Commonwealth v. Moore

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SJC-11652
COMMONWEALTH vs. ANTHONY L. MOORE, JR.
Hampden. May 11, 2018. - October 31, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Felony-Murder Rule. Armed Home Invasion. Robbery.
Assault and Battery by Means of a Dangerous Weapon.
Firearms. Evidence, Third-party culprit, Hearsay,
Relevancy and materiality, Identification, Unavailable
witness, Testimony at prior proceeding, Testimony before
grand jury, Impeachment of credibility, Exculpatory.
Identification. Witness, Unavailability, Impeachment.
Practice, Criminal, Preservation of evidence, New trial,
Assistance of counsel, Capital case.
Indictments found and returned in the Superior Court
Department on April 16, 2010.
The cases were tried before John S. Ferrara, J., and a
motion for a new trial, filed on December 24, 2015, and
supplemented on January 25, 2017, was heard by him.
Russell C. Sobelman for the defendant.
Shane T. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
LOWY, J. On the evening of March 22, 2010, Margaret
Przewozniak was shot, execution style, by a masked gunman during
2
an armed robbery and home invasion in Springfield. A Hampden
County grand jury returned indictments charging the defendant,
Anthony L. Moore, Jr., with murder and various related offenses.
At trial, the defendant pursued a misidentification defense and
attempted to undermine the procedures employed by the
Springfield police. A Superior Court jury convicted the
defendant 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.1
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 G. L. c. 278, § 33E, to
order a new trial or reduce the murder verdict for a myriad of
reasons.2 We find no reversible error, and we discern no basis
1 The defendant also was convicted of nine related offenses.
2 The defendant submitted two appellate briefs; one in
support of his direct appeal and one in support of his appeal
3
to exercise our authority under G. L. c. 278, § 33E, to reduce
the degree of guilt or order a new trial. We therefore affirm
the judgments and the denial of his motion for a new trial.
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
from the trial judge's denial of his motion for a new trial.
Together, the briefs assert numerous claims of error, some of
which are barely comprehensible and lack compliance with our
rule governing appropriate appellate argument. Mass. R.A.P. 16
(a) (4), as amended, 367 Mass. 921 (1975). See Commonwealth v.
Cassidy, 470 Mass. 201, 209 n.9 (2014) (arguments unsupported by
"individual legal analysis or citation to the relevant legal
authority" are insufficient under rule 16); Kellogg v. Board of
Registration in Med., 461 Mass. 1001, 1003 (2011) ("Briefs that
limit themselves to 'bald assertions of error' that 'lack[]
legal argument . . . [do not] rise[] to the level of appellate
argument' required by rule 16"). However, we have reviewed all
his claims of error under our obligation pursuant to G. L.
c. 278, § 33E; none requires relief.
4
masked African-American man carrying a gun entered the home.
The intruder was dressed in black and wore a ski mask covering
his face; he was approximately six feet tall and slim.3 The
victim pulled down the intruder's mask, exposing part of his
face, and said, "What is this a joke? We went to school
together." In response, the intruder pointed the gun at
LaPalm's child and said, "This shit is serious. Your [child]'s
right there." He then fired a bullet into the kitchen floor.
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
3 According to the record, at the relevant time, the
defendant was approximately six feet, two inches tall and
weighed approximately 240 pounds. The defendant was twenty-
three years old at the time of the crime.
5
the men was shorter than the other, approximately five feet, six
inches tall; the other was over six feet tall and thin. The two
men ran past Brown's motor vehicle toward a light colored
minivan. One of the men was carrying a black box. Although he
was unable to see either perpetrator's face, Brown believed that
he saw the hands of both men and concluded that they were
African-American.
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
6
black winter hats. He asked the two men, "What's going on?"
The taller man responded, "We're hiding out in your backyard."
The witness went back inside and told his two roommates what he
had observed, and they all went outside. From the front porch
they observed two African-American men walking towards LaPalm's
apartment complex. When one of the students asked the two men
what they were doing, the taller man responded, "Do you have a
problem?" The three said, "No," and went back inside their
house.
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
7
were unable to find a matching vehicle in the registry of motor
vehicles database, police tried a different combination of the
letters and numbers that the woman had provided, and were able
to match a registration number that was different by one digit
to the license plate number of a vehicle matching witness
descriptions.4
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
4 Before confirming that the second registration number was
correct, an officer asked the daughter whether the "6" she
recorded could have actually been a "G." The daughter said that
she was unsure, but the officer replaced the "6" with the letter
"G" and got a match.
8
being escorted to the police cruiser in handcuffs, the defendant
said, without any prompting, "That's my little brother. He had
nothing to do with what happened earlier." Search of the
defendant uncovered, among other things, $1,610 in various
denominations, a bag of marijuana, and a small digital scale.
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
9
illuminate the defendant. The defendant's hands were cuffed
behind his back and an officer with a flashlight stood on either
side of the defendant to illuminate his face. The same process
was repeated with the defendant's brother.
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
10
person. With the exception of the mother, all the witnesses
excluded the defendant's brother as either one of the two men
they had observed that night near LaPalm's apartment complex.
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
11
of a firearm, and unlawful possession of ammunition without a
firearm identification card.5
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 G. L. c. 278, § 33E. See Commonwealth v.
Alicea, 464 Mass. 837, 840 (2013).
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
5 The defendant was acquitted of assault and battery on a
police officer.
6 Different portions of the police radio broadcast described
the perpetrators as: five feet, five inches tall; five feet,
six inches tall; five feet, seven inches tall; and six feet
tall.
12
portions of the recording containing physical descriptions of
the perpetrators was hearsay, and excluded them. The judge
instead allowed the defendant to play portions of the recording
that involved the changed vehicle registration number, as well
as portions containing information about the defendant having
been previously stopped by police in the same vehicle.7
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 Mass.
7 In light of the judge's ruling, defense counsel declined
to play the recording.
13
G. Evid. § 1105 (2018). As a result, we afford "wide latitude
to the admission of relevant evidence" insofar as it tends to
show that "a person other than the defendant may have committed
the crime charged." Silva–Santiago, supra at 800-801. "If the
evidence is 'of substantial probative value, and will not tend
to prejudice or confuse, all doubt should be resolved in favor
of admissibility.'" Id. at 801, quoting Commonwealth v. Conkey,
443 Mass. 60, 66 (2004), S.C., 452 Mass. 1022 (2008). However,
"because the evidence is offered for the truth of the matter
asserted -- that a third party is the true culprit -- we have
permitted hearsay evidence that does not fall within a hearsay
exception only if, in the judge's discretion, the evidence is
otherwise relevant, will not tend to prejudice or confuse the
jury, and there are other substantial connecting links to the
crime" (quotations and citation omitted). Silva–Santiago, supra
at 801. "Because the issue is one of constitutional dimension,
we are not bound by an abuse of discretion standard, but rather
examine the issue independently." Conkey, supra at 66-67.
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
14
officers stating for the purpose of identifying the perpetrators
what an unidentified person or persons said the perpetrators
looked like. See Commonwealth v. Cassidy, 470 Mass. 201, 216
(2014), citing Commonwealth v. Caillot, 449 Mass. 712, 721
(2007) (layered hearsay with uncertain sources unreliable and
inadmissible as third-party culprit evidence).
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
8 Although defense counsel did not specifically object to
the judge's adverse ruling, the fact that he made an offer of
proof as to those portions of the audio recording's
admissibility put the judge on notice of the purpose of the
proffered evidence. See Mass. R. Crim. P. 22, as appearing in
378 Mass. 892 (1979); Commonwealth v. Bonds, 445 Mass. 821, 828
(2006) ("We have consistently interpreted [rule 22] to preserve
appellate rights only when an objection is made in a form or
context that reveals the objection's basis"); Commonwealth v.
Jewett, 392 Mass. 558, 562 (1984), quoting Commonwealth v.
Graziano, 368 Mass. 325, 330 (1975), S.C., 371 Mass. 596 (1976)
(counsel is "not required to make further efforts 'in the face
of [a] judge's unequivocal adverse ruling'"). See also Mass. G.
Evid. § 103(a)(2) (2018). This is especially true in light of
the extensive sidebar discussions about the audio recording
throughout trial.
15
Accordingly, we review for prejudicial error if there is an
abuse of discretion. See Cassidy, 470 Mass. at 210, citing
Commonwealth v. Ridge, 455 Mass. 307, 317-318 (2009).
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
Mass. G. Evid., supra at § 1107(a). This defense suggests to
the jury "that the evidence at trial may be inadequate or
unreliable because the police failed to conduct the scientific
tests or to pursue leads that a reasonable police investigation
would have conducted or investigated," with the result that the
police may have missed "significant evidence of the defendant's
guilt or innocence." Silva–Santiago, 453 Mass. at 801.
"Because any statements introduced as part of such a defense are
offered not for their truth, but to prove that the police did
not take 'reasonable steps to investigate,' those statements are
not hearsay." Commonwealth v. Bizanowicz, 459 Mass. 400, 414
(2011), quoting Ridge, supra. See, e.g., Commonwealth v.
Caruso, 476 Mass. 275, 295 n.15 (2017) ("If the out-of-court
16
statement is offered for any purpose other than its truth, then
it is not hearsay").
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); Mass. G. Evid., supra at §§ 401,
402. See also Silva–Santiago, 453 Mass. at 801, quoting
Commonwealth v. Rosa, 422 Mass. 18, 22 (1996) (evidence "must
have a rational tendency to prove the issue the defense
raises"); Commonwealth v. Thompson, 382 Mass. 379, 383 (1981)
("all relevant evidence is admissible unless barred by an
exclusionary rule" [citation omitted]). Relevant evidence means
evidence having "any tendency" to make a consequential fact more
or less probable than it would be without that evidence. See
Mass. G. Evid., supra at § 401. As a result, evidence need not
carry any particular weight to be relevant; it must only provide
a link in the chain of proof bearing on an issue of consequence.
Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). If evidence
is relevant to the adequacy of the police investigation, the
judge must then determine whether the probative value of the
Bowden evidence is substantially outweighed by the danger of
17
unfair prejudice. See Mass. G. Evid., supra at § 403. See also
Harris-Lewis, supra.9
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
9 Our case law has not always been consistent regarding the
standard for excluding evidence because the evidence is unfairly
prejudicial. See Commonwealth v. Crayton, 470 Mass. 228, 249
n.27 (2014). In contrast to the "more exacting standard" of
admissibility under Crayton, supra, where "other bad acts"
evidence should be excluded where "its probative value is
outweighed by the risk of unfair prejudice," evidence offered in
furtherance of a defense under Commonwealth v. Bowden, 379 Mass.
472, 485-486 (1980), should be excluded only where its probative
value is substantially outweighed by the danger of unfair
prejudice. See Mass. G. Evid., supra at §§ 403, 404(b). The
standard of admissibility for Bowden evidence articulated in
Commonwealth v. Silva–Santiago, 453 Mass. 782, 803 (2009), did
not accurately reflect the appropriate balancing test. See id.(considering "whether the probative weight of the Bowden
evidence exceeded the risk of unfair prejudice to the
Commonwealth from diverting the jury's attention to collateral
matters"). We therefore clarify: Bowden evidence is admissible
so long as its probative value is not substantially outweighed
by its prejudicial effect. See Mass. G. Evid., supra at § 403.
18
to show that, once police stopped the defendant, they focused
their investigation on the defendant to the exclusion of all
others, even though the defendant did not match the physical
descriptions in the broadcast. See Commonwealth v. Phinney, 446
Mass. 155, 166 (2006), S.C., 448 Mass. 621 (2007). Therefore,
the portions of the audio recording that contained descriptions
of the perpetrators were relevant to the defendant's Bowden
defense, and nothing in the record suggests that the evidence's
probative value was substantially outweighed by a danger of
unfair prejudice. The portions of the recording containing
descriptions of the perpetrators should have been admitted at
trial.
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
19
numbers of the registration plate of the vehicle the defendant
had been driving, the defendant's positive identification by two
witnesses, the defendant's statement to police, and the DNA
evidence found in the vehicle and on the defendant's person.
The identification by witnesses were corroborated through
records from the Springfield school department indicating that
the victim and the defendant had attended school together, just
as the victim exclaimed when she had pulled down the taller
intruder's mask. The defendant was not prejudiced.10
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
10 The defendant also argues that the judge impermissibly
interfered with trial counsel's strategy and undermined his
right to present a defense by excluding portions of the
broadcast that included descriptions of the perpetrators, as
well as portions containing information about the defendant
having been stopped in the same vehicle on a prior occasion.
Although we agree that "it is the defendant and his counsel, and
not the judge, who must evaluate the risks of their trial
strategy," Commonwealth v. Vardinski, 438 Mass. 444, 455 (2003),
as previously discussed, the judge's evidentiary ruling did not
preclude the defendant from presenting a Bowden defense to the
jury. Cf. Commonwealth v. Bizanowicz, 459 Mass. 400, 419 (2011)
("the judge's exclusion of [evidence did not] deprive the
defendant of the ability to present a defense suggesting that [a
third-party] was the killer").
20
turned over a videotape recording of another unidentified
African-American man wearing a white T-shirt leaning against the
booking desk. Defense counsel did not, however, notify the
prosecutor that he had provided the incorrect booking videotape.
Instead, defense counsel made a strategic decision to offer the
incorrect booking videotape at trial to reinforce his Bowden
defense. Specifically, defense counsel intended to play the
recording to show that police had turned over the wrong
videotape, that the defendant did not have blood on his T-shirt
when he first arrived at the police station, and that the
victim's blood was transferred to the defendant's T-shirt
through contact with the booking desk. The judge subsequently
denied defense counsel's request to play the incorrect booking
videotape, but allowed him to question police witnesses about
the absence of visible bloodstains on the defendant's T-shirt.
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
21
Commonwealth v. Olszewski, 416 Mass. 707, 714 (1993), cert.
denied, 513 U.S. 835 (1994). If the defendant meets that
initial burden, "a balancing test is employed to determine the
appropriateness and extent of remedial action." Commonwealth v.
Willie, 400 Mass. 427, 432 (1987). The judge "must weigh the
culpability of the Commonwealth, the materiality of the
evidence, and the potential prejudice to the defendant." Id.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
Mass. G. Evid., supra at § 1102.
22
3. The showup identification. The defendant argues that
the one-on-one showup identification procedures conducted within
hours of the killing were so unnecessarily suggestive that they
offend due process. Although one-on-one showup identification
procedures are "generally disfavored as inherently suggestive,"
Commonwealth v. Dew, 478 Mass. 304, 306 (2017), they only raise
due process concerns if it is determined that the procedure was
unnecessarily or impermissibly suggestive. See Commonwealth v.
Figueroa, 468 Mass. 204, 217 (2014); Commonwealth v. Meas, 467
Mass. 434, 441, cert. denied, 135 S. Ct. 150 (2014), quoting
Commonwealth v. Martin, 447 Mass. 274, 279 (2006). Police are
permitted to conduct a showup identification if there is a "good
reason" to secure the prompt identification of a suspect. Dew,
supra. However, even where there is "good reason" for a showup
identification, "it may still be suppressed if the
identification procedure so needlessly adds to the
suggestiveness inherent in such an identification that it is
'conducive to irreparable mistaken identification.'" Figueroa,
supra, quoting Commonwealth v. Phillips, 452 Mass. 617, 628
(2008). See Dew, supra at 307 ("the evidence must be excluded
'[i]f there are special elements of unfairness'" [citation
omitted]); Commonwealth v. Austin, 421 Mass. 357, 361 (1995).
Here, there was good reason to conduct showup
identifications, and the procedures were not so unnecessarily
23
suggestive as to create a substantial risk of a mistaken
identification. The crime involved an armed home invasion and
homicide. The police had not located the firearm and the
perpetrators were still at large. See Meas, 467 Mass. at 441
("very good justification" for showup where firearm not
recovered at scene). The showup took place within three hours
of the shooting, see Figueroa, 468 Mass. at 218 ("good reason"
for showup two and one-half hours after shooting to determine
whether shooter was still at large); Bowden, 379 Mass. at 479(showup identification conducted two hours after murder
admissible), and there were no "special elements of unfairness,
indicating a desire on the part of the police to 'stack the
deck' against the defendant," Dew, 478 Mass. at 307, quoting
Commonwealth v. Leaster, 395 Mass. 96, 103 (1985). Public
safety was paramount, and a prompt identification served to
limit risk to the public and to avoid the escape of dangerous
suspects. See Austin, 421 Mass. at 364. Accordingly, the
showup identification procedures were not so unnecessarily
suggestive as to offend due process.11
11Relatedly, the defendant contends that the judge erred in
denying his motion for a new trial because the jury were not
given an instruction on cross-racial identifications. Because
this case was tried before our decision in Commonwealth v.
Gomes, 470 Mass. 352, 361–378 (2015), the judge was not required
to give a cross-racial identification instruction. See
Commonwealth v. Bastaldo, 472 Mass. 16, 23 (2015) ("Although it
was not error before Gomes for the judge to decline to give a
24
4. Use of unavailable witness's testimony from prior
proceeding. Because Brown died before trial, the Commonwealth
introduced transcripts of his testimony from a pretrial hearing
on the defendant's motion to suppress. The judge had previously
allowed the Commonwealth's motion in limine regarding this
testimony, over the objection of the defendant, before jury
selection on the first day of trial. Because defense counsel
did not renew his objection at trial, it was not preserved.12
At the suppression hearing, Brown testified that based on
his observations of the perpetrators' hands, he believed the two
cross-racial instruction, such an instruction must be given in
trials that commence after Gomes where there is a cross-racial
identification"). The defendant did not request such an
instruction and the judge's instruction adequately addressed the
issue of reliability in eyewitness identifications. We
therefore discern no error in the denial of the defendant's
motion for a new trial on this ground. See Commonwealth v. Bly,
448 Mass. 473, 496 (2007).
12In Commonwealth v. Grady, 474 Mass. 715, 719 (2016), we
held that a defendant need not "object to the admission of
evidence at trial where he or she has already sought to preclude
the very same evidence at the motion in limine stage, and the
motion was heard and denied." The rule announced in Grady does
not, however, apply retroactively. Id. See Commonwealth v.
Vazquez, 478 Mass. 443, 448 n.2 (2017). We therefore review to
determine whether any error created a substantial likelihood of
a miscarriage of justice. See Commonwealth v. Caruso, 476 Mass.
275, 292 (2017). We note, however, that even if the objection
had been properly preserved, Charles Brown's testimony would
have been admissible under the prior recorded testimony
exception to the hearsay rule under Mass. G. Evid., supra at
§ 804(b)(1).
25
men were African-American.13 During his testimony before the
grand jury, Brown testified, contrary to his testimony at the
suppression hearing, that on the night he gave his statement to
police, he was "under a lot of . . . stress," and that he was no
longer sure whether he had seen the shorter man's hands.
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 G. L. c. 278, § 33E, is also met." Commonwealth v.
Trigones, 397 Mass. 633, 638 (1986). As a result, "we review
the admission of the prior recorded testimony only to determine
13Before trial, suppression counsel withdrew, and the
defendant was represented by different counsel for his trial.
26
whether it offends the defendant's confrontation rights."
Caruso, 476 Mass. 275, 293 (2017).
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
27
-- Brown's observations of the perpetrators and the vehicle on
the night of the killing -- and his testimony was admitted at
the defendant's trial for that very same purpose. See Hurley,
455 Mass. at 61–62; Commonwealth v. Canon, 373 Mass. 494, 500–
501 (1977), cert. denied, 435 U.S. 933 (1978). The defendant
also had the same motive to cross-examine Brown -- to undermine
his identification. Therefore, these issues had been subject to
adequate cross-examination sufficient to satisfy the
confrontation clause and our review pursuant to
G. L. c. 278, § 33. See Caruso, 476 Mass. at 295; Sena, 441
Mass. at 833.
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
28
impeachment . . . , it is speculative to conclude that a
different approach to impeachment would likely have affected the
jury's conclusion." Hudson, supra, quoting Fisher, supra.
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
29
discovered evidence of video technology that was not available
at the time of the defendant's trial.
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 G. L. c. 278, § 33E, to determine whether
there was a substantial likelihood of a miscarriage of justice."
Commonwealth v. Gulla, 476 Mass. 743, 745-746 (2017), citing
Commonwealth v. Wright, 411 Mass. 678, 681–682 (1992), S.C., 469
Mass. 447 (2014). See Alicea, 464 Mass. at 845. "Under this
standard, [w]e consider whether there was an error in the course
of the trial (by defense counsel, the prosecutor, or the judge)
and, if there was, whether that error was likely to have
influenced the jury's conclusion" (quotation and citation
omitted). Commonwealth v. Long, 476 Mass. 526, 529 (2017).
Tactical decisions by an attorney are error only if they were
"manifestly unreasonable when made." Commonwealth v. Lang, 473
Mass. 1, 14 (2015).
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, G. L. c. 94C, § 32C (a). Before trial,
the Commonwealth sought to enter a nolle prosequi on that
30
charge, but defense counsel refused. Subsequently, trial
counsel used the possession charge to explain the defendant's
inculpatory statement to police, as well as his possession of
marijuana, a scale, and $1,610 in various denominations. The
charge was nol prossed after the close of evidence, but before
closing arguments.
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
14For a description of Sonja Farak's misdeeds as a chemist
at a State drug laboratory see, e.g., Committee for Public
Counsel Servs. v. Attorney Gen., 480 Mass. 700, 706-710 (2018).
31
the jury with a possible explanation -- apart from the inference
that these items had been secured in the strongbox that had been
stolen from the victim's bedroom -- for the defendant's
possession of marijuana, a digital scale, and $1,610 in various
denominations. The challenge trial counsel faced was not
potential prejudice because the defendant may have sold
marijuana, but overwhelming circumstantial evidence of guilt in
the murder along with compelling DNA evidence and the
defendant's inculpatory statement. Although not entirely
without risk, this strategy was not manifestly unreasonable.
See Commonwealth v. Vardinski, 438 Mass. 444, 455 (2003);
Commonwealth v. White, 409 Mass. 266, 277 (1991). Accordingly,
we discern no error.
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
32
called to testify. A claim of ineffective assistance of counsel
"for failure to call an expert witness is generally doomed where
'[t]he defendant's claim is not supported by any affidavits' to
disclose the content of the omitted expert testimony" (citation
omitted). Alicea, 464 Mass. at 850-851. Through cross-
examination of the Commonwealth's experts, trial counsel
elicited evidence that the bloodstains on the defendant's T-
shirt could not be classified as spatter stains, thereby
providing support for the defendant's theory that the
bloodstains on the defendant's T-shirt were transfer stains.
See Commonwealth v. Seino, 479 Mass. 463, 474 n.18 (2018)
(ineffective assistance claim fails where defense counsel,
through cross-examination of Commonwealth's experts, "elicited
evidence to support the defense's theory of how the defendant's
blood was transferred to the victim"). Accordingly, the
defendant's argument fails.
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
33
of the defendant or defense counsel. Commonwealth v. Jones, 432
Mass. 623, 633 n.6 (2000). Commonwealth v. Salvati, 420 Mass.
499, 507 (1995). The defendant must then show that the newly
discovered evidence "casts real doubt on the justice of the
conviction" (citation omitted). Id. at 506. In order to obtain
a new trial on the ground of newly discovered evidence, there
must be "a substantial risk that the jury would have reached a
different conclusion had the evidence been admitted at trial."
Commonwealth v. Moore, 408 Mass. 117, 126 (1990), quoting
Commonwealth v. Grace, 397 Mass. 303, 305–306 (1986).
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
G. L. c. 278, § 33E, to order a new trial or reduce the murder
verdict for various reasons. The defendant contends that he is
34
entitled to relief based on (1) insufficient "physical evidence"
connecting the defendant to the crime; (2) misconduct by members
of the Springfield police department; (3) the judge's failure to
apply the correct standard in ruling on the defendant's motion
for a new trial; (4) credibility issues involving the
Commonwealth's key witness; and (5) the exclusion of portions of
the police audio recording in contravention of the doctrine of
verbal completeness.
"When we undertake review under [G. L. c. 278,] § 33E, we
do not function as a second jury. . . . That is we do not
determine what verdict we would have returned but whether the
verdict 'was against the law or weight of the evidence, or
because of newly discovered evidence, or for any other reason
that justice may require'" (citation omitted). Commonwealth v.
Johnston, 467 Mass. at 705, quoting G. L. c. 278, § 33E. Having
carefully reviewed the defendant's arguments pursuant to our
duty under G. L. c. 278, § 33E, we conclude that the defendant
is not entitled to relief. Not only do many of the defendant's
supplemental claims have no arguable basis in either law or
fact, but also they are patently without merit. See note 2,
supra. For example, the defendant argues that he is entitled to
relief because LaPalm, the Commonwealth's key witness, "was a
drug addict." It is for the jury to make a determination of
credibility, Commonwealth v. Cannon, 449 Mass. 462, 469 n.17
35
(2007), and "[s]uch a determination does not inform whether
there was sufficient evidence of the crime," id.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
G. L. c. 278, § 33E.
Judgments affirmed.
Order denying motion for
a new trial affirmed.