Commonwealth v. Weichell

390 Mass. 62 (1983)

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Nature of the Case

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Facts

Barrett and D approached Shea on a street. Barrett and Shea had words and began to fight. They wrestled for several minutes until Barrett locked Shea in a 'chokehold.' Shea 'blacked out' but regained consciousness soon after. The fight attracted much attention, and several of Shea's friends, including the victim, arrived. He helped Shea to his feet. Shea told Barrett that he would kill him. D then stepped up to Shea and told him that if Shea killed Barrett, he himself would kill Shea and that 'they'll never find [your] body.' D and Barrett turned away and left. Shea, LaMonica, Dennis King, and Chuckie Carr, retired to the house of Shea's brother. LaMonica uttered to others several threats relating to Barrett and D. LaMonica talked to his paramour, Maureen A. Connolly, that 'me and my friends, we're going to get him, and we're going to kill him.' The next day Shea saw D and LaMonica arguing. He did not hear the words uttered, but testified that d was 'pointing his finger in LaMonica's face and stepping up and down the sidewalk.' LaMonica worked for the Boston Water and Sewer Commission. He worked from 4 P.M. to midnight. LaMonica followed this routine on the morning of May 31, 1980. He parked and got out of his car. Four shots were fired, two of them hitting LaMonica. A bullet entered his neck and penetrated his brain. A second bullet entered his back and lodged in his right rib cage. LaMonica died in the parking lot. John Foley, Jean Castonquay, Frederick Laracy, and Lisa Krause went to Faxon Park, after attending a drive-in movie together. Foley testified the group had been drinking and that he had consumed four or five beers during the movies. At 12:15 A.M., Foley was walking away from a wooded area of the park. He heard four 'bangs' and saw a man run out of the parking lot and turn up Faxon Street to a waiting car. Krause screamed. The man looked toward the group briefly but continued running. Foley testified that he had a full-face view of the man for approximately one second as the man passed under a street light. Foley and Laracy went across Faxon Street to the parking lot where they found the body of the victim on the ground. Foley described to the police the man he saw running as being five feet, nine inches tall, 175 pounds, wearing jeans and a pullover shirt. He said that the man had dark curly hair, bushy eyebrows, and sideburns. He also stated that the man had a slightly crooked nose, 'as if it had been broken.' At trial, he identified D as the man he saw running that night. Foley assisted the police in making a composite drawing. With the aid of an Identikit, officer Wilson and Foley assembled a composite. Foley examined the composite and asked for changes. Wilson then changed the elements of the composite and put together a different face. Wilson used a pencil to alter the nose. After Foley altered the hairstyle, he declared that the composite 'looks like him.' Foley was shown an array of nine photographs. He picked D's picture as 'a pretty good likeness' of the man. Several months later, he again identified D's photograph out of the same array but which now included one additional photograph. The composite was introduced at D's trial. Foley also identified D as the man he saw running on May 30. D was convicted of first-degree murder and appealed.