Com v. Adams

Commonwealth v. Jovon Adams

Supreme Judicial Court
January 28, 2011

Docket No. 10580

Homicide, Armed Assault with Intent to Murder, Assault and Battery by Means of a Dangerous Weapon, Assault by Means of a Dangerous Weapon, Firearms.

The defendant was convicted of premeditated murder, armed assault with intent to murder, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and carrying a firearm without a license. On appeal, the defendant claimed that it was error to admit pretrial statements of his younger brother, Josiah, who testified at trial that the defendant was not present at the shooting of Cordelro Andrade; however, two of his pretrial statements were shown to contradict that, as one statement claimed that the defendant had been present, while another statement showed that a co-defendant had committed the shooting by himself. These pretrial statements were admitted substantively subsequent to Josiah claiming that his brother (the defendant) had not been involved in the shooting. The defendant also claimed that because he had been attempting to protect his sister during an altercation, the judge’s refusal to give requested instructions regarding defense of another was in error. The convictions were affirmed.

Facts

On May 14, 2007, the defendant was part of two groups of individuals who were arguing at housing district in the Dorchester section of Boston. This turned into a fight between two women; Christina Mills (the defendant’s sister) tried to intervene but was restrained by Takeyda Allen. The defendant pointed a gun at Allen and told her to leave his sister alone. Later that evening, the defendant was challenged to a fight by Allen’s brother. The groups returned to the housing district the next day. The defendant’s sister was there, but the defendant and Taquise Johnson (his codefendant) were at the defendant’s mother’s apartment. The defendant was heard saying “I don’t give a [expletive], I’ll do it in broad daylight.” The two men then left the apartment. Ten minutes later, Cordelro Andrade and Takeyda Allen’s brother left the housing district and were approached by two men armed with guns that emerged from an automobile and began shooting. Andrade was killed upon being shot in the back and a bystander was wounded in the left leg. When the defendant and Johnson returned to the apartment, defendant vomited and was then heard saying, “When I hit him, he made a painful sound.”

Police arrived at the apartment while the defendant’s brother Robert was moving the guns; they recovered a .357 Ruger revolver, a .357 Smith and Wesson revolver, and a .380 caliber Cobra semiautomatic pistol. Bullets recovered from both Andrade and the bystander were shown to match two of the guns in the defendant’s mother’s apartment.

In October 2008, defendant’s twelve-year-old brother, Josiah, said that Johnson was one of the two men whom he saw get out of the car and start shooting at Andrade. He was unable to identify the second man but said that it was not one of his brothers. However, earlier pretrial interviews revealed that Josiah had said both that Johnson had wielded two guns by himself, and also that Johnson and defendant had shot Andrade. These pretrial statements were admitted substantively.

Issue 1: Were Josiah’s pretrial statements inadmissible hearsay that do not fall within Proposed Mass. R. Evid. 801(d)(1)(C)?

The defendant claimed that because 801(d)(1)(C) only applies to identifications made from a photo array, lineup, or other procedure, it does not include just naming the defendant based on the witness’s familiarity. The Court determined that because defendant was someone the witness knew well, the other identification procedures were not required and thus the identification was not inadmissible hearsay.

Issue 2: Were Josiah’s pretrial statements inadmissible under 801(d)(1)(C) because they were accusations and not statements of identification?

The Court held that without context, an act or statement of identification is without meaning and must be accompanied by some sort of accusation that is relevant to the case at bar. It was also said that judges have much discretion in this determination and parties who intend to offer this sort of testimony are encouraged to do so in a motion in limine.

Issue 3: Should the multiple versions of Josiah’s statements of identification be treated as statements of first complaint?

The defendant claimed that only Josiah’s first statement should have been admitted substantively, like those in sexual abuse cases. The Court declined to adopt this because it would limit them to accepting Josiah’s first statement of identification, which, when taken with his contrary identifications, does not give the jury a comprehensive picture. Josiah’s statements were admissible substantively for identification purposes.

Issue 4: When prior statements are deemed to be untruthful, should they be made available to the jury as substantive evidence?

Here, the defendant illustrated that his younger brother, Josiah, had chosen his trial testimony over his pretrial statements as the correct version of his testimony. The defendant asserted that the Court should have used the rule established in Sullivan v. Boston Elevated Ry., 224 Mass. 405 (1916), which held that when a witness has to make a choice between two contradictory statements at trial, he or she is bound by that choice and the jury is not entitled to believe the repudiated version. However, the Court noted that Josiah was not choosing between two contradictory statements made at trial, but between a statement made at trial and statements made out of court. Because the contradictory statements were not all made at trial, Josiah’s statements could be treated as substantive evidence.

Issue 5: Was the judge’s instruction that said only Josiah’s second and third extrajudicial statements, and not his first, could be considered substantively, in error?

While the Court agreed that the first extrajudicial statement should have been considered substantively along with his second and third statements, as there was no objection during trial, the Court could only inquire as to miscarriage of justice. It was determined that there was not.

Issue 6: Was the judge’s refusal to instruct the jury as to defense of another concerning the indictment of assault by means of a dangerous weapon in error?

The Court held that the judge was correct to deny defendant’s request for the jury instruction, as there was no reasonable basis to believe that defendant’s sister was in danger. She had not sought all reasonable alternatives to a physical altercation but instead joined the fight.

Judgments affirmed.

Prepared by JWK