Argued: October 29, 2014.
Indictments found and returned in the Superior Court Department on February 25, 2010.
The cases were tried before Diane M. Kottmyer, J.
Stephen Neyman for the defendant.
Mindy S. Klenoff, Assistant District Attorney ( Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
[23 N.E.3d 94] Botsford, J.
A jury convicted the defendant, Edward Corliss, of murder in the first degree on the theories of deliberate premeditation and felony-murder, and of unlawful possession of a firearm, and robbery while armed and masked. The defendant appeals, claiming (1) the trial judge's restrictions on the defendant's attendance at a jury view were improper; (2) it was error to admit a witness's testimony that he saw the defendant with a gun more than one year before the shooting in question occurred; (3) the " destruction" by police of money seized [23 N.E.3d 95] from the defendant's residence without first examining the money for fingerprints or deoxyribonucleic acid (DNA) warrants dismissal of the charges against him; and (4) it was error to exclude the video and testimony of the defendant's expert showing that surveillance footage of the shooting distorted the height of the perpetrator. Finally, the defendant asks us to reverse his convictions under G. L. c. 278, § 33E. We affirm the convictions and decline to grant relief under G. L. c. 278, § 33E.
We recite the facts as the jury could have found them at trial, reserving some facts for later discussion. On the afternoon of December 26, 2009, Surendra Dangol, the victim, was working alone as a clerk at a convenience store located on Centre Street in the Jamaica Plain neighborhood of Boston. At approximately 2:45 p.m., a white motor vehicle stopped on Eliot Street opposite the store, at the intersection of Eliot and Centre Streets. A person wearing a hat and a bulky coat, and carrying a backpack, approached the vehicle and appeared to speak briefly with the driver, who had lowered the window. The vehicle then backed up on Eliot Street, away from the intersection with Centre Street and out of view of the store's surveillance cameras.
Minutes later, at approximately 2:56 p.m, a person who appeared to be the same individual wearing a bulky coat entered the store, put the backpack on the counter by the register and pointed a gun at the victim, who stood behind the counter. The victim put both hands in the air. The gunman handed his backpack to the victim, who opened the cash register and, still at gun point, transferred the money from the register into the backpack. Once the victim finished doing so, the gunman continued to point the gun at the victim, who stretched both hands out to either side. The gunman then shot the victim, and the victim fell to the ground.
The gunman took his backpack from the counter and left the store, running down Eliot Street in the same direction in which the white vehicle had driven in reverse before the robbery. Seconds later, the vehicle drove down Eliot Street toward Centre Street and the store, turned right onto Centre Street, and drove away. The store was missing $746 following the robbery.
A customer entered the store shortly after the shooting and heard a gasping noise emanating from behind the counter. The customer found the victim lying motionless and telephoned 911. Boston police officers and paramedics arrived at the scene. The victim was transported to a hospital, where he was pronounced dead shortly after his arrival. An autopsy revealed that the cause of death was a gunshot wound to the victim's chest.
Police secured the scene and reviewed video recorded by the store's surveillance cameras. The police made efforts to enhance the video of the white vehicle shown on Eliot Street immediately before and after the robbery and shooting, but were unable to determine the license plate or any details about the appearance of the driver.
The police showed photographs of the white vehicle to an automobile sales manager and a police officer with experience in automobile accident investigations, both of whom identified it as a Plymouth Acclaim made between 1989 and 1995. Both also noted that the vehicle in the surveillance video had hubcaps that were " after-market," i.e., not included with the vehicle when it was originally manufactured, and the officer noted that the brake light in the vehicle's rear window appeared not to be functioning properly.
The police obtained from the registry of motor vehicles a list of white Plymouth Acclaims registered in Massachusetts that [23 N.E.3d 96] were made between 1989 and 1995. One such vehicle was registered to Jacqueline L. Silvia, the defendant's wife, who lived with the defendant on Hyde Park Avenue in the Roslindale section of Boston. The police conducted surveillance of the white Acclaim in the weeks following the shooting and, in early January of 2010, observed Silvia driving it with the defendant in the passenger seat.
On January 15, 2010, police sought and obtained a search warrant for Silvia's Acclaim. Upon examining the vehicle at the police station, the police observed that, similar to the white vehicle in the surveillance video, the Acclaim had after-market hub-
caps, and the brake light in the rear window was close to burning out and, thus, producing less light than intended.
The defendant also admitted to three different people that he had committed a robbery and had shot someone at the store. In particular, on the night of the incident, while the defendant was visiting his brother, he pulled dollar bills of various denominations out of his pocket and told his brother that he had " pulled a score" during which he killed a man in the store who had lied to him by saying that there was no money in the register; he also stated that he had no remorse about the incident. Later, while being held in custody before trial, the defendant told a fellow inmate that he entered a store intending to rob it; that he shot a man inside the store (to whom the defendant referred as a " sand nigger" ); that the vehicle used in the offense was his wife's Plymouth; and that he disposed of the gun used in the shooting along Revere Beach. The defendant told another inmate that he robbed the store while wearing a wig and a puffy outfit, and shot the store clerk; he killed the clerk, he explained, to ensure that there would be no witnesses to the robbery. The defendant added that he had disposed of the gun used in ...