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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Thornley, 400
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert J. Schilling,
Stephanie Martin Glennon, Asst. Dist. Atty., for
Com.
Before [400
HENNESSEY, Chief Justice.
The
defendant, Ronald Thornley, was found guilty by a jury in Superior Court of
assault with intent to murder and assault and battery by means of a dangerous
weapon. Prior to trial, the defendant
filed a motion to suppress identification testimony regarding an
"Identikit" composite sketch, a photographic array, and a lineup in
which the defendant participated, claiming that the identification procedures
were unnecessarily and unconstitutionally suggestive under both the Federal and
State Constitutions. That motion was
denied. Following trial, the defendant
filed a motion for a new trial, alleging that prosecutorial misconduct had
deprived the defendant of a fair trial.
This motion was also denied. The
defendant appealed and we transferred the case to this court on our
motion. We remand the case to the
Superior Court for further findings as to the identification procedures.
We summarize
the facts as found by the motion judge.
At approximately
Davis
proceeded home, parked his car on the street, and walked toward his home. There was artificial lighting along the
street. A car pulled up, and a man
alighted from it, approaching and grabbing Davis from behind. Davis turned around, and an altercation ensued. Davis struggled with the assailant, broke
free of him, and ran across the street.
The man then shot Davis twice.
During the struggle Davis and his
[400 Mass. 357] assailant were
face to face. Davis recognized the
assailant as one of the two men he had seen earlier at the bar. Davis then drove to the Wrentham police
station. He described the incident to
the police, referring them to people present at the bar for inquiry about his
assailant's description.
At
approximately 2 A.M., Wrentham police officers visited Floyd and McCarthy at
the motor inn. In separate conversations
with them, the officers obtained descriptions of each of the two men present
earlier that morning at the bar. In the
afternoon of July 29, Wrentham police officer Detective John Barrett visited
Davis at a hospital, where he obtained from Davis a description of the
assailant.
In the
morning of July 30, Detective Barrett went with Floyd and McCarthy to the
police station where they worked jointly with an "Identikit" to develop
composite sketches of the two men they had seen at the bar. Detective Barrett was seated at a table, with
Floyd and McCarthy sitting across from him.
Barrett elicited descriptions from them both and made changes on the
Identikit composite sketches, in order to produce likenesses more or less
similar to the men in question. One of
the Identikit sketches created was very similar to the defendant's appearance,
even to the glasses worn by him.
Later in
the day, Detective Barrett again visited Davis at the hospital. He showed Davis a photocopy of the Identikit
composite sketches. Although Davis
suggested that the weight and height of the man who had held the gun was
somewhat inaccurate as stated on the sketch, no changes were made to the sketch
or the written description as a result of Davis' suggestions.
On
November 12, Detective Barrett visited the Stadium Motor Inn to show a
photographic array to Davis, Floyd, and McCarthy. In separate sessions, he gave each of them
the same set of thirteen photographs to view.
The photographic array consisted of front and side view photographs of
nine individuals and front views of four others. The picture of the defendant was one of the
front and side view photographs. All
thirteen persons pictured were white males whose ages approximated that of the
defendant. Five of the men had
moustaches, and [400 Mass. 358] the remainder, including the
defendant, were clean shaven. The
picture of the defendant showed him wearing glasses. None of the other men in the array were shown
with glasses. Davis selected the picture
of the defendant, identifying him as the man who assaulted him with the
gun. Both McCarthy and Floyd selected
the picture of the defendant, identifying him as one of the two men they had
seen at the bar the night Davis was shot.
On
November 19, Detective Barrett went with Davis, Floyd, and McCarthy to Rhode
Island, where the defendant had been arrested, for a lineup
identification. The defendant was
represented by counsel throughout the lineup procedure. The lineup was conducted in three separate
sequences. At defense counsel's request,
the order in which people were standing was changed with each sequence. The lineup included seven white males all of
an age and appearance similar to that of the defendant. All of them were wearing glasses. Both Davis and McCarthy picked out the
defendant at the lineup as one of the men they saw the night Davis was shot. While Floyd identified another man, not the
defendant, in the lineup, she did say that if the defendant's hair were
"grayer," she would have identified him as the man in the bar.
At trial,
both Davis and McCarthy made positive in‑court identifications of the
defendant. They also testified as to
their identifications from the photographic array and at the lineup. The photographic array and photographs of the
lineup were admitted in evidence.
Although Davis stated that he had selected the defendant's photograph
from the photographic array, he misidentified, on the photograph of the lineup,
the individual that he had selected at the lineup. The Identikit composite sketch was also
admitted in evidence at trial. Because
Floyd could not be located at the time of trial, her testimony was not
available.
[1] 1. In
a motion for a new trial, the defendant argued that the prosecutor engaged in
improper conduct throughout the trial, including closing arguments. He specifically claimed that the prosecutor
attempted, on four separate occasions, to bring to the jury's attention a
certain photograph of the defendant [400
Mass. 359] that was ruled
inadmissible on each occasion after objection by the defendant. The defendant further maintained that the
prosecutor asked improper questions of a defense witness in an attempt to
prejudice the jury against the defendant.
Also, he argued that, in closing arguments, the prosecutor overstated
the evidence and injected his opinion into a characterization of the quality of
the evidence. This motion was denied.
After a
review of the record, we conclude that the prosecutor did not conduct himself
improperly so as to prejudice the defendant.
Certainly the trial judge was in a position to observe whether the
photograph that was not admitted in evidence was held in such a manner that it
was brought to the jury's attention. See Commonwealth v. Barrasso, 342 Mass.
680, 684‑685, 175 N.E.2d 251 (1961).
Furthermore, we conclude that if any impropriety occurred during the
course of cross‑examination or in final arguments, it was adequately
remedied through the judge's instructions to the jury. Commonwealth v. Kozec, 399
Mass. 514, 517‑518, 505 N.E.2d 519 (1987), and cases cited.
Commonwealth v. Winter, 9 Mass.App.Ct. 512, 532‑533, 402
N.E.2d 1372 (1980). Consequently, the
judge did not err in denying the defendant's motion for a new trial.
[2] 2. 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, 453 N.E.2d 1038
(1983), cert. denied, 465 U.S. 1032, 104 S.Ct. 1298, 79 L.Ed.2d 698
(1984). In this case, both McCarthy and
Floyd participated in a single session with Detective Barrett to produce the
composite sketch. The defendant
maintains that this procedure blurred any differences between the perceptive
abilities and impressions of the two witnesses.
He argues that the proper procedure would be to have each witness
preserve his or her recollection in composite form and only then to combine
their impressions into a single work.
In Commonwealth v. Weichell, supra, we
overruled our earlier opinion in
Commonwealth v. McKenna, 355 Mass. 313, 326‑327, 244 N.E.2d 560
(1969), and concluded that an Identikit composite sketch may properly be admissible
as substantive evidence of identification.
However, we also stated that "identification by composite will be
set aside if the pretrial identification process [400 Mass. 360] was so
impermissibly suggestive as to give rise to a substantial likelihood of
irreparable misidentification." Commonwealth v. Weichell, supra 390 Mass.
at 73, 453 N.E.2d 1038, citing Simmons v.
United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247
(1968);
Commonwealth v. Mobley, 369 Mass. 892, 895, 344 N.E.2d 181
(1976). We do not believe that the
procedure used by the police in this instance creates the type of
suggestiveness contemplated in Weichell. See
Commonwealth v. Weichell, supra 390 Mass. at 84, 453 N.E.2d 1038 (Liacos,
J., dissenting). Although both Simmons and Mobley involve identifications from photographs of the suspect,
their analysis is useful in this context.
Both cases were concerned with police manipulation of the photographic
array in order to highlight or suggest to the witness a particular suspect.
Simmons v. United States, supra 390 U.S. at 383‑385, 88 S.Ct.
at 970‑971. Commonwealth v. Mobley, supra. There was no such manipulation in this case
because, at the time that the composite sketch was constructed, the police had
no suspect identified but had only the descriptions provided by Davis,
McCarthy, and Floyd. The motion judge
specifically found that "there was no suggestiveness on the part of the
police to the identifying witnesses in the preparation of the identikit sketch
of the defendant...."
Nevertheless,
the defendant contends that the degree of interaction between McCarthy and
Floyd in creating the composite would be more than sufficient to require suppression of a joint selection from
a photographic array. In a case involving
a photographic array, we stated that "[w]hile there are obvious pitfalls
in permitting [witnesses] to view photographs in each other's presence, the
practice is not ipso facto invalid so
as to preclude an identification made as a result thereof." Commonwealth
v. Moynihan, 376 Mass. 468, 476, 381 N.E.2d 575 (1978), quoting Commonwealth v. Cofield, 1 Mass.App.Ct.
660, 667, 305 N.E.2d 858 (1974). As in Moynihan, we place particular emphasis
on the favorable conditions under which McCarthy and Floyd viewed the two men
in the bar and the short time that elapsed between their observations and the
development of the composite sketch. Commonwealth v. Weichell, supra 390 Mass.
at 80, 84‑85, 453 N.E.2d 1038 (Liacos, J., dissenting). Consequently, we do not believe that the
defendant has met his burden of proving that the process used to create the
composite sketch was "so impermissibly suggestive as to give rise [400 Mass. 361] to a substantial likelihood of irreparable
misidentification." See Commonwealth v. Correia, 381 Mass. 65,
77‑78, 407 N.E.2d 1216 (1980); Commonwealth v. Venios, 378 Mass. 24, 26‑27,
389 N.E.2d 395 (1979); Commonwealth v. Botelho, 369 Mass. 860,
867, 343 N.E.2d 876 (1976). (FN1)
[3] The
defendant next argues that because of Floyd's participation in developing the
composite sketch and her subsequent absence from trial, the admission of the
Identikit sketch introduced hearsay statements of her descriptions of the
suspect which would not otherwise be admissible. See
Commonwealth v. Weichell, supra 390 Mass. at 71‑72, 453 N.E.2d
1038. This argument, however, overlooks
part of the reasoning in Weichell. Our opinion in Weichell concluded that Identikit sketches are admissible as
substantive evidence of identification "either because the composite
retains the character of the statements that led to its creation or because the composite is not a
statement within the meaning of the hearsay rule" (emphasis added). Id.
at 72, 453 N.E.2d 1038. Under this
latter line of reasoning, the Identikit sketch does not fall within the hearsay
rule.
In United States v. Moskowitz, 581 F.2d 14
(2d Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 204, 58 L.Ed.2d 184 (1978), the
court concluded that a sketch prepared by a police artist at the direction of two
witnesses was not a statement for purposes of the Federal Rules of Evidence and
thus was not hearsay. "The sketch
itself, as distinguished from [the witnesses'] statements about it, need not
fit an exception to the rule against hearsay because it is not a 'statement'
and therefore can no more be 'hearsay' than a photograph identified by a
witness." Id. at 21. The court further [400 Mass. 362]
reasoned that the descriptions given to produce the sketch are not the proper
object of a hearsay objection because "[t]he sketch is irrelevant until
there has been evidence that it was the subject of a prior identification made
by a witness." Id.
In this case, the Commonwealth did not attempt to introduce through
McCarthy the identification of the composite by Floyd or statements of her
description of the men in the bar offered during the process of creating the
composite sketch. McCarthy adopted the
composite sketch as a fair and accurate representation of one of the men that
he had seen in the bar and testified only as to that identification. Thus, no hearsay is involved. (FN2)
The rule that a composite sketch is not a
statement for purposes of the rule against hearsay was also accepted in State v. Packard, 184 Conn. 258, 272‑275,
439 A.2d 983 (1981) (The composite sketch "was more akin to a sketch,
photograph, map, chart or other pictorial, graphic or schematic illustration
which are not statements, but nonverbal modes of testimony"). Another court has held composite sketches
admissible generally. State v. Ginardi, 111 N.J.Super. 435, 450‑456,
268 A.2d 534 (1970), aff'd, 57 N.J. 438, 273 A.2d 353 (1971) ("In each
case the eyewitness' statement is that what he sees, be it a photograph or a
composite sketch, looks like the offender").
[4] 3. The
defendant argues that the motion judge erred in not suppressing the
identifications from the photographic array because the procedure used was
suggestive in violation of the defendant's rights under the Fifth and
Fourteenth Amendments to the United States Constitution. He further argues that because the
photographic array was unnecessarily suggestive, the subsequent[400 Mass. 363] lineup and in‑court
identifications were tainted and should not have been admitted in evidence.
"Under
our decisions a criminal defendant has the burden to prove, by a preponderance
of the evidence, that the witness was subjected by the State to a pretrial
confrontation, either photographic or in person, 'so unnecessarily suggestive
and conducive to irreparable mistaken identification' as to deny the defendant
due process of law. On a showing of such
a confrontation, depending on 'the totality of the circumstances surrounding
it,' evidence of the confrontation must be excluded at trial. Should the prosecution then desire to offer
other identification testimony, it must show by 'clear and convincing evidence'
that the identification has a source independent of the suggestive
confrontation." Commonwealth v. Venios, 378 Mass. 24, 26‑27,
389 N.E.2d 395 (1979), quoting
Commonwealth v. Botelho, 369 Mass. 860, 865‑868, 343 N.E.2d 876
(1976).
The motion
judge found that the photographic array contained thirteen photographs, and
that in only the defendant's photograph was the subject pictured wearing
glasses. He found that "the photo
array, shown to the identifying witnesses on November 12, 1982, was only
suggestive in that the defendant had glasses on. Otherwise, there was no
suggestiveness." He also found
that "there was no suggestiveness affecting identification
procedures" and that the Commonwealth had proved "to a point beyond
reasonable doubt" that the identifying witnesses were relying "upon
their view of the defendant on the night of the shooting" during the
identification procedures. These latter
findings are inconsistent with the former finding that the array was suggestive
in that the defendant was the only individual pictured in the array wearing
glasses. While the latter findings could
be interpreted as a determination by the judge that the array was not
sufficiently suggestive to constitute a deprivation of due process under our
opinion in Commonwealth v. Botelho,
supra, our review of the record cautions that this issue be remanded in
order that the findings be clarified.
For example, the record indicates that descriptions provided to the
police by the witnesses immediately after the incident stated that one of the
two individuals involved wore [400
Mass. 364] glasses. Furthermore, the suspect's glasses were a
prominent feature in the Identikit composite sketch, and both Davis and
McCarthy testified that the subject's glasses were a factor in their selection
of the defendant's picture from the photographic array. Also, the lapse of time between the crime and
the identification may have contributed to the suggestiveness of the array.
Photographic
identification procedures are constitutionally invalid if the procedures were
"so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The photographic procedures are to be
examined in light of the total circumstances of the case. Id. at 383‑384, 88
S.Ct. at 970‑971. Our cases and
those of the United States Supreme Court have emphasized the following factors
to be considered in evaluating the likelihood of misidentification: "the opportunity of the witness to view
the criminal at the time of the crime, the witness' degree of attention, the accuracy
of the witness' prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation." Neil v. Biggers, 409 U.S.
188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Simmons v. United States, supra
390 U.S. at 385, 88 S.Ct. at 971. United States v. Wade, 388 U.S. 218, 241,
87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967). Commonwealth v. Mobley, 369 Mass. 892,
896, 344 N.E.2d 181 (1976). Commonwealth v. Botelho, supra 369 Mass.
at 869, 343 N.E.2d 876.
Because,
as shown in the evidence and found by the motion judge, there was an element of
suggestiveness in the photographic array, this case is remanded to the Superior
Court for the motion judge's further analysis and findings of fact as to the photographic
array, in accordance with the Simmons
and Wade criteria, and for
reconsideration of the issues whether the lineup identifications and in‑court
identifications which followed the photograph identifications by the witnesses
were properly admitted in evidence. See Commonwealth v. Mobley, supra 369 Mass.
at 895‑896, 344 N.E.2d 181 (in‑court and out‑of‑court
identifications properly admitted in evidence as determined by judge's
application of Simmons and Wade criteria).
So ordered.
[400 Mass. 365] LIACOS, Justice (dissenting, with whom O'CONNOR, Justice, joins).
The court
concludes today that the admission in evidence of a composite picture, shaped
in significant part by the efforts of a witness whose absence at trial is
unexplained, does not constitute reversible error. The court so concludes, even though the same
witness, in the only fair identification procedure in which she participated
(the lineup) chose someone else as the alleged assailant. The court also concludes that the admission
of identification evidence obtained through use of a clearly suggestive
photographic array merely requires remand for reconsideration of the propriety
of admitting such evidence. I cannot
agree with either conclusion and, therefore, dissent.
1. The composite picture. The danger inherent in all identification
evidence is well known and need not be fully restated. Suffice it to say that the United States
Supreme Court has summed up the problem by stating that pretrial identification
procedures arranged by the police are "peculiarly riddled with innumerable
dangers and variable factors which might seriously, even crucially, derogate
from a fair trial." United States v. Wade, 388 U.S. 218, 228,
87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967).
The danger inherent in these procedures is that unreliable or mistaken
identifications may result. Manson v. Brathwaite, 432 U.S. 98, 114,
97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).
We have been concerned with this danger and have insisted on an adequate
showing of reliability. See Commonwealth v. Venios, 378 Mass. 24,
389 N.E.2d 395 (1979); Commonwealth v. Botelho, 369 Mass. 860,
865‑868, 343 N.E.2d 876 (1976).
Of all the
identification procedures devised, the least reliable is that which utilizes
the so‑called Identikit, as was done in this case. Again, there is no need to elaborate on the
inherent suggestiveness of the Identikit procedure, as Justice O'Connor and I
have set forth an extensive analysis of the problem in Commonwealth v. Blaney, 387 Mass. 628, 640, 642‑643, 442
N.E.2d 389 (1982) (O'Connor, J., dissenting), and Commonwealth v. Weichell, 390 Mass. 62, 79, 81, 84, 453 N.E.2d
1038 (1983) (Liacos, J., dissenting).
The essential point remains that, although the court in Weichell did not accept those views
fully, it did limit carefully the use of composite pictures to those resulting
from the effort of a single
eyewitness who was present in court to testify and [400 Mass. 366] be
cross‑examined. The court
stated: "The statements of the
witness that form the basis for the composite drawing here would not be
inadmissible under our more recent decisions since they are statements of an
out‑of‑court identification ('his eyebrows, nose, and hair looked
like that') by a witness who has made an
in‑court identification and is available for cross‑examination. Since the statements of the witness that led
to the creation of the composite are admissible, the composite which is
prepared from the statements similarly ought to be admissible either because
the composite retains the character of the statements that led to its creation
or because the composite is not a statement within the meaning of the hearsay
rule." (Emphasis added.)
Commonwealth v. Weichell, supra at 72, 453 N.E.2d 1038.
Here, the
majority gloss over the unexplained absence of the composite witness Floyd and
the loss of the right to examine her as to the reliability of the process. I doubt that the other composite witness's
(McCarthy's) presence at trial would satisfy the majority as to the lack of confrontation
of Floyd if McCarthy had been asked to relate‑‑for purposes of
identifying the defendant‑‑whether Floyd had orally identified the
defendant extrajudicially. Also, while
we have recognized that the procedure of having witnesses choose jointly from a
photographic array may not invalidate an identification, we have stated that it
would be "highly preferable" for two witnesses to make their
selections independently. Commonwealth v. Moynihan, 376 Mass. 468,
476, 381 N.E.2d 575 (1978) (describing resulting weakness in photographic
identification as "close question"). Id. at 477, 381 N.E.2d
575. Clearly, the more suggestive
Identikit procedure engaged in jointly by two witnesses and a police officer
should present not only a "close question" but a clear answer: that a composite created by two witnesses
interacting with the police officer should be inadmissible‑‑at least, where one of the witnesses
later misidentifies a person in a fair lineup and then is unavailable for trial
examination.
2. The photographic array. The trial judge found that, in separate
sessions, a photographic array of thirteen photographs was presented to the
victim (Davis) and the composite witnesses, McCarthy and Floyd. All thirteen persons depicted were [400 Mass. 367] white males. Only one, the
defendant, was shown with eyeglasses.
All three witnesses went for the eyeglasses. The witness McCarthy testified at trial:
DEFENSE
COUNSEL: "Didn't you think that, at
least, the wearing of the glasses was a distinctive feature?"
THE
WITNESS: "I would notice somebody's
glasses, sir, what kind they had, more than anybody else who doesn't wear
glasses."
DEFENSE
COUNSEL: "I see. Did you take particular notice of, and at
least, was the one thing that stood out in your mind as distinctive the fact
that the person that night had glasses on?"
THE
WITNESS: "That was one of
them...."
DEFENSE
COUNSEL: "In fact, mention was made
underneath that composite that the person wears glasses; isn't that right?"
THE
WITNESS: "Yes."
DEFENSE
COUNSEL: "So that was something that you had in mind when you went to look
at the pictures, didn't you?"
THE
WITNESS: "Yes...."
DEFENSE
COUNSEL: "So you saw a group of
pictures and you knew you were looking for someone with glasses, weren't
you?"
THE
WITNESS: "Yes."
DEFENSE
COUNSEL: "And there is one in there
with glasses, isn't there?"
THE
WITNESS: "Yes."
McCarthy
had testified similarly at the suppression hearing:
DEFENSE
COUNSEL: "And that description
indicated that the man wore glasses; is
that right?"
THE
WITNESS: "Yes."
DEFENSE
COUNSEL: "And that was something
you remembered as fairly distinctive;
isn't that correct?"
THE
WITNESS: "Yes, because I, myself,
also wear glasses."
The judge
ruled: "1. I find and rule that there was no
suggestiveness on the part of the police to the identifying witnesses in the
preparation of the identi‑kit sketch of the defendant on July 30, 1982,
and that said sketch closely resembles the defendant, even to the glasses. 2. I
find and rule that the photo [400
Mass. 368] array, shown to the
identifying witnesses on November 12, 1982,
was only suggestive in that the defendant had glasses on. Otherwise, there was no
suggestiveness." (Emphasis
supplied.)
With all
due respect, if the composite was supposedly reliable "even to the
glasses," it is hard to fathom how "there was no suggestiveness"
as to the array. To say that the array
"was only suggestive in that the defendant had glasses on" strikes me
as pure sophistry. Commonwealth v. Mobley, 369 Mass. 892,
896, 344 N.E.2d 181 (1976), does not help the Commonwealth because there the
singular feature (ski cap) was stated by the identifying witness not to be the basis of the
identification. Here, the witness
admitted that he relied on the eyeglasses.
The court
concludes there was "an element of suggestiveness in the photographic
array." I agree with this
understated position. Why then a remand? The photographic array was erroneously
admitted; the evidence of the Identikit
identification was also erroneously admitted.
The errors were prejudicial.
(FN1) The case should go back for
a new trial. I dissent.
(FN1.) The dissent's objection to the
Identikit sketch focuses on the alleged suggestiveness inherent in a process where
two witnesses participate in the development of an Identikit sketch. The dissent contends that such a process
should render the sketch inadmissible "at
least, where one of the witnesses later misidentifies a person in a fair
lineup and then is unavailable for trial examination." The fact that the unavailable witness had
later misidentified the defendant in a lineup is not as probative on the
question of suggestiveness as the dissent implies, considering that she stated
that she would have selected the defendant if his hair had been grayer. Furthermore, both witnesses had similar
opportunities to observe the defendant for the same amount of time and under
the same lighting conditions. McCarthy
may even have had a better opportunity to observe the defendant when he
unlocked the door as the defendant left the bar.
(FN2.)
The dissent suggests, "I doubt that the other composite witness's
(McCarthy's) presence at trial would satisfy the majority as to the lack of
confrontation of Floyd if McCarthy had been asked to relate‑‑for
purposes of identifying the defendant‑‑whether Floyd had orally
identified the defendant extrajudicially." This statement is not inconsistent with the
above reasoning and is not applicable in this instance, where no such inquiry was
made of McCarthy. A rule that the
composite sketch is not a statement within the meaning of the hearsay rule
would not allow McCarthy to testify that Floyd also identified the sketch as
presenting a likeness of the suspect.
Within this rule, such a statement by Floyd would constitute hearsay if
introduced through McCarthy.
(FN1.)
In light of the position I take, I need not consider whether the lineup and
courtroom identifications were so tainted as also to be inadmissible.