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Commonwealth v. Forte

Supreme Judicial Court of Massachusetts, Hampden

August 22, 2014

Michael Forte

Argued January 10, 2014

Page 470

Indictment found and returned in the Superior Court Department on September 24, 2008.

A pretrial motion to suppress evidence was heard by Constance M. Sweeney, J.; the case was tried before her; and a motion for a new trial, filed on September 26, 2012, was considered by her.

Kevin S. Nixon for the defendant.

Katherine A. Robertson, Assistant District Attorney, for the Commonwealth.

Present: Ireland, C.J., Cordy, Botsford, Gants, & Duffly, JJ.[1]


[14 N.E.3d 903] Cordy, J.

Shortly before 3:30 a.m. on July 27, 2008, Steven Donoghue, a homeless man, was stabbed in the alcove of a storefront at the intersection of State and Bliss Streets in downtown Springfield. He died several hours later following extensive surgery. Two young women, who had gone out for a late-night meal, reported the incident after having passed the victim alive and minutes later discovering him bleeding profusely. They had seen only one other person on the street that night. Through a series of identification efforts, including reliance on footage from surveillance videotapes, the defendant was identified and indicted as the perpetrator.

Following a trial at which the defendant represented himself with the assistance of standby counsel, the defendant was convicted of murder in the first degree on the theory of extreme atrocity or cruelty and sentenced to life in prison. Through appellate counsel, the defendant appeals from his conviction and from the denial of his motion for a new trial and for an evidentiary hearing.[2] He asserts that the judge, who served as trial judge and motion judge for all relevant matters, erred in denying

Page 471

his motion to suppress identifications, permitting the introduction of evidence of prior bad acts to show the defendant's state of mind, denying his motion for a required finding of not guilty, and denying his request to recall the two percipient witnesses, which was the subject of his motion for a new trial. In addition, he claims that his due process rights were violated by the Commonwealth's untimely disclosure of access codes needed to view the footage of the surveillance videotapes secured from the MassMutual Center (MassMutual), a local civic and convention center. Finally, independent of his appellate counsel, the defendant asserts that the Commonwealth knowingly procured false testimony in such a way that merits reversal of his conviction.

We conclude that the judge did not err in permitting the introduction of state of mind evidence where she provided numerous limiting instructions, and did not err in denying the defendant's motion to suppress and his motion for a required finding. We also conclude that the defendant was not denied timely access to the MassMutual footage in a way that prejudiced the preparation of his defense, that the judge did not abuse her discretion in denying the defendant's request to recall the percipient witnesses, and that the defendant's [14 N.E.3d 904] false testimony claim is unmeritorious. Because we find no reversible error and discern no basis to exercise our authority under G. L. c. 278, § 33E, we affirm the defendant's conviction.


We summarize the evidence presented by the Commonwealth at trial, reserving certain details for our discussion of the issues raised and including other details relevant to our discussion of the motion to suppress. At approximately 3 a.m. on July 27, 2008, Ivette Torres and her cousin, Jariely Vazquez, who were both eighteen years of age at the time, decided to get something to eat. They left Torres's house on Howard Street in Springfield, walked to Main Street, and turned left onto Main Street to head toward the Crown Fried Chicken restaurant, located on the northwest corner of State and Main Streets. As they walked along the west side of Main Street, they passed the victim, a local homeless man who was resting in the alcove of Chapin's Furniture Store at the intersection of Main and Bliss Streets. The women exchanged greetings with the victim, whom they had seen before in the neighborhood, and continued onward.

Page 472

Very shortly thereafter, the women noticed a man coming toward them from in front of the restaurant. As the man approached, he shouted at the women angrily, calling them " bitches and sluts." The women had almost reached the corner of State and Main Streets when they decided to cross Main Street because they were afraid of the approaching man. They observed that the man continued to walk south along the west side of Main Street, toward where they had seen the victim.

When the women reached the United Bank on the northeast corner of State and Main Streets, they looked across the intersection and saw that the restaurant was closed. They turned back to return to Howard Street and noticed the man who had been shouting at them washing his hands in a puddle " next" to where they had seen the victim. When they heard an automobile horn, the women turned away, and when they looked back the man was gone. The women walked south on Main Street, back in the direction from which they came, and crossed Main Street near Bliss Street. When they approached the alcove where they had seen the victim resting, they saw that his throat had been slit and he was covered in blood. Torres attempted to dial 911 from her cellular telephone but the battery had died, and the women continued south on Main Street until they were able to stop a passing motor vehicle and contact the police.[3] From the time they left Torres's apartment to the time they sought assistance in calling the police, the women did not see anyone else on Main Street other than the victim and the man who had shouted at them.

1. Identification.

The women initially described the man they had seen to the police as " a white male ... wearing a black T-shirt [and] tan pants," in his forties, " with a pot belly but not really fat or built." They described his hair as " bushy, blond, possibly whitish" or gray, and " scruffy." Both women observed that the man had white lettering on the front and back of his shirt and that he was walking strangely.[4] An officer broadcast a description of the perpetrator as approximately [14 N.E.3d 905] forty to fifty years of age, with " kind of bushy, shoulder-length, blondish-gray hair, wearing a

Page 473

black T-shirt and tan pants." [5] The women went to the police station and were shown many photographs of men who were under fifty years of age, none of whom they recognized.[6]

At around 6 a.m., a police detective was returning to the station from the scene when he saw the defendant leaving a small park wearing a black T-shirt and tan pants. He observed that the defendant's clothing was wet and his shirt was inside out, and that he fit the general description of the potential perpetrator.[7] The detective stopped, asked to speak to the defendant, and conducted a pat-down to ensure he had no weapons. The detective then informed the police dispatch that he had found an individual who fit the description of the perpetrator.

Shortly thereafter, another detective brought Torres and Vazquez to the area. The detective instructed only Torres to step out of the police cruiser and look at the man. She understood that she was to determine whether it was the man she had seen three hours prior. She later reported that she did not feel rushed. Torres told the detective and Vazquez that, although the man had similar clothing, he was not the man she had seen.[8] Afterward, the women returned to the station to look at more photographs, to no avail.

On July 28, the police acquired footage from the surveillance videotapes at MassMutual, located at the northeast corner of State and Main Streets, and from the restaurant. The MassMutual footage from around the time of the murder shows a silhouette walking south on the west side of Main Street, crossing in front of the restaurant, wearing a dark top and lighter pants.[9] The restaurant videotape, which provides a clearer image, depicts an individual, walking south on Main Street, who the police determined fit the description provided by the two women. Two officers familiar with the defendant, who had each seen him within

Page 474

the last two days, recognized him as the man in the restaurant videotape.[10]

Later that day, the two women returned to the police station, where each woman was shown the restaurant videotape separately and asked if she saw anybody that she did or did not recognize. Both confirmed that the man in the videotape was the man they had seen that night. Torres also indicated that it was the same man she had seen at the showup the day before, but that she had not recognized him then because his hair had been darker and wet and his shirt was inside out, hiding the white lettering. Immediately after watching [14 N.E.3d 906] the videotape, each woman was shown a photographic array containing eight individual color photographs, and each selected the defendant as the man she had seen that night and in the videotape.[11],[12] At trial, both witnesses watched the restaurant videotape and provided in-court identifications of the defendant as the man in the videotape and the man they had seen that night.

In addition to the introduction of the restaurant videotape and MassMutual footage at trial, other evidence corroborated the identification of the defendant as the man in the videotapes and the man the two women had seen that night. A security officer had seen the defendant in a park near Tower Square at approximately 8:20 p.m. on July 26 and had asked him to leave because he was drinking beer. Surveillance footage of the park admitted at trial revealed a man who closely resembled, both in physical appearance and attire, the man in the restaurant videotape and fit the description the two women had provided. A Springfield police officer also had observed the defendant, whom he recognized from a police department homeless initiative, at approximately 11:30 p.m. on July 26 wearing khaki-colored pants and a dark blue or black T-shirt with a white emblem on it.

Another individual testified that he had been in the park on the

Page 475

morning of July 27 and had seen the defendant there, whom he had seen around and knew to be homeless. Surveillance footage of the park showed the defendant, who fit the women's description.[13]

2. State of mind evidence.

The Commonwealth also introduced evidence of several incidents within the sixteen-hour period preceding the murder to establish that the defendant was in a hostile and aggressive state of mind at the time of the murder. On July 26, at approximately 11 a.m., the defendant was discharged from Providence Hospital after he had engaged in disruptive and violent behavior, including turning over the furniture in the television room, throwing a chair into the hallway, shouting obscenities, and threatening to kill people. At approximately 4 p.m. that day, the defendant had caused a disruption in a local supermarket, where he was " looming over" a female customer, shouting in her ear and saying that he wanted to kill her and kill Hispanics, and that he was drug-addicted and was going to start killing people because they made him sick. The store manager, who described the defendant as " unstable and dangerous," cautiously walked him to the front of the store, where police officers escorted him away. At approximately 8 p.m., the defendant appeared on a surveillance videotape in a park near Tower Square, a few blocks from the intersection of State and Main Streets, apparently chasing two other men out of the park, before he was asked to leave by a security officer for ...

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