NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 

557-1030; SJCReporter@sjc.state.ma.us 

19-P-326 Appeals Court 

COMMONWEALTH vs. JOHN YANG. 

No. 19-P-326.

Worcester. May 11, 2020. - September 17, 2020. 

Present: Massing, Shin, & Ditkoff, JJ. 

Burning a Dwelling House. Malicious Explosion. Evidence, 

Photograph, Hearsay, Identification. Identification.

Practice, Criminal, Identification of defendant in 

courtroom.

Indictments found and returned in the Superior Court 

Department on October 24, 2013. 

The cases were tried before Richard T. Tucker, J. 

Andrew W. Piltser Cowan for the defendant.

Michelle R. King, Assistant District Attorney, for the 

Commonwealth. 

SHIN, J. A jury convicted the defendant of arson of a 

dwelling, see G. L. c. 266, § 1, and malicious explosion, see 

G. L. c. 266, § 102B. The key issue at trial was the identity 

of the drug dealer known as "Chi," who recruited two men to set 

fire to a house. On appeal the defendant argues that the judge 
2

erred by admitting an in-court identification, hearsay evidence, 

and lay opinion testimony. We agree and conclude that these 

errors, taken together, created a substantial risk of a 

miscarriage of justice. Therefore, we reverse. 

Background. In the months preceding July 2013, Kyle 

DeWispelaere and Joseph Brown frequently purchased drugs from a 

dealer they knew only as "Chi."1 The men arranged transactions 

with Chi via telephone and then typically went to an apartment 

located on Forest Street in Fitchburg for the exchanges. They 

understood that this apartment, which had a mailbox outside that 

read "Yangs," was the home of Chi's brother. During the brief 

transactions, DeWispelaere and Brown focused their attention on 

the drugs and money exchanged rather than on Chi's appearance. 

DeWispelaere described Chi as a five-foot, six-inch tall,2 stocky 

Asian man, with a ponytail and otherwise mostly shaved head and 

a dragon tattoo on his left arm. Brown described Chi as short 

and Asian with tattoos. Although the two men often dealt with 

Chi, they also purchased drugs from other dealers, including 

Chi's nephew. 

 

1 Both DeWispelaere and Brown testified under cooperation 

agreements.

2 DeWispelaere acknowledged at trial that the defendant was 

not this height.
3

When the men contacted Chi for drugs in early July 2013, 

Chi stated that he did not have any to sell because his 

roommate, Shaun Hibbard, stole his drugs, guns, and money. Chi, 

seeking to retaliate, spoke to Brown about finding someone to 

"firebomb" Hibbard's house. Brown discussed this with 

DeWispelaere and, after negotiating with Chi, agreed to burn 

Hibbard's house in exchange for one thousand dollars' worth of 

heroin. A few nights later, Brown and DeWispelaere traveled to 

Fitchburg with a third man and drove by the address provided by 

Chi.3 Chi sent a text message to Brown, instructing him to 

"[g]et it done, in flames." The men assembled Molotov 

cocktails, which are glass containers filled with flammable 

liquid, rags, and wicks, and then lit and threw them at the 

house. Police stopped the three men in their car soon 

thereafter. 

Discussion. 1. In-court identification. In October 2013 

police showed DeWispelaere eight photographs. Initially, 

DeWispelaere did not select any of the photographs as depicting 

the drug dealer he knew as Chi, but, when he looked a second 

time, he selected a photograph of the defendant. He stated that 

 

3 That address was home to Hibbard's estranged wife. The 

wife testified that Hibbard had moved out and was living with a 

roommate in a different apartment. The defendant's fingerprints 

were later discovered at that apartment in Leominster. 
4

he was "[eighty] percent sure" about his identification, 

explaining that "[t]he hair appeared to be different than [he] 

remembered it."4 At trial, however, when DeWispelaere was asked 

to make an in-court identification, he unequivocally identified 

the defendant as the man he knew as Chi. The defendant now 

argues that DeWispelaere should not have been permitted to make 

the in-court identification because his out-of-court 

identification was equivocal.5 We agree.

If an eyewitness "made something less than an unequivocal 

positive identification of the defendant" during an out-of-court 

identification procedure, that witness may not make an in-court 

identification without "good reason." Commonwealth v. Collins, 

470 Mass. 255, 265 (2014). See Mass. G. Evid. § 1112(c)(2)(A) 

(2020). An unequivocal positive identification occurs if the 

witness "identifies the defendant as the perpetrator, such that 

 

4 DeWispelaere testified that "the hair has a lot to do 

with" how he perceives someone's appearance. 

5 We reject the Commonwealth's assertion that the parties 

stipulated to the in-court identification, as that is not borne 

out by the record. The record does establish, however, that the 

defendant did not preserve the issue. Although the defendant 

filed a "motion to exclude in-court identification," his 

arguments to the judge focused on Brown (who never made a 

pretrial identification), and the defendant failed to object to 

DeWispelaere's in-court identification during trial.
5

the statement of identification is clear and free from doubt." 

Commonwealth v. Dew, 478 Mass. 304, 315 (2017).6 

Here, DeWispelaere should not have been permitted to make 

an in-court identification because his prior identification was 

not unequivocal. DeWispelaere's statement that he was "[eighty] 

percent sure" was not one that was "clear and free from doubt." 

Dew, 478 Mass. at 315. Also, it was only after DeWispelaere saw 

the defendant's photograph a second time that he selected it. 

In these circumstances we agree with the defendant that 

DeWispelaere's out-of-court identification was not unequivocal. 

Indeed, the Commonwealth does not argue otherwise in its brief. 

Nor did good reason justify admission of the in-court 

identification, and again the Commonwealth does not so argue. 

Even where the witness was familiar with the defendant prior to 

the commission of the crime, "good reason will not often exist 

where a witness has earlier failed to make a positive 

identification. In these circumstances, for an in-court showup 

to be admissible, it would need to be justified by some other 

'good reason' for permitting a suggestive identification 

procedure, which usually would require a showing that the incourt identification is more reliable than the witness's earlier 

 

6 The trial judge did not have the benefit of the Dew

opinion.
6

failure to make a positive identification and that it poses 

little risk of misidentification despite its suggestiveness." 

Collins, 470 Mass. at 265. There is no basis here on which to 

conclude that DeWispelaere's in-court identification was more 

reliable than his equivocal out-of-court identification. This 

is not a case, for instance, where DeWispelaere "only failed to 

identify the defendant in the earlier identification procedure 

because of fear or an unwillingness to cooperate with the police 

at the time." Id. at 265 n.16. Moreover, the in-court 

identification was highly "material to a determination of [the 

defendant's] guilt or innocence" and did not "serv[e] merely to 

inform the jury that 'the person sitting in the court room is 

the person whose conduct is at issue.'" Dew, 478 Mass. at 313, 

quoting Commonwealth v. Crayton, 470 Mass. 228, 242 (2014). 

Thus, as no good reason existed for the in-court identification, 

it should not have been admitted.

2. Hearsay. When police executed a search warrant at the 

Forest Street apartment, they found a photograph that depicted a 

partially clothed woman with a man resembling the defendant. 

Below the photograph was an initialed note that read, "Chi --

keep it nasty." The defendant moved in limine to exclude the 

photograph or, in the alternative, to redact the inscription, 

arguing that the combination of the two constituted inadmissible 

hearsay. The Commonwealth countered that the evidence was being 
7

offered for the nonhearsay purpose of showing that the defendant 

"held himself out to be Chi." In so arguing, the Commonwealth 

asserted that the photograph was "a gift [the defendant] got 

from a strip club" and that, inferably, the woman in the 

photograph wrote the inscription. Over the defendant's 

objection, the judge admitted the photograph unredacted, finding 

that it was offered for the nonhearsay purpose of showing that 

"[the defendant] held himself . . . out as Chi" and, in 

particular, that the woman "knew [the defendant] as Chi." The 

judge also appeared to find that the unredacted photograph was 

admissible to show the defendant's connection to the apartment.

Absent an applicable exception, "the rule against hearsay

prohibits the admission of out-of-court statements offered to

prove the truth of the matter asserted." Commonwealth v.

Wardsworth, 482 Mass. 454, 462 (2019). Statements for hearsay 

purposes include a person's oral or written assertions, as well 

as "nonverbal conduct, if the person intended it as an 

assertion." Mass. G. Evid. § 801(a) (2020). See Commonwealth

v. Baker, 20 Mass. App. Ct. 926, 928 n.3 (1985). 

The defendant argues that the inscribed photograph was 

offered to prove the truth of the implied assertion that the man 

in the photograph, who appeared to be the defendant, was known 

by the name Chi. We agree that the Commonwealth offered the 

evidence for this purpose, as made clear by its arguments to the 
8

judge and how it used the evidence at trial. When introducing 

the photograph, the Commonwealth first asked the witness, 

"[T]his appears to be a photograph with writing on the bottom 

that says, 'Chi, keep it nasty,' with a signature?" The 

Commonwealth then connected the inscription to the defendant by 

asking, "Does that appear to be a photograph of John Yang?" It 

drew the same connection in closing argument, suggesting that 

the person who wrote the inscription gave the photograph to the 

defendant as a gift:

"And more importantly, what did the police find inside 45 

Forest Street? A photo of the defendant signed -- a gift, 

if you would -- Chi, keep it nasty. And whatever theory 

that was just advanced as to someone hopped in and signed 

it, you all come into this courtroom with life experience 

and common sense. And I'd ask you if that argument makes 

any sense to any of you." 

The Commonwealth concluded by arguing that "the photographs 

. . . confirm" "[t]he identification of Chi as John Yang." 

The plain import of the Commonwealth's argument was that 

the jury should consider the photograph and inscription as 

evidence that the defendant and Chi were one and the same. 

Indeed, the Commonwealth offered no other reason for its 

insistence on presenting the photograph and inscription 

together. See Commonwealth v. Ashman, 430 Mass. 736, 742 n.5 

(2000). As the Commonwealth acknowledges, "[t]he only issue at 

trial was whether the defendant was the individual known as 

'Chi' who enlisted DeWispelaere and Brown to firebomb Shaun 
9

Hibbard's home." We therefore agree with the defendant that the 

Commonwealth impermissibly used the evidence to prove the truth 

of an implied assertion that the defendant was, in fact, Chi.7 

See id. at 742-743 (witnesses' testimony that they contacted 

police in response to telephone call from victim was hearsay 

because inference was that victim told them that defendant 

abused her); Commonwealth v. Sheline, 391 Mass. 279, 285-286 

(1984) (averment in laboratory certificate that defendant was 

"aka Howie Tuna" was hearsay); Commonwealth v. DeJesus, 87 Mass. 

App. Ct. 198, 201-202 (2015) (police checkmarks on currency 

photocopies were hearsay because offered to show that bills 

matched those in defendant's pocket); Commonwealth v. Ramirez, 

55 Mass. App. Ct. 224, 227-228 (2002) (business cards in 

defendant's possession listing New York addresses were hearsay 

because offered to show connection to New York); Commonwealth v. 

Kirk, 39 Mass. App. Ct. 225, 228 (1995) ("Given that the 

identity of the [victim's] 'boyfriend' was the live issue at the 

trial, and that evidence that the defendant was the boyfriend 

was essential for his conviction, the use of the [G. L. c. 209A] 

affidavit to resolve the identification issue would mean that 

 

7 Because the statement was not testimonial, however, we 

reject the defendant's argument that admitting the evidence 

violated his right to confrontation. See Commonwealth v. 

Imbert, 479 Mass. 575, 580 (2018).
10

the affidavit would be used, impermissibly, for the truth of the 

matter asserted therein").

While not disputing that it used the photograph and 

inscription to prove that the defendant was the same person as 

Chi, the Commonwealth argues that the evidence was nonetheless 

offered for a nonhearsay purpose -- to show that "the defendant 

held himself out as 'Chi.'" In so arguing, the Commonwealth 

relies, as the trial judge did, on Commonwealth v. Koney, 421 

Mass. 295 (1995). The charge at issue in Koney was operation of 

a motor vehicle after revocation, which required the 

Commonwealth to prove that the defendant received notice of the 

revocation. See id. at 302-304. To that end, the Commonwealth 

introduced revocation notices sent to one Roger A. Koney and a 

copy of an identification card for Roger A. Koney that the 

defendant produced to an officer. See id. at 302. The card 

contained a photograph and the same address and identifying 

information listed on the revocation notices. See id. The 

court held that the card was not hearsay because the 

Commonwealth did not offer it "to prove the defendant actually 

was named Roger A. Koney and actually lived at" the identified 

address, but for the more limited purpose of showing that he 

held himself out as such. Id. at 303. This had probative value 

because "[p]roper mailing of a letter is prima facie evidence of 

receipt by the addressee." Id. at 303-304.
11

Koney is inapposite for several reasons. First, as 

discussed above, the Commonwealth in this case offered the 

evidence to show that the defendant was actually the person 

known as Chi who ordered the firebombing. Second, unlike in 

Koney, the photograph was not "produced by the defendant" and 

therefore was not "reliable evidence from which the jury could 

find that the defendant held himself out to be" Chi. Koney, 421 

Mass. at 303. Third, and relatedly, here the suggestion that 

the defendant held himself out as Chi necessarily depends on the 

truth of the implied assertion -- that is, that the man in the 

photograph was known to the declarant as Chi. Thus, because the 

declarant's "credibility must be evaluated to determine the 

probative force of this line of identification proof, the 

hearsay rule applies." Kirk, 39 Mass. App. Ct. at 230.

We also reject the Commonwealth's contention that the 

evidence was admissible to show the defendant's connection to 

the Forest Street apartment. This purpose would have been 

equally served by admitting the photograph without the 

inscription, as the defendant had proposed. A photograph of the 

defendant found in the apartment would alone have shown his 

connection to it. See Sheline, 391 Mass. at 286 (statement that 

defendant was "aka Howie Tuna" was "unnecessary to the integrity 

of the [chemist's] certificate"). But the Commonwealth insisted 

on presenting the photograph and inscription together, for the 
12

stated purpose of showing that the defendant held himself out as 

Chi. This was an impermissible use of the evidence to prove the 

truth of the matter asserted.

3. Lay opinion. At trial a detective testified, without 

objection, that the man depicted in the photograph appeared to 

be the defendant. The defendant argues that this was improper 

lay opinion testimony. Once again, we agree. 

A lay witness may opine about the identity of a person 

depicted in a photograph if the testimony "assist[s] the jurors 

in making their own independent identification." Wardsworth, 

482 Mass. at 475, quoting Commonwealth v. Pina, 481 Mass. 413, 

429 (2019). See Mass. G. Evid. § 701 (2020). Such an opinion 

is generally admissible, therefore, "if there is some basis for 

concluding that the witness is more likely to correctly identify 

the defendant from the photograph than is the jury." 

Commonwealth v. Vacher, 469 Mass. 425, 441 (2014), quoting 

Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 326 (2000). Here, 

the evidence did not show that the detective had "any special

familiarity with the defendant that the jury lacked" that would

assist them in identifying the man in the photograph as the

defendant.8 Vacher, supra at 442. See Wardsworth, supra at 476

 

8 The Commonwealth points to evidence that the defendant's 

appearance had changed since the time of his arrest. Although 

the defendant's stepbrother testified that the defendant 

appeared "chubbier" in a photograph taken around the time of his 
13

(improper for officers to testify about identity of person in

surveillance video recording where they had no "special insight"

into defendant's appearance). The detective was not in a better

position than the jury to make the identification, and so his

lay opinion testimony should not have been admitted.

4. Substantial risk of a miscarriage of justice. Although 

the defendant preserved the hearsay issue, he did not object to 

either the in-court identification or the lay opinion testimony. 

We need not decide whether any error individually requires 

reversal of the convictions, however, because we conclude that 

the errors, taken together, created a substantial risk of a 

miscarriage of justice. See Commonwealth v. Dwyer, 448 Mass. 

122, 138 (2006); Commonwealth v. Cancel, 394 Mass. 567, 576 

(1985).

All three errors went to the heart of the case: 

identification. See Commonwealth v. Mazzone, 55 Mass. App. Ct. 

345, 353 (2002) (reversing where "errors all concern[ed] 

evidence implicating credibility in a trial in which credibility 

was the only real issue"). DeWispelaere's unequivocal in-court 

identification was strong direct evidence that the defendant was 

 

arrest, the detective did not testify to this, nor was there 

evidence that the detective had known the defendant for a long 

time. See Wardsworth, 482 Mass. at 475-476. Cf. Commonwealth

v. Vitello, 376 Mass. 426, 458-460 & n.29 (1978).
14

the drug dealer known as Chi and was not cumulative. And in 

closing, the Commonwealth emphasized the unequivocal nature of 

the in-court identification to minimize DeWispelaere's

equivocation during the out-of-court identification, arguing, 

"When Kyle DeWispelaere took the stand, was he [eighty] percent 

sure that was the man sitting right there? No." Especially in 

light of the Commonwealth's argument, there is a substantial 

risk that the jury gave more weight to the suggestive in-court 

identification, which carried with it an "inflated level of 

confidence[,] . . . than to the nonsuggestive pretrial 

identification that yielded something less than a positive 

identification." Collins, 470 Mass. at 264.

Likewise, the Commonwealth highlighted the "Chi -- keep it 

nasty" inscription when it introduced the hearsay evidence and 

relied on the evidence in closing to argue that the defendant 

was the same person as Chi. Given the Commonwealth's 

presentation, the absence of a limiting instruction, and that 

identity was the only contested issue at trial, there is a 

substantial risk that the jury considered the evidence for the 

truth of the assertion that the man in the photograph (whom they 

could have found to be the defendant) was Chi. See Wardsworth, 

482 Mass. at 463; Commonwealth v. Randall, 50 Mass. App. Ct. 26, 

28 (2000). And the improper lay opinion testimony added to the 

prejudice caused by the hearsay error because, although the jury 
15

were able to inspect the photograph for themselves, the 

detective's opinion brought with it a "greater imprint of 

authority." Wardsworth, supra at 477, quoting Pina, 481 Mass. 

at 430.

The Commonwealth's case without the improperly admitted 

evidence was not so overwhelming as to overcome the prejudicial 

effect of the combined errors. See Commonwealth v. Alphas, 430 

Mass. 8, 13 n.6 (1999). The Commonwealth's case included 

evidence that the defendant's brother lived at the Forest Street 

apartment. The defendant's fingerprints were also found at the 

apartment in Leominster where Hibbard was living, and Chi told 

DeWispelaere and Brown that Hibbard was his roommate. In 

addition, DeWispelaere chose the defendant's photograph from the 

photo array and testified that Chi had a dragon tattoo on his 

left arm; photographs of the defendant's tattoos confirmed that 

he had one of a dragon on his arm. To counter this evidence, 

however, the defendant offered evidence about the prevalence of 

dragon tattoos among Asian males and presented an alibi defense 

through the testimony of his stepbrother. His stepbrother's 

testimony was partially corroborated by documentary evidence 

and, if believed, showed that the defendant was in Wisconsin 

during the summer when Chi sold drugs to DeWispelaere and Brown 

and recruited them to firebomb the house.
16

Reviewing the case as a whole, "we have a serious doubt

whether the result of the trial might have been different" had

the three errors not occurred. Commonwealth v. Dirgo, 474 Mass. 

1012, 1016 (2016), quoting Commonwealth v. Azar, 435 Mass. 675,

687 (2002), S.C., 444 Mass. 72 (2005). Because the errors went 

to the only contested issue, we conclude that their cumulative 

effect created a substantial risk of a miscarriage of justice. 

The defendant is therefore entitled to a new trial.

Judgments reversed. 

Verdicts set aside.