evidence in the light most favorable to the Commonwealth, we consider the evidence sufficient for a jury to find a joint venture under the standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). See, e.g., Commonwealth v. Noble, 417 Mass. at 343 n.l. Two guns were involved in the incident; spent bullets and casings from both a nine millimeter and a .380 caliber gun were found at the crime scene. Tillery was shot by the nine millimeter gun. Three bullets entered his chest, two of which had an upward movement. Since the exit wounds from those bullets had abrasions, the medical examiner found they were consistent with his being shot while lying on the ground. The only witness who testified to the location of the body immediately after the shooting said that Tillery was facing Glenway Street (that is his feet were toward Glenway),¹⁵ and that Greenwood Street was behind him.¹⁶ The direction Tillery was facing is important because, if he had been shot from the direction of Greenwood Street, the bullets to his chest would not have had an upward direction. The witness also testified that there were two series of shots, some forty-five seconds apart. This is significant because the short span of time between the two series of shots, which came from two separate guns, warrants the inference that they were fired by two different people.¹⁷ Willis’s grand jury testimony, indeed, placed two people at the scene and stated that Mattox and the defendant were together at the time of the shooting and ran away together. We conclude there was sufficient evidence for the jury to determine beyond a reasonable doubt that the defendant was a participant in a joint venture. See Noble, 417 Mass. at 343 n.l.

We also reject the defendant’s claim that the verdict of acquittal of Mattox and the verdict of guilty as to the defendant on the theory of joint venture are inconsistent verdicts which require reversal of the defendant’s conviction of second degree murder. Each defendant was tried both on the theory of individual liability and joint venture. As stated in Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 341 (1999):

“ ‘[M]ere inconsistency of verdicts does not render a guilty verdict erroneous.’ [Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 235 (1991).] Further, where the evidence against one defendant ‘appears to be more substantial and persuasive’ than the evidence against the other defendants, the joinder of several defendants at trial for the same crime does not require that either all or none of the defendants be found guilty. Commonwealth v. Connearney, 359 Mass. 200, 202-203 (1971). Here, the evidence against the defendant was considerably stronger and more persuasive than it was with regard to [Mattox].”

See Commonwealth v. Cohen, 412 Mass. 375, 380-381 (1992); Commonwealth v. Drumgold, 423 Mass. 230, 254 (1996).

3. Other claims of the defendant, (a) Contrary to the defendant’s claim that the evidence indicating he sold drugs on the comer of Harvard and Greenwood streets was inadmissible, this testimony, which was not objected to by the defendant, was relevant to show hostility between the defendant (and Mattox) and Tillery (and Willis), all four of whom were selling drugs and may have been fighting over turf. Even if the admission of such evidence were deemed error, it is highly unlikely that such evidence would have affected the jury in determining whether a far more serious crime — murder — had been committed by the defendant, particularly where, as here, the principal witness for the Commonwealth was also selling drugs. Since the defendant failed to object to the evidence, our standard of review is whether there was a substantial risk of a miscarriage of justice. There was no such risk.

(b) The defendant’s argument that G. L. c. 234, § 34,¹⁸ was violated is incorrect as there was not a second jury deadlock. In view of the complexity of the case, the multiple charges against the two defendants, and the sixteen witnesses and over fifty exhibits, the judge could well have determined that six hours of deliberations were not “due and thorough.” See Commonwealth v. Valliere, 366 Mass. 479, 496 (1974).

(c) Contrary to the defendant’s contention, the trial judge did not invade the autonomy of the jurors’ deliberations. After the judge received a note from the jury indicating that one of the jurors allegedly had made a biased statement, the judge properly conducted an individual voir dire with each juror. See Commonwealth v. Laguer, 410 Mass. 89, 97 (1991). After finding no bias, she ordered the jury to continue with their deliberations.

During the course of the voir dire, the judge learned that eleven jurors favored conviction while one juror favored acquittal. The defendant argues that the judge’s directive to the jury to continue deliberations may have been interpreted by the jury as an implicit endorsement of the majority position over the one juror who favored acquittal. See Commonwealth v. Gonzalez, 28 Mass. App. Ct. 10, 14-15 (1989).

The record shows no impropriety by the judge. The transcript indicates that she was not coercive, did not attempt to influence their judgment, and in no way intimated to the jurors that she agreed or disagreed with their positions. She merely informed the jurors that she had found no evidence of juror bias and that they should continue to deliberate.

(d) The absence of the defendant during the judge’s questioning of the jury on the claim of bias — his counsel was present — does not in this case constitute reversible error. Although the defendant had a constitutional right to be present, no objection was raised by defendant’s counsel. The review is, therefore, under the substantial risk of a miscarriage of justice standard. Commonwealth v. Caldwell, 45 Mass. App. Ct. 42, 48 (1998). Even if the Commonwealth is required to meet the highest standard, that is, to show that the error was harmless beyond a reasonable doubt, the record shows the Commonwealth met that burden. The transcript indicates that the defendant was represented zealously by counsel, and nothing suggests that there would have been any difference in counsel’s actions or the judge’s rulings had the defendant been present. See Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 635 & n.5 (2000).

Judgments affirmed.

Order denying motion for new trial affirmed.

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2 The charge of armed assault with intent to murder was based on an assault against Sakoya Willis, the major witness at trial.

3 When asked what the problem was, Willis answered, “I don’t know what it was over, actually. Stupidness, basically ... It was, I guess, drugs, maybe.”

4 On one side of Harvard Street the perpendicular intersecting street is called Standish Street and on the other side of Harvard Street it is called Greenwood Street. See appendix.

5 The following is the major portion of Willis’s grand jury testimony that was read to the jury..

Q.: “When you say ‘someone came walking in the middle of the street,’ who came walking in the middle of the street?”

A.: “ ‘Jay.’ ”

Q.: “Jason Clements?”

A.: “Yes.”

Q;. “Was he headed towards you?”

A.: “Yes.”

Q.: “When you saw Jason Clements back on the street, how far away from you was he the first time you saw him?”

A.: “I’d say about here to that chair over there.”

Q.: “You’re indicating about 20 feet, for the record?”

A.: “Yes.”

Q.: “Was he walking towards you?”

A.: “Yes.”

Q:. “Where was Gregory Tillery in relation to where you were?”

A.: “He was standing right next to me.”

Q.: “What happened as you saw Jason Clements walking towards you?”

A.: “He took a quick turn, pulled out a gun, and started shooting.”

Q.: “How far was he from you and Gregory Tillery when he started shooting?”

A.: “Like maybe from here to that table.”

<2.: “Ten feet?”

A.: “I don’t even think it was that far.”

Q.\ “Did you see the gun?”

A.: “Yes.”

Q.: “What did it look like?”

A.: “Silver. Like a .380 chrome.”

Q.: “What happened when he pulled it out?”

A.: “He pulled it out, started shooting, and I ducked behind the car at the comer.”

Q.\ “What direction was he shooting in?”

A.: “Towards us. Towards me.”

Q.: “And towards Gregory Tillery?”

A.: “Yes. I got up. And, by the time I was getting up to ran, he was behind me.”

Q.: “Who was behind you?”

A.: “Jason.”

Q.: “And what happened?”

A.: “He chased me across the street.”

Q.: “And what happened next?”

A.: “He was trying to shoot, but the gun was jammed because it was a

Q.: “How much time has passed between the time you saw Jason Clements trying to cock the gun and the time you heard the next round of shots?”

A.: “Minute, if. Maybe not even a minute.”

Q.: “How far was Kenneth Mattox from where Jason Clements was when Jason Clements open fired?” [szc],

A.: “Not even as far as just standing to that chair. Not even that far. Real close.”

Q.: “Less than 20 feet?”

A.: “Yes.”

Q.: “And the two people that you saw leave the area, who were they?” A.: “It looked like ‘Jay’ and Kenneth.”

Q.: “And were they together? Were they running in the same direction?”

A.: “Yes.”

Q.: “How far apart were they from each other?”

A.: “They was right next to each other, running down the street.”

6 As will be discussed later in this opinion, we do not view the photographic identification, which was admissible as substantive evidence prior to Daye, under Proposed Mass.R.Evid. 801(d)(1)(C), as being within the meaning of “a prior inconsistent statement” as used in the quotation. Daye, in using that term, was, in our view, referring to a statement under Proposed Mass.R.Evid. 801(d)(1)(A), such as the grand jury testimony.

7 Although the distinction between the admissibility of grand jury evidence and its sufficiency is not always clearly delineated in our cases, that the two are separate issues is evident from the adoption by the Noble court of the test for sufficiency set forth in Orrico. In Orrico, 599 F.2d at 116, the court specifically stated: “We decide the issue of sufficiency of the evidence, rather than admissibility, because the former issue is determinative of the question whether Orrico may be retried.”

8 The terms “semiautomatic” and “automatic” were used interchangeably at trial by the Commonwealth’s ballistics expert.

9 Asked if he was nervous about testifying, he answered: “No. I mean, yeah. Of course I’m nervous.” In response to the question whether he was concerned about his safety, he responded, “Yeah. Somewhat • — .”

10 In July, 1995, “Scarface,” the song about a “guy’s best friend dying,” which had previously been sung by Mattox to Tillery and Willis, was again sung to Willis by the defendant, causing what he described at trial as an incident at the Dorchester courthouse. Willis’s grand jury testimony read at trial was more detailed. There, Willis stated that the defendant followed him out of the courthouse and, when asked why he was following him, said: “He never seen a man cry until he seen a man die.” At that point Willis punched the defendant in the face.

11 In discussing the desirability of adopting Rule 801(d)(1)(C), a provision originally not included in the Federal Rules of Evidence, S. Rep. No. 94-199, 94th Cong., 1st Sess. 2 (1975), stated: “Since these identifications take place reasonably soon after an offense has been committed, the witness’ observations are still fresh in his mind. The identification occurs before his recollection has been dimmed by the passage of time. Equally as important, it also takes place before the defendant or some other party has had the opportunity, through bribe or threat, to influence the witness to change his mind” (emphasis supplied). See Commonwealth v. Sineiro, 432 Mass. at 742-743 & n.7, discussing the turncoat witness.

12 Although it is trac as pointed out by the dissent, that in some of our cases the prior extrajudicial identifications were not disavowed, the whole tenor of the Daye and Sineiro decisions is to focus on prior inconsistent statements or identifications where the witness recants or feigns lack of memory at trial.

13 See, e.g., People v. Cuevas, 12 Cal. 4th 252, 275-277 (1995) (two witnesses’ extrajudicial statements to police identifying defendant, together with photo identification by one witness, held sufficient despite recantation; Cuevas overruled People v. Gould, 54 Cal. 2d 621 [1960] [noted in Commonwealth v. Vitello, supra], which held out-of-court identification without other evidence insufficient); State v. Newsome, 238 Conn. 588, 618 (1996) (signed sworn statement given to police held sufficient despite recantation); Acosta v. State, 417 A.2d 373, 377-378 (Del. 1980) (out-of-court statements of two children to police and stepfather that they had to perform fellatio on the defendant but denied at trial held sufficient; convictions, however, reversed because fair trial required special instruction as to care required before convicting solely on the out-of-court statement inconsistent with victims’ in-court testimony); Weeks v. State, 187 Ga. App. 307, 308 (1988) (conviction for molestation of defendant’s stepdaughter upheld on the basis of prior inconsistent statement alone); Bedford v. State, 293 Md. 172, 174-185 (1982) (extrajudicial photographic identifications by two witnesses sufficient although witnesses later unable to identify defendant); People v. Chavies, 234 Mich. App. 274, 288-290 (1999), cert. denied, 531 U.S. 841 (2000) (statements to police matched by grand jury testimony of two witnesses sufficient, although both at trial claimed no recollection); State v. Mancine, 124 N.J. 232, 256 (1991) (in dictum court indicated criminal charge may be proven through prior inconsistent statement alone, provided statement made under circumstances supporting its reliability); People v. Fratello, 92 N.Y.2d 565, 572-574 (1998), cert. denied, 526 U.S. 1068 (1999) (excited utterance, only evidence of identification, held sufficient despite recantation); State v. Hendrix, 50 Wash. App. 510, 514-516 (1988) (extrajudicial identification sufficient although witness unable to identify defendant at trial; might be different if witness considered she had been mistaken). See also Ticey v. Peters, 8 F.3d 498, 503-504 (7th Cir. 1993) (rape victim identified the defendant as her attacker at hospital and again three days later, held sufficient although witness unsure at trial). Contra, see, e.g., United States v. Orrico, 599 F.2d 113, 117-118 (6th Cir. 1979) (testimony of two witnesses offered pursuant to two separate exceptions to hearsay rule — past recollection recorded and prior inconsistent grand jury testimony — held insufficient where both witnesses professed lack of memory, so that cross-examination, in effect, impossible); Brower v. State, 728 P.2d 645, 646-648 (Alaska Ct. App. 1986) (uncorroborated grand jury evidence insufficient where recanted at trial); State v. Moore, 485 So. 2d 1279, 1281 (Fla. 1986) (prior inconsistent statements of two witnesses at grand jury, recanted in sworn depositions alone insufficient); State v. Pierce, 906 S.W.2d 729, 733-737 (Mo. Ct. App. 1995) (extrajudicial statement alone identifying defendant, recanted at trial, insufficient); State v. Pinkerton, 270 Mont. 287, 292-293 (1995) (dismissal reversed, court indicating that prior inconsistent statement standing alone insufficient, but corroborated prior inconsistent statement may suffice); State v. Robar, 157 Vt. 387, 395-396 (1991) (inquest testimony alone insufficient where witness claimed no recollection at trial).

14 At trial the defendant filed a motion for a required finding of not guilty on the basis that there was insufficient evidence of joint venture, but he did not repeat this argument on appeal. The evidence relating to Mattox was for the most part contained in Willis’s grand jury testimony. Neither at trial nor on appeal did the defendant raise an objection to the admission of the grand jury testimony concerning Mattox.

15 Glenway Street intersects Harvard Street and is one street away from and parallel to Greenwood Street. See appendix.

16 This was consistent with the witness’s testimony that she was facing a laundromat on Harvard Street and shook Tillery’s right shoulder.

17 The dissent suggests that it is equally possible that the defendant fired both the nine millimeter gun and the .380. Her theory is that the nine millimeter weapon jammed at the comer of Greenwood and Harvard Streets, and that after the gun became functional, the defendant shot Tillery again with the nine millimeter. This scenario would have the defendant running back along Harvard Street toward Glenway Street, passing Tillery’s body, turning around toward Greenwood Street and then shooting him within the “couple of seconds” that elapsed between the time Willis saw his pursuer trying to unjam ' his gun and the time he heard the shots. Testimony indicated the shots were not fired from close range.

18 General Laws c. 234, § 34, provides: “If a jury, after due and thorough deliberation, return to court without having agreed on a verdict, the court may state anew the evidence or any part thereof, explain to them anew the law applicable to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law."