Commonwealth v. MooreCommonwealth v. Moore
LOWY, J. On the evening of March 22, 2010, Margaret Przewozniak was shot, execution style, by a masked gunman during
On appeal from his convictions and from the denial of his motion for a new trial, the defendant claims error in (1) the exclusion of evidence pertaining to the inadequacy of the police investigation; (2) the Commonwealth‘s failure to preserve and disclose exculpatory evidence; (3) the conduct of a showup identification procedure; (4) the admission of the prior testimony of an unavailable witness, and (5) error in the denial of his motion for a new trial. The defendant also argues that we should exercise our authority under
Background. We summarize the facts the jury could have found, reserving certain details for our discussion of the specific issues raised on appeal.
In March, 2010, Sarah LaPalm lived with her three year old child and the victim in a two-bedroom apartment in Springfield. LaPalm and her child occupied the two bedrooms on the second floor of the apartment, and the victim occupied a bedroom in the basement. The victim sold cocaine and marijuana, and she kept large sums of money in various denominations in a small keyed strongbox in the basement.
Sometime after 9 P.M. on March 22, 2010, LaPalm, the child, and the victim were in the kitchen of their apartment when a
LaPalm immediately picked up her child and ran out the back door to her neighbor‘s apartment, where she telephoned 911. As LaPalm ran, she looked back into her kitchen and saw the victim struggling with the intruder, who was dragging the victim toward the basement. LaPalm also saw a second man standing at the foot of the stairs outside her apartment. He was approximately five feet, six inches tall, was dressed in black, and was wearing a ski mask.
As LaPalm fled, a neighbor, Charles Brown, was arriving home. He pulled into his driveway, saw LaPalm banging on his front door, and heard her “screaming,” “There [are] two masked guys in my house.” Moments later, Brown saw two men wearing masks and dressed in all black leave LaPalm‘s apartment. One of
LaPalm also watched the masked men run through the parking lot. She noticed that the taller intruder was carrying the victim‘s strongbox. LaPalm then returned to her apartment, where she found the victim in the basement, curled up in a fetal position and moaning. The victim had suffered two gunshot wounds, one to the front of her left thigh and one to the back of her head. Gunshot residue indicated that the muzzle of the gun had been pressed near or against the victim‘s head when she was shot. The murder weapon was not recovered.
Officers who responded to the scene that evening learned from college students who lived in a house next to the apartment complex that, at about 9:15 P.M., one of them saw two African-American men walking out of his backyard. One of the men was about six feet, three inches tall and weighed over 200 pounds. The other was approximately five feet, nine inches tall and skinny. Both men appeared to be between eighteen and twenty-four years old and were wearing black hooded sweatshirts and
In addition, an officer spoke with a woman and her young teenaged daughter, who lived in a house down the street from LaPalm‘s apartment complex. The woman said that as she and her daughter left their house shortly after 9 P.M. to go grocery shopping, she noticed a gray minivan she did not recognize from the neighborhood parked directly in front of her driveway. She also did not recognize either of the vehicle‘s two occupants, both of whom were wearing black hooded sweatshirts. After she saw the two men leave the vehicle and run into her neighbor‘s backyard, the woman instructed her daughter to write down the vehicle‘s registration number on a piece of paper. She also noticed white lettering on the top of the vehicle‘s windshield.
As a result, an officer issued a radio broadcast that police officers should be on the lookout for a minivan with the registration number that the woman had provided. Because police
Officers learned that the license plate number was associated with a gray Dodge minivan that was registered to the defendant‘s mother. They went to the address in Springfield but did not locate the vehicle. However, at approximately 11:30 P.M., the same officers observed a gray Dodge minivan with the applicable registration number idling on a street in Springfield. The officers could see two men in the vehicle but could not identify either of them.
Within minutes, additional officers arrived and they all approached the vehicle with their guns drawn. The passenger, who was the defendant‘s brother, was ordered out of the vehicle and placed in handcuffs. When the defendant was ordered out of the vehicle, he refused to comply and was forcibly removed. At some point during the forcible removal from the minivan and his
Police remained at the location with the defendant and his brother and, beginning at around 12 A.M. on March 23, 2010, police conducted showup identification procedures of the two men. Of the witnesses who participated in the showup identifications, three had observed the vehicle in which the two men had been traveling earlier that evening, three had observed the perpetrators’ faces, and two had observed the perpetrators while they were wearing masks. The witnesses were instructed that they were not to discuss the identification procedures or the results with other witnesses. They were also instructed that it was just as important to clear an innocent person as it was to identify a guilty one, and that the individuals they were about to see may or may not be wearing the same clothing as they were wearing earlier that evening.
Each witness was then separately driven to where the minivan was parked and illuminated by the headlights of a police cruiser. After each witness arrived, the defendant was escorted out from the back of a police cruiser and stood in front of the transport vehicle so that the vehicle‘s headlights would
All three of the witnesses who had seen the perpetrators’ vehicle earlier that evening -- Brown and the woman and her daughter -- positively identified the minivan that the defendant had been driving as the same vehicle they had seen earlier that evening, with the woman pointing out the lettering on the windshield she had seen earlier. Although the woman was unable to express confidence that the defendant was one of the two men she had seen getting out of the minivan, her daughter identified the defendant as being the same height and size as one of the two men she had observed earlier that evening.
LaPalm and Brown had seen both men while they were wearing masks, while the three college students had observed both men at close range without masks. Both LaPalm and Brown identified the defendant as being the same height and build as the taller perpetrator. LaPalm also believed that the defendant was the same complexion as the intruder who was in her kitchen. Two of the college students positively identified the defendant, and the third was confident that the defendant was the same size, build, and complexion as the taller man that he had seen outside his house, but could not confirm that the defendant was that
The defendant was then placed under arrest, and police sent the his T-shirt, jeans, and sneakers for testing. Although officers observed no visible stains on the defendant‘s white T-shirt during booking, a forensic scientist subsequently discovered light red-brown bloodstains on it. Forensic testing revealed the presence of the victim‘s deoxyribonucleic acid (DNA) on that T-shirt. A test of the defendant‘s hands for gunshot primer residue came back negative.
A search of the vehicle performed on March 24, 2010, revealed a red-brown stain on the inside of the door on the passenger‘s side of the vehicle. That stain tested positive for the victim‘s DNA.
In July, 2013, the defendant was convicted of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with armed home invasion and armed robbery as the predicate felonies. The defendant also was convicted of armed home invasion (two counts), assault by means of a dangerous weapon (three counts), unlawful possession
While the defendant‘s direct appeal was pending in this court, the defendant filed a motion for a new trial. The motion judge, who had also been the trial judge, denied the motion, and the defendant appealed. The appeals were consolidated.
Discussion. Where, as here, an appeal from the denial of a defendant‘s motion for a new trial has been consolidated with a direct appeal from a conviction of murder in the first degree, we review both under
1. Exclusion of third-party culprit and Bowden evidence. At trial, the defendant sought admission of an audio recording of the police radio broadcast published after the shooting that contained various witness descriptions of the suspects.6 Defense counsel argued that the audio recording was relevant to show that the police investigation was inadequate, thus pursuing a so-called Bowden defense, see Commonwealth v. Silva-Santiago, 453 Mass. 782, 802 (2009), citing Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). The judge concluded that the
The defendant contends that the physical description portions of the audio recording were admissible both as third-party culprit evidence and as evidence of an inadequate investigation under Bowden, and that the judge‘s exclusion of these portions constituted reversible error. We consider separately the admissibility of the audio recording under each theory advanced by the defendant because, “[a]lthough the same evidence often may be used to support a third-party culprit defense and a Bowden defense, these two defenses are ‘logically (and legally) distinct.‘” Commonwealth v. Hoose, 467 Mass. 395, 409 n.6 (2014), quoting Silva-Santiago, 453 Mass. at 800.
a. Third-party culprit evidence. “A defendant may introduce evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it.” Silva-Santiago, 453 Mass. at 800, quoting Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989). See
The defendant did not assert a third-party culprit defense at trial. Even if he had, however, we would discern no error in the exclusion, as third-party culprit evidence, of those portions of the audio recording that contained witness descriptions of the perpetrators. The recording was inadmissible “layered” hearsay, i.e., unidentified police
b. Evidence undermining police investigation. The defendant‘s alternate theory is that the portions of the audio recording containing physical descriptions of the perpetrators were admissible as part of his inadequate police investigation defense under Bowden. Because “the exclusion of evidence of a Bowden defense is not constitutional in nature,” we review the judge‘s ruling under an abuse of discretion standard. Silva-Santiago, 453 Mass. at 804 n.26. The defendant preserved his objections to the judge‘s rulings on this issue at trial.8
A defendant may rely on deficiencies or lapses in police investigations to raise the specter of reasonable doubt. Bowden, 379 Mass. at 486. A defendant asserting a Bowden defense may “challenge the adequacy of a police investigation and may use information concerning third-party culprits to question whether the police took reasonable steps to investigate the crime.” Ridge, 455 Mass. at 316, citing Bowden, supra. See
A defendant does not, however, have an unfettered right to elicit evidence regarding the adequacy of the police investigation. The admissibility of such evidence hinges first, and foremost, on its relevance. See Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004);
Here, because the descriptions were not being offered for their truth, i.e., to show that the defendant did not match the descriptions of the perpetrators relayed by police, the judge erred in concluding that the portions of the audio recording that contained descriptions of the perpetrators constituted inadmissible layered hearsay. See Commonwealth v. Reynolds, 429 Mass. 388, 390-392 (1999) (informants’ statements relayed from one officer to another not inadmissible layered hearsay under Bowden). See also Silva-Santiago, 453 Mass. at 803 (evidence inadmissible under third-party culprit theory may be admissible as part of Bowden defense). The descriptions were being offered
Although the judge erred in excluding those portions of the police broadcast, the error did not prejudice the defendant. The defendant was permitted to challenge the adequacy of the investigation as a whole, including that police failed to pursue other leads based on inconsistencies in the initial descriptions. See Commonwealth v. Alcantara, 471 Mass. 550, 562-563 (2015); See Ridge, 455 Mass. at 316. Defense counsel had an opportunity to cross-examine witnesses about the various descriptions and to argue the point in closing argument. See Commonwealth v. Wood, 469 Mass. 266, 278 (2014). Moreover, the various initial descriptions of the perpetrators’ heights are insignificant in view of the almost exact match of the actual
2. Failure to preserve and disclose the booking video tape recording. During pretrial discovery, the Commonwealth turned over video recordings that, the prosecutor claimed, showed the defendant‘s booking at the Springfield police station. Shortly before trial, defense counsel learned that the prosecutor had failed to turn over the correct video recording and instead had
The defendant now contends that he is entitled to a new trial because the Commonwealth failed to preserve and disclose the correct videotape recording. We disagree. A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden to establish “a ‘reasonable possibility, based on concrete evidence rather than a fertile imagination,’ that access to the [evidence] would have produced evidence favorable to his [or her] cause” (citation omitted). Commonwealth v. Neal, 392 Mass. 1, 12 (1984). See
We assume, without deciding, that cases addressing lost or destroyed evidence apply here because the Commonwealth failed to provide a videotape it claimed to have provided before trial, and that the defendant satisfied his initial burden of establishing a reasonable possibility that access to the videotape recording would have produced favorable evidence. We conclude that the Commonwealth exhibited no bad faith and, even if the Commonwealth had been negligent in failing to preserve the recording, the defendant was afforded a sufficient opportunity to remedy any prejudice. The defendant was allowed, through cross-examination of police witnesses, to elicit testimony about the absence of visible blood stains on the defendant‘s T-shirt. This was sufficient to remedy any prejudice to the defendant. See Commonwealth v. Harwood, 432 Mass. 290, 302 (2000) (“Our courts have fashioned or upheld various judicial remedies for the loss of evidence“). See also
3. The showup identification.
Here, there was good reason to conduct showup identifications, and the procedures were not so unnecessarily
4. Use of unavailable witness‘s testimony from prior proceeding.
At the suppression hearing, Brown testified that based on his observations of the perpetrators’ hands, he believed the two
The defendant makes two arguments related to the admission of transcripts of Brown‘s testimony. First, the defendant contends that Brown‘s testimony was not admissible because it does not fall within the prior recorded testimony exception to the rule against hearsay and that its introduction violated the defendant‘s confrontation rights under the Sixth Amendment to the United States Constitution. Second, the defendant argues that suppression counsel rendered deficient performance by not impeaching Brown with his prior grand jury testimony.
a. Admissibility of Brown‘s prior recorded testimony. “We need not decide the admissibility of [Brown‘s] testimony as prior recorded testimony under our common law rule. If the standards of the confrontation clause are met in the admission of [Brown‘s] testimony, the interests of justice test applied under
The admission of prior testimony does not violate the defendant‘s confrontation rights “when the declarant is unavailable, as a matter of law, to testify and ‘the defendant has had an adequate prior opportunity to cross-examine the declarant.‘” Caruso, 476 Mass. at 293, quoting Commonwealth v. Hurley, 455 Mass. 53, 60 (2009). An adequate prior opportunity means effective cross-examination at a prior proceeding addressed to “substantially the same interests” where the defendant had a “similar motive” to cross-examine the witness. Caruso, supra. It does not mean cross-examination that is “effective in whatever way, and to whatever extent, the defense might wish.” Id., quoting Hurley, supra at 62. See Crawford v. Washington, 541 U.S. 36, 57-59 (2004). “That a subsequent [proceeding] involves additional evidence introduced against the defendant does not mean that the opportunity for cross-examination at an earlier [proceeding] is inadequate to satisfy the confrontation clause.” Commonwealth v. Sena, 441 Mass. 822, 833 (2004).
Here, the issues at trial and the defendant‘s motive on cross-examination at the suppression hearing were sufficiently similar to satisfy the confrontation clause. Brown‘s testimony at the suppression hearing dealt with the same underlying events
b. Use of grand jury testimony for impeachment. The defendant contends that suppression counsel also rendered deficient performance by not impeaching Brown with his prior grand jury testimony. Failure to impeach does not, standing alone, constitute ineffective assistance of counsel. See Commonwealth v. Johnston, 467 Mass. 674, 696 (2014); Commonwealth v. Fisher, 433 Mass. 340, 357 (2001), citing Commonwealth v. Bart B., 242 Mass. 911, 916 (1997). “Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations, to which we will, even on § 33E review, still show deference.” Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), quoting Fisher, supra. “[A]bsent counsel‘s failure to pursue some obviously powerful form of
Here, suppression counsel should have cross-examined Brown with inconsistencies between his testimony before the grand jury and at the suppression hearing. We are confident, nonetheless, that suppression counsel‘s failure to do so had no bearing on the outcome of the case. The inconsistencies were not material, because the record contains an abundance of evidence with identifications of both the defendant and the vehicle he was driving that night; these instances include identification of the vehicle the defendant had been driving by the mother and her daughter and, more importantly, the positive identification of the defendant by two of the college students at the showup.
5. Motion for new trial. The defendant argues that his trial counsel was constitutionally ineffective in a number of respects, and that the motion judge, who was also the trial judge, abused his discretion in denying the defendant‘s motion for a new trial that raised these claims. Specifically, the defendant argues that his trial counsel was ineffective for (i) failing to consent to the nolle prosequi of the marijuana possession charge, and (ii) failing to call a blood spatter expert at trial. The defendant also argues that the judge erred in denying his motion for a new trial because of newly
Because the defendant was convicted of murder in the first degree, “[r]ather than evaluating an ineffective assistance claim under the traditional standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), . . . we apply the more favorable standard of
a. Ineffective assistance of counsel. i. Strategic choices regarding nolle prosequi. The defendant was indicted on charges of possession of a class D substance (marijuana) with intent to distribute,
The defendant now contends that his trial counsel was ineffective for failing to consent to the nolle prosequi, failing to challenge the indictment on the grounds that Sonja Farak was the confirmatory chemist,14 and putting evidence of the defendant‘s drug dealing activities before the jury.
The defendant has not shown that his trial counsel‘s tactical decision was manifestly unreasonable. To the contrary, this situation presents a textbook example of a reasonable strategic concession. Within minutes of apprehension, the defendant made a statement to police that seemingly implicated himself in the shooting. Based on the defendant‘s statement to police, it was a reasonable strategy at trial to justify those statements by suggesting that the defendant was referring to another criminal offense that, when compared to those before the jury, was seemingly innocuous. Moreover, this strategy provided
ii. Failure to call expert witness. The defendant contends that his trial counsel was ineffective in failing to offer at trial the testimony of a blood spatter expert. The defendant asserts that a blood spatter expert could have explained that the blood stain on the defendant‘s T-shirt was a transfer stain. He further contends that an expert should have been called to explain the significance of the absence of gunshot residue on the defendant‘s hands. Although the defendant offered the curriculum vitae of a blood spatter expert, the defendant has not submitted an affidavit from that expert describing the testimony that he would have offered if
b. Newly discovered evidence of videotape technology. The defendant argues that his motion for a new trial should have been allowed on the ground of newly discovered evidence that allegedly casts doubt on whether he had blood on his T-shirt at the time of booking.
A defendant seeking a new trial on the ground of newly discovered evidence must first establish that the evidence was not discoverable at the time of trial despite the due diligence
The defendant has failed to provide an expert affidavit showing that new video technology, not available at the time of the defendant‘s trial, could be used to show that the defendant did not have any blood on his T-shirt at the time of booking. The defendant has instead provided an affidavit from his sister concerning conversations she had had with various videography experts and what they had told her that this new technology would show. The judge did not err in denying the defendant‘s motion for a new trial on this ground. See Alicea, 464 Mass. at 850-851; Seino, 479 Mass. at 474.
6. Review under G. L. c. 278, § 33E. Finally, the defendant argues that we should exercise our authority under
“When we undertake review under [
Although the defendant contends that the case rests solely on unreliable witness identifications, the evidence of the defendant‘s guilt in this case was overwhelming. That the murder weapon was never recovered and that the defendant‘s DNA was not found inside the victim‘s apartment does not render all other evidence of the defendant‘s guilt nugatory. See Commonwealth v. Rakes, 478 Mass. 22, 32 (2017) (“A conviction may rest exclusively on circumstantial evidence“). Based on our careful review of the entire trial record and our consideration of each issue raised by the defendant, we decline to reduce the degree of guilt, order a new trial, or grant other relief under
Judgments affirmed.
Order denying motion for a new trial affirmed.