Commonwealth v. Moore, 109 N.E.3d 484

Background

On March 22, 2010 a masked intruder executed Margaret Przewozniak during an armed home invasion in Springfield; two masked men fled in a light-gray Dodge minivan. Victim kept cash in a small keyed strongbox. Murder weapon not recovered.
Police broadcast witness descriptions and later located a minivan registered to the defendant's mother; officers stopped the van, arrested the defendant and his brother, and conducted showup identifications that yielded multiple identifications of the van and, for some witnesses, of the defendant.
Forensic testing found the victim's DNA on the defendant's T‑shirt and inside the minivan; gunshot residue on the defendant's hands tested negative. The defendant made a spontaneous statement to police implicating his brother as uninvolved.
Defendant was convicted of first‑degree murder (premeditation, extreme atrocity/cruelty, and felony‑murder predicated on armed home invasion/robbery) and related offenses; convictions and denial of a new‑trial motion were appealed under G. L. c. 278, § 33E.
On appeal the defendant raised multiple claims: exclusion of portions of a police radio broadcast (Bowden and third‑party culprit theories), failure to preserve the correct booking videotape, improper suggestive showup identification, admission of prior testimony of an unavailable witness (Brown), ineffective assistance/newly discovered evidence, and requested § 33E relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of police radio broadcast (third‑party culprit vs Bowden)	Commonwealth argued hearsay/layered hearsay barred portions describing perpetrators	Moore argued descriptions were admissible to show investigative inadequacy (Bowden) and/or third‑party culprit evidence	Third‑party culprit theory: exclusion proper (layered hearsay). Bowden theory: descriptions were admissible but their exclusion was harmless given other evidence; no reversal
Failure to preserve/disclose booking videotape	Commonwealth had no bad faith and remedied by permitting cross‑examination about absence of visible blood	Moore said missing videotape could have shown no blood at booking and supported transfer theory	Court assumed defendant met initial burden but found no bad faith and that cross‑examination and other remedies cured prejudice; no new trial
One‑on‑one showup identifications (due process)	Commonwealth: prompt public‑safety justification; no special unfairness	Moore: showups were inherently suggestive and risked misidentification	Showups occurred within hours, there was strong public‑safety justification, and procedures lacked special elements of unfairness; identification admissible
Admission of unavailable witness Brown's prior testimony; impeachment with grand jury testimony	Commonwealth: prior testimony admissible and satisfied Confrontation Clause because defendant had prior opportunity to cross‑examine at suppression hearing	Moore: prior testimony violated hearsay/Confrontation Clause and suppression counsel ineffectively failed to impeach Brown with grand jury inconsistencies	Admission did not violate Confrontation Clause (prior hearing allowed adequate cross‑examination); counsel should have impeached with grand‑jury inconsistency but omission was not prejudicial given abundant independent identification and forensic evidence
Ineffective assistance / newly discovered evidence / § 33E relief	Commonwealth: counsel's strategic choices were reasonable; no showing that new technology would have produced different outcome	Moore: counsel erred (e.g., declined nolle on drug charge, failed to call blood‑spatter expert); new video technology would show no blood at booking	Tactical choices were not manifestly unreasonable; failure to present expert unsupported by affidavit; sister's hearsay about technology insufficient. No § 33E relief; convictions affirmed

Key Cases Cited

Commonwealth v. Silva–Santiago, 453 Mass. 782 (2009) (distinguishes third‑party culprit and Bowden defenses and discusses admissibility rules)
Commonwealth v. Bowden, 379 Mass. 472 (1979) (permitting challenge to adequacy of police investigation as Bowden defense)
Commonwealth v. Conkey, 443 Mass. 60 (2005) (standard for admitting third‑party culprit evidence)
Commonwealth v. Cassidy, 470 Mass. 201 (2014) (layered hearsay and reliability concerns for third‑party culprit evidence)
Commonwealth v. Caillot, 449 Mass. 712 (2007) (discussing layered hearsay and admissibility limits)
Commonwealth v. Phinney, 446 Mass. 155 (2006) (Bowden evidence relevance where suspect did not match broadcast descriptions)
Commonwealth v. Dew, 478 Mass. 304 (2017) (one‑on‑one showups generally disfavored but permitted with public‑safety justification)
Commonwealth v. Figueroa, 468 Mass. 204 (2014) (when showup identifications are impermissibly suggestive)
Commonwealth v. Meas, 467 Mass. 434 (2014) (good reason for prompt showup where firearm not recovered)
Commonwealth v. Austin, 421 Mass. 357 (1995) (public safety justification for prompt identification)
Commonwealth v. Caruso, 476 Mass. 275 (2017) (Confrontation Clause analysis for admission of prior recorded testimony)
Commonwealth v. Hurley, 455 Mass. 53 (2009) (adequate prior opportunity to cross‑examine for confrontation purposes)
Commonwealth v. Sena, 441 Mass. 822 (2004) (prior cross‑examination addressing substantially same interests satisfies confrontation clause)
Commonwealth v. Alicea, 464 Mass. 837 (2013) (§ 33E review scope and standards)
Commonwealth v. Gulla, 476 Mass. 743 (2017) (applying § 33E standard to ineffective assistance claims)