116 N.E.3d 554
Mass.2019Background
- On April 17, 1999 McCormack was fatally shot outside a Malden bar; two attackers fired different weapons (a .40 caliber and a 9mm), and two defendants, Anthony Barry and Brian Cahill, were identified at trial and convicted largely on the eyewitness testimony of Brian Porreca.
- Porreca had a lengthy criminal history, substance abuse issues, and was under federal investigation (1995 kidnapping) when he agreed to cooperate after receiving assurances from federal prosecutors; his consistency about the shooters changed in early interviews.
- Physical evidence: a .40 caliber pistol was recovered at the scene; an Uzi-type weapon and other casings were recovered nearby; Nomex hoods and gloves linked to the defendants were seized; DNA from saliva on a Nomex hood was reported to match Cahill.
- Defendants filed two motions for a new trial (first in 2002 with an evidentiary hearing; second in 2014 decided without an evidentiary hearing) asserting Brady violations, newly discovered evidence, confrontation and public-trial claims, and seeking disclosure of a confidential informant identified in post-trial police reports.
- The trial court denied both motions; the Supreme Judicial Court reviewed sufficiency of the evidence, alleged Brady nondisclosures and newly discovered evidence, confrontation/DNA challenges, courtroom closure claims, and refusal to disclose the informant, and affirmed the convictions.
Issues
| Issue | Commonwealth's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Sufficiency of evidence / causation (who caused death) | Evidence (two lethal wounds from different weapons, medical testimony, eyewitnesses) supports convictions of both as concurrent proximate causes | Evidence insufficient to prove which shot was fatal; defendants tried as principals not joint venturers | Affirmed: evidence permitted finding both as proximate concurrent causes; convictions stand |
| Brady / nondisclosure of Porreca hospital records | Records were cumulative of trial impeachment evidence and not prejudicial | Commonwealth withheld hospital records showing heroin withdrawal soon after shooting, which would have impeached Porreca and warranted new trial | Affirmed denial of new trial: records cumulative, no substantial risk jury verdict would differ |
| Newly discovered / post-trial police reports (Orlando, Montana, ATF) | Reports were unreliable, based on rumor or later recanted sources, and not in Commonwealth possession or not materially exculpatory | Reports implicated third parties (Angelesco, Giangrande, Rennell) or showed inducement to alter testimony and so required new trial or disclosure | Affirmed: reports not sufficiently credible or material to cast doubt; Montana report led to further inculpatory evidence; no prejudice shown |
| Confrontation / DNA testimony & expert issue | DNA laboratory director participated in and reviewed testing and reported his own conclusions; defendants had meaningful cross-examination | Argue expert was a substitute who did not do the testing; eight-loci testing unreliable under later standards | Affirmed: expert testified to his opinions and procedures (no confrontation violation); eight-loci result not shown unreliable and did not create substantial likelihood of miscarriage of justice |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose exculpatory evidence)
- Commonwealth v. Maynard, 436 Mass. 558 (2002) (multiple actors can be concurrent proximate causes of death)
- Commonwealth v. Perry, 432 Mass. 214 (2000) (sufficiency of evidence where fatal cause indeterminate; joint liability upheld)
- Commonwealth v. Grace, 397 Mass. 303 (1986) (standard for newly discovered evidence warranting new trial)
- Commonwealth v. Sullivan, 478 Mass. 369 (2017) (Brady framework and prejudice analysis)
- Commonwealth v. Bonnett, 472 Mass. 827 (2015) (informant privilege test and disclosure procedure)
- Roviaro v. United States, 353 U.S. 53 (1957) (balancing informant identity disclosure against law-enforcement interests)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause principles for testimonial statements)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (requirement that analysts be available for cross-examination for certain forensic reports)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (limits on surrogate testimony under Confrontation Clause)
- Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009) (inadmissibility of uncorroborated rumor as third-party culprit evidence)
- Commonwealth v. Donald, 468 Mass. 37 (2014) (comparison of loci in DNA matching and impact on match probability)