COMMONWEALTH VS. SHANE MOFFAT.
SJC-08733
Supreme Judicial Court of Massachusetts
November 12, 2020
Hаmpden. May 8, 2020. November 12, 2020. Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
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SJC-08733
COMMONWEALTH VS. SHANE MOFFAT.
Hampden. May 8, 2020. - November 12, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.1
Homicide. Evidence, Exculpatory, Opinion. Practice, Criminal, Discovery, Argument by prosecutor, Instructions to jury, Assistance of counsel, Capital case.
Indictment found and returned in the Superior Court Department on February 17, 2000.
The case was tried before Tina S. Page, J.; motions for postconviсtion discovery and for a new trial were considered by her; and following review by this court, 478 Mass. 292 (2017), a second motion for postconviction discovery was considered by David Ricciardone, J., and a motion for reconsideration was considered by Page, J.
Merritt Schnipper for the defendant.
Cynthia Cullen Payne, Assistant District Attorney, for
LOWY, J. In October 2001, a jury convicted the defendant, Shane Moffat, of murder in the first degree for the shooting death of Malcolm Howard.2 The defendant seeks reversal of his conviction, arguing that (1) the Commonwealth violated the defendant‘s due process rights by failing to investigate evidence that contradicted its trial theory and by presenting a trial theory that it knew or had reason to know was false; (2) two lay witnesses improperly testified as to the defendant‘s guilt without persоnal knowledge, violating the defendant‘s due process rights; (3) during closing argument, the prosecutor improperly urged the jury to draw an inference of guilt against the defendant due to his courtroom behavior; (4) the trial judge erred by providing incomplete jury instructions regarding circumstantial evidence; (5) trial counsel provided ineffective assistance for various reasons, including by failing to investigate third-party culprit evidence; and (6) the motion judges erred in denying the defendant‘s motions for postconviction discovery. The defendant also requests that we exercise our power pursuant to
Background. “We recite the evidence in thе light most favorable to the Commonwealth, reserving certain details for later discussion.” Commonwealth v. Tavares, 484 Mass. 650, 651 (2020).
1. The murder and aftermath.
During a meeting on May 10, 1999, the defendant offered to procure cocaine for the victim and
The victim first drove the defendant to the defendant‘s mother‘s house, where the defendant retrieved his mail. The victim then drove the defendant to Fred Jackson Road in Southwick, and shortly thereafter, the victim was shot with a shotgun. At 3:11 P.M., the defendant used the victim‘s cell phone to place a call. The cell phone signal from that call corresponded with a cell tower within three to five miles of Fred Jackson Road.
After the victim did not return with the Toyota by the promised time, Marshall attempted to contact both the victim and the defendant. The defendant told Marshall that the defendant had not seen or heard from the victim since earlier that day when the victim had drоpped off the defendant. Later that night, Marshall and the victim‘s girlfriend confronted the defendant about the victim‘s whereabouts, and the defendant again denied any knowledge.
That same evening, the defendant and his friend, Jarod Thompson, took a taxicab to various locations, including one location where the defendant and Thompson disposed of a shotgun barrel in a storm drain. During the ride, the defendant showed Thompson a shirt with blood on it. The defendant also left a bag in the taxicab, which contained the boots the defendant was wearing during the murder.
2. The investigation.
On May 16, 1999, a man discovered the victim‘s body lying on the side of an embankment on Fred Jackson Road.3 An autopsy later revealed that the victim‘s cause of death was а close range shotgun wound to his neck. On May 18, 1999, the Toyota was discovered outside an abandoned factory, and the driver‘s seat was soaked with blood. Officers recovered the victim‘s baseball cap from the brush next to the Toyota
The police later recovered from the storm drain the shotgun barrel, which was consistent with the type of shotgun used to murder the victim. The police also recovered from the taxicab a bag containing the defendant‘s boots and later determined that the victim‘s deoxyribonucleic acid was on the defendant‘s right boot.
3. Arrest and police interviews.
On May 21, 1999, a warrant issued for the defendant‘s arrest. Shortly thereafter, the police went to Thompson‘s house looking for the defendant, but they did not find him there.4 The defendant fled to New York, and then to Florida, where police there arrested him several months later on an unrelated charge.5 Over the course of several interviews with the defendant, both in Florida and in Massachusetts, the defendant provided the Massachusetts police officers with three different versions of the murder.6
First, the defendant claimed that when he could not reach the cocaine distributor, a man named “Ayah,” the victim dropped off the defendant, and the defendant did not see the victim again. Three days after the murder, a girl approached the defendant and handed him a bag containing three shotguns. The defendant gave two away, and because the third smelled like it had just been fired, he dismantled it and disposed of it in the storm drain.
The detectives then informed the defendant that the police had recovered the shotgun barrel and the defendant‘s boots from the taxicab, and that the police knew the defendant had used the victim‘s cell phone. The defendant then asked the detectives, “Why would I murder somebody for just thirteen hundred dollars[?]”
In his second version of events, the defendant claimed that he had brought the victim to meet Ayah and someone named Quentin. Upon their arrival, Ayah and Quentin entered the backseat of the Toyota, while the defendant sat in the front passenger‘s seat, and the victim sat in the driver‘s seat. As the fоur men talked, the defendant heard a loud bang and saw the victim slump over the steering wheel. The defendant then helped remove the victim‘s body from the car and placed it in the trunk of Ayah and Quentin‘s
Following the defendant‘s second version, the detectives gave the defendant a copy of Thompson‘s statement and photographs of the shotgun and the taxicab. The detectives reviewed the evidence against the defendant, and the defendant acknowledged that the police had enough evidence to convict. The interview was then interrupted, and when it resumed a couple months later, the defendant offered a third version of events.7
In this third version, the defendant, Marshall, and the victim met Ayah and Quentin at a convenience store. The defendant and the victim then followed Ayah and Quentin in the Toyota to a gasoline station and then to Fred Jackson Road, stopping in between to retrieve the defendant‘s mail from his mother‘s house. Once there, Ayah and Quentin got out of their car, and Quentin shot the victim while standing behind the driver‘s side window. Ayah and Quentin then removed the victim‘s body from the Toyota and dropped him down the embankment. After, Ayah drove the defendant away from the scene in Ayah‘s car, and Quentin drove the Toyota to Hartford.
As to motive, the defendant offered that the victim was killed because Marshall and the victim had robbed someone in New York City during a drug deal. The defendant admitted that he owned the murder weapon, that he had disposed of it, and that his fingerprints were on it. The defendant then agreed to take police to the murder location. Once at the murder site on Fred Jackson Road, the defendant admitted that he, not Ayah, had been wearing his boots during the murder, but he could not explain how the victim‘s blood had ended up on them.
4. The trial.
During his trial testimony, the defendant acknowledged that he was present during the murder, but he claimed that he did not shoot the victim and that he did not know that Ayah and Quentin had planned to do so. The defendant largely reiterated his third version of events, but he denied that the murder weapon belonged to him. On October 11, 2001, the jury convicted the defendant of murder in the first degree on the theories of felony-murder and deliberate premeditation. The defendant
Discussion.
1. Commonwealth‘s improper trial theory.
One week prior to trial, the Commonwealth received a heavily redacted Federal Bureau of Investigation (FBI) report from the United States Attorney‘s office, which contained a portion of an FBI interview of someone named Desmond Wolfe from December 9, 1999. The FBI report, which the defendant possessed prior to trial, stated:
“With regards to a murder that occurred in Springfield, Screw told Wolfe that he (Screw) and [the defendant] on the day of the murder, ‘licked a man down and now he died.’ Screw . . . fled to Florida with [the defendant] and telephoned Wolfe from Florida a few times. . . . Screw told Wolfe that the murder victim owed [the defendant] money and that he (Screw) witnessed [the defendant] commit the murder.”9
The Commonwealth‘s theory at trial was that the defendant acted alone. Conversely, the defendant‘s theory was that the defendant wаs present, but that Ayah and Quentin jointly murdered the victim without informing the defendant of their intent to do so. The defendant did not mention Screw at trial, or in any of the three versions of events he told the police.
On appeal, however, the defendant argues that the Commonwealth improperly failed to investigate the allegations contained in the FBI report that the defendant was not alone at the time of
a. Failure to investigate.
The Commonwealth had no obligation to investigate the FBI report. “While the prosecution remains obligated to disclose all exculpatory evidence in its possession, it is under no duty to gather evidence” or to conduct further investigation “that may be potentially helpful to the defense.” Commonwealth v. Wright, 479 Mass. 124, 140 (2018), quoting Commonwealth v. Lapage, 435 Mass. 480, 488 (2001). As quoted above, the FBI report references that Screw told Wolfe that the defendant shot the victim, and that Screw witnessed the murder. Nonetheless, assuming, without deciding, that the FBI report constitutes exculpatory evidence, the prosecutor satisfied his legal duty by providing the report to the defense prior to trial.
b. False or misleading theory.
“There is no doubt that the defendant would be entitled to relief if the prosecution ‘deliberately presented a false picture of the facts, either by knowingly using perjured testimony, failing to correct testimony when it became apparent that it was false, or actively suppressing evidence known to be exculpatory‘” (citation omitted). Commonwealth v. Earl, 362 Mass. 11, 15 n.4 (1972). Here, however, the Commonwealth did not present or fail to correct any false testimony.
So long as the prosecutor abides by his or her duty to provide the defendant with any material, exculpatory information within the Commonwealth‘s possession or control, see Commonwealth v. Ayala, 481 Mass. 46, 56 (2018), nothing requires the prosecutor to present that evidence to the jury. Contrary to the defendant‘s assertion, omitting evidence that helps the defendant and that counters the prosecutor‘s theory of the case does not equate to presenting or failing to correct false testimony. See Commonwealth v. Jewett, 442 Mass. 356, 363 (2004) (“It was not the prosecutor‘s duty to try the defendant‘s case for him by attempting to impeach the testimony of the Commonwealth‘s own witnesses with cryptic and inconclusive documents in the defense counsel‘s possession“). The prosecutor satisfied his legal obligation.
2. Lay witness testimony.
During trial, the Commonwealth called Marshall and Marshall‘s fiancée, Nicole Wilson, to testify as to their encounters with the victim and defendant at around the time of the murder. The defendant argues that several statements
a. Personal knowledge.
During trial, both Marshall and Wilson testified that the defendant was the last person with the victim. Marshall first testified that on the day the victim went missing, he had repeatedly called and paged the defendant because the defendant “was the last one with my cousin.” Marshall also testified that he brought the defendant over to speak to the victim‘s girlfriend, telling her “this is the last guy that was with [the victim].” Later, Wilson testified that she “knew [the defendant] was the last person with [the victim].” Specifically, the defendant argues that through these statements, the witnesses testified, without personal knowledge, that the defendant was the last person to see the victim alive.
Lay witnesses may only testify regarding matters within their personal knowledge. See Commonwealth v. Irene, 462 Mass. 600, 606 (2012), cert. denied, 568 U.S. 968 (2012);
b. Culpability.
Marshall also testified that he had previously referred to the defendant as the “guy . . . who killed my cousin.”10 This evidence was inadmissible. See Commonwealth v. Perez, 460 Mass. 683, 694 (2011) (error to permit witness to opine as to defendant‘s culpability). See also
Finally, Marshall‘s testimony was but one piece of evidence in an otherwise ornate puzzle. Viewing the evidence in the light most favorable to the Commonwealth, the defendant admitted to being present at the time of the murder, to owning and disposing of the murder weapon, and to using the victim‘s cell phone after the murder. The police found the defendant‘s mail in the Toyota, and the victim‘s blood was found on the defendant‘s boots, which the defendant admitted he was wearing during the murder. As such, we are convinced that “stripping the improper testimony from the other evidence, the judgment was not substantially swayed by the error” (quotation omitted). Perez, 460 Mass. at 695, quoting Commonwealth v. Lodge, 431 Mass. 461, 468 (2000).
3. Closing argument.
The defendant next argues that the prosecutor made several improper statements during his closing argument, violating the defendant‘s due process rights. Because the defendant did not object at trial, we review any error for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Andre, 484 Mass. 403, 417 (2020). We consider statements made during closing argument “in the context of the whole argument, the evidence admitted at trial, and the judge‘s instructions to the jury.” Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
The defendant argues that the prosecutor improperly invited an inference of guilt based on the defendant‘s courtroom behavior.
Prosecutors may “properly attack” a testifying defendant‘s credibility, see Commonwealth v. Donovan, 422 Mass. 349, 357 (1996), and such an attack may include comments on the defendant‘s demeanor on the witness stand, see Commonwealth v. Kozec, 399 Mass. 514, 521 (1987). Prosecutors may not, however, extrapolate from that demeanor and argue that the jury should then draw an inference as to the defendant‘s conduct during the alleged incident.12 Here, however, in at least one sentence of the closing, the prosecutor‘s improper link between the defendant‘s “stone cold” and emotionless testimony at trial and the “stone cold” nature of the killing went beyond benign comments on the defendant‘s credibility. See id. at 523-524 (improper and unfair for prosecutor to draw inference of guilt based on “prosecutor‘s perception of the defendant‘s [sorrowful] expression when the victim testified“); Commonwealth v. Borodine, 371 Mass. 1, 9-10 (1976), cert. denied, 429 U.S. 1049 (1977) (error for prosecutor to reference “absence of remorse,” as it was both immaterial and inappropriate). There was no evidence as to the defendant‘s demeanor when he killed the victim.
Nevertheless, we conclude that the error did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Gardner, 479 Mass. 764, 776 (2018). The prosecutor‘s characterizations comprised only two sentences of his thirty-two
4. Jury instructions.
The defendant next argues that the judge‘s jury instructions regarding circumstantial evidence and inferences were incomplete,14 thereby decreasing the Commonwealth‘s burden of proof.15 While the language the defendant asserts should have been included comprises accurate statements of the law, we have never said, and we do not now say, that such language is required.
When determining whether a jury instruction “lowers the criminal standard of proof, we consider the charge, taken as a
“Taken as a whole, the judge‘s instructions on circumstantial evidence and inferences ‘correctly stated the relevant principles and essentially cautioned the jury to be sure of the strength and logic of any inferences they drew.‘” Silva, 482 Mass. at 290, quoting Commonwealth v. Schand, 420 Mass. 783, 795 (1995). As the defendant concedes, the judge properly defined both direct and circumstantial evidence.16 The judge then correctly defined the nature of an inference and properly instructed the jury that they “may draw [an] inference even if it is not necessary or inescapable, so long as it is reasonable and warranted by the evidence.”17 See Brown v. Commonwealth, 407 Mass. 84, 89 (1990), S.C., 414 Mass. 123 (1993). See also Commonwealth v. Pires, 389 Mass. 657, 664 (1983) (“nature of an inference . . . [is] a concept intimately related to circumstantial evidence“). Finally, the judge provided a detailed and proper description of the Commonwealth‘s burden to prove the elements of the charged offense beyond a reasonable doubt, adhering to the then complete Webster instruction. See Commonwealth v. Webster, 5 Cush. 295, 319-320 (1850), modified by Commonwealth v. Russell, 470 Mass. 464, 477 (2015) (adding dеfinition of “moral certainty” to Webster instruction). There was no error.
The defendant next asserts that he was deprived of effective assistance of counsel because his trial counsel failed to investigate possible third-party culprit evidence. We review claims of ineffective assistance of counsel in cases of murder in the first degree for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Gulla, 476 Mass. 743, 745-746 (2017).
The defendant argues that his trial counsel failed to “make reasonable inquiries” into the allegations contained in the FBI report, which indicated that the defendant was not at the crime scene alone, as well as to investigate the knowledge of the defendant‘s brother regarding the other potential individuals involved. We conclude that the defendant‘s trial counsel did not provide ineffective assistance.18
Contrary to the defendant‘s contention that his trial counsel “did nothing,” the record indicates that the defendant‘s investigator followed up on the FBI report both before and during trial. The defendant has failed to present evidence as to how further investigation into a largely inculpatory document “might have accomplished something material for the defense.”19 Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Regarding the possibly helpful testimony of the defendant‘s brother, the defendant cites to a police report, which contains a summary of the police‘s interview with the defendant‘s brother. In that police report, however, the author explicitly states that the knowledge of the defendant‘s brother regarding the murder is based solely on what the defendant previously told his brother. Moreover, the defendant fails to assert how trial counsel‘s failure to elicit the testimony of the defendant‘s brother regarding his knowledge of other potentially involved individuals created a substantial likelihood of a miscarriage of justice.
Trial counsel presented a complete and thorough defense, contending that Ayah and Quentin, not the defendant, committed the murder. The jury‘s rejection of the defense was due to “weaknesses in the facts rather than any inadequacy of counsel.” Commonwealth v. Mercado, 383 Mass. 520, 528 (1981), quoting Commonwealth v. Key, 381 Mass. 19, 33 (1980).20
6. Posttrial discovery.
a. Procedural history.
The defendant filed two motions for posttrial discovery and a motion to reconsider the denial of his first posttrial discovery motion, among other motions.21 In support of those motions, the defendant primarily relied on three documents: the FBI report, a 140-page affidavit in support of a Federal search warrant from an unrelated Federal narcotics case (Federal search warrant affidavit), and handwritten notes attributed to Wolfe‘s attorney (attorney‘s notes). As stated supra, the FBI report contained Wolfe‘s statements to investigators that Screw told Wolfe that Screw had witnessed the defendant kill the victim. The Federal search warrant affidavit pertained to a Federal narcotics investigation into Wolfe, and while it mentioned Ayah and Screw, it did not mention thе murder. The nearly illegible attorney‘s notes appeared to state that Screw said Screw killed someone named DJ and that the defendant was with him when that occurred.
In 2004, the defendant moved for posttrial discovery of “any and all [documents] in the possession of the federal authorities” in which Wolfe is mentioned, arguing that the FBI report and the Federal search warrant affidavit demonstrated that the Federal
In 2018, the defendant filed a second motion for posttrial discovery requesting from the Commonwealth information and documents pertaining to himself, the FBI report, and Screw, arguing that the Commonwealth either possessed or had access to certain evidence, including exculpatory evidence in the Federal government‘s possession. In support of his contentions, the defendant again emphasized the FBI report and the attorney‘s notes. In October 2018, a different motion judge denied the defendant‘s second motion for posttrial discovery, concluding that the information sought would not reasonably uncover evidence warranting a new trial. The defendant appealed from both denials.
b. Analysis.
We review the denial of a motion for pоsttrial discovery for abuse of discretion. See Commonwealth v. Camacho, 472 Mass. 587, 598 (2015). To succeed on a posttrial discovery motion, “a defendant must demonstrate that it is reasonably likely that such discovery will lead to evidence possibly warranting a new trial,” and “the defendant must make a prima facie showing that the evidence sought would have materially benefited the defense and would have factored into the jury‘s deliberations.” Id. “A defendant cannot use a motion for postconviction discovery to engage in a ‘fishing expedition.‘” Commonwealth v. Ware, 471 Mass. 85, 94 (2015), quoting E.B. Cypher, Criminal Practice and Procedure § 42:30 (4th ed. 2014).
Neither judge abused his or her discretion in denying the defendant‘s motions. The defendant has not alleged any facts amounting to a prima facie showing that the requested evidence would exculpate him. To the contrary, the documents upon which the defendant relies either inculpate him or do not reference the murder,23 and are overwhelmingly based on second- or even third-level hearsay. Moreover, the defendant makes no showing that the Commonwealth has access to any exculpatory Federal documents. See Ayala, 481 Mass. at 58 (defendant “has not produced
7. Review under G. L. c. 278, § 33E.
We have reviewed the entire rеcord of this case pursuant to our responsibilities under
So ordered.