Argued January 9, 2015.
Indictments found and returned in the Superior Court Department on September 25, 2003.
The cases were tried before E. Susan Garsh, J., and a motion for a required finding of not guilty or, in the alternative, for a new trial, filed on March 21, 2011, was heard by her.
Janet H. Pumphrey for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ.
[41 N.E.3d 15] Duffly, J.
In June, 2005, a Superior Court jury found the defendant guilty of murder in the first degree in the April 26, 2003, shooting death of Paul Coombs on a New Bedford street. The defendant appealed from his convictions and also filed in the Superior Court a motion for a required finding of not guilty, pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), or, in the alternative, for a new trial, pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The defendant's motion for a stay of appeal was allowed so that he could pursue his motion in the Superior Court. After conducting an extensive evidentiary hearing, the motion judge, who had been the trial judge, denied both requests made in the motion. The defendant's appeal from that denial was consolidated with his direct appeal.
The defendant argues, as he did in his motion for a new trial, that there was insufficient evidence to sustain his murder convic-
tion. He argues further that a new trial is required because the Commonwealth failed to make mandatory disclosures of exculpatory evidence; the judge abused her discretion in allowing the Commonwealth's motion to exclude evidence of a third-party culprit, and in denying the defendant's motion to exclude hearsay testimony; there was prosecutorial misconduct; and his counsel was ineffective. The defendant also asks that we exercise our extraordinary power under G. L. c. 278, § 33E, to reduce the degree of guilt.
We affirm the convictions and the denial of the motion for a new trial, and discern no reason to reduce the degree of guilt pursuant to G. L. c. 278, § 33E.
We summarize the facts the jury could have found, reserving certain facts for later discussion.
On the evening of April 25, 2003, the defendant was at a private club on Mill Street in New Bedford, where he spent fifteen minutes loudly arguing on his cellular telephone with the victim. Vernon Rudolph, a long-time friend of both the victim and the defendant, was also present at the club. Through a window, Rudolph saw the victim " frisking" people on the sidewalk who were attempting to enter the club, and suggested that the defendant should go outside and engage in a fist fight with the victim, who was much larger than the defendant. The defendant declined, and he did not leave the club until after the victim had left the area.
The following morning, April 26, 2003, the victim told his girl friend that he wanted to " whoop" the defendant. That afternoon, the defendant was again at the club. He seemed upset and told the bartender that he was " tired of people [messing] with him." The defendant returned to the club that evening, but was now acting " tough" and saying that " [t]hings are going to change around here." He left the club at [41 N.E.3d 16] some point after 9:30 p.m., wearing a black hooded sweatshirt, black jeans, white and black sneakers, and batting gloves. At approximately 9:50 p.m. that evening, the victim and his girl friend were talking by telephone. At the end of the call, the girl friend heard the victim shout, " Why don't you fight me now?" At about the same time, sisters Ernestina and Beatriz Soares were driving on Cedar Street, approaching the intersection with Mill Street. Ernestina, the driver, waited at the intersection, where vehicles moving in their direction encountered
a stop sign, because a blue Lincoln Mark VIII automobile was stopped on Mill Street and had the right of way. The Mark VIII flashed its head lights, and Ernestina turned left onto Mill Street. The windows of the Mark VIII were dark, and Ernestina could not see if there was anyone in the vehicle.
As they drove down Mill Street, the sisters saw a man standing next to a Honda Accord automobile parked on the left side of the street, and another man standing on the opposite sidewalk. They described the man on the sidewalk as approximately six feet tall, well built, and African-American. He was bald or had a receding hairline, and was wearing dark clothing, including a hooded sweatshirt. The man standing by the Honda was " yelling" across the street, " Don't [mess] with me. I'm not the one to be [messed] with." After driving past, Ernestina saw the man who had been standing on the sidewalk approach the Honda and raise his hand; the sisters then heard multiple gunshots. While they proceeded further down Mill Street, Beatriz telephoned 911.
Also at approximately 9:50 p.m. that evening, Michael Couture was driving on Cedar Street approaching the intersection with Mill Street. Like the Soares sisters, he waited at the intersection because a stopped automobile on Mill Street had the right of way. When a white automobile started to swerve around the stopped vehicle, Couture drove through the intersection. He heard a loud noise to his left and saw a man fire multiple shots at a parked vehicle. Couture described the man as an African-American, between six feet and six feet, two inches tall, with a slim to medium build. The shooter was wearing dark clothes, including a mask, hat, or hood.
At approximately the same time, Rudolph, who had left
the club at about 9:40 p.m., was driving down Mill Street in his white Nissan
Maxima automobile. As he approached the intersection with Cedar Street, he
encountered a blue Lincoln Mark VIII with tinted windows blocking his way. He
was swerving around the Mark VIII when he saw a man he recognized as the
defendant standing in front of a parked vehicle on the other side of the
intersection; the defendant was wearing the same clothing he had been wearing
at the club. Rudolph saw the defendant step back and fire seven to eight shots at the parked vehicle. Rudolph, who had known the defendant from childhood, recognized the defendant's face when the defendant's hood slipped backwards as he fired. Rudolph also recognized the defendant by his body actions and by the way that he [41 N.E.3d 17] " bounce[d]." Rudolph drove to his mother's house and told her that he had just witnessed a shooting. His mother testified at trial that Rudolph arrived at 10 p.m. that evening, and stated that he had recognized the shooter, but refused to disclose the shooter's identity.
Officer Bryan Safioleas of the New Bedford police department was the first police officer to arrive at the scene of the shooting. Safioleas had been parked approximately one-half block away from the intersection of Mill and Cedar Streets until 9:40 p.m., and had noticed a blue Lincoln Mark VIII with tinted windows go around the block a " couple" of times. When Safioleas reached the Honda, the victim was unconscious and was bleeding from multiple gunshot wounds; he and another officer removed the victim from the Honda and attempted to administer cardiopulmonary resuscitation. After emergency medical technicians arrived, the victim was transported by ambulance to a local hospital, where he was declared dead.
Although police officers immediately identified the defendant as a suspect, they were unable to locate him for more than three months; the defendant's friends and acquaintances likewise did not see him after the shooting. Officers were able to locate the blue Lincoln Mark VIII. It had been wiped clean so that no fingerprints were identifiable either on the inside or outside of the vehicle. Ultimately, police linked the defendant to the vehicle.
On August 5, 2003, State police troopers arrested the defendant in Lynn, after troopers conducting surveillance of the area near a particular address saw the defendant entering a restaurant. When officers approached the defendant, he provided a false name and produced a driver's license in that name. He was unable to state the date of birth on the license, however, and after admitting his real identity, was placed under arrest. When a New Bedford police officer arrived to transport the defendant back to New Bedford, he noticed that the defendant was unshaven and sweating,
was wearing a soiled T-shirt, and had lost weight. When the officer told the defendant that he looked " bad," the defendant responded that he was under a lot of stress. During the drive to New Bedford, the defendant remarked that he was " enjoying the ride." The officer noted that there was not much to see because it was dark and they were driving on a highway, to which the defendant replied that he still was enjoying the ride because it was " going to be the last ride he was going to have for a long time."
The defendant did not testify. He called one alibi witness, Joseph Correia, who testified that he was in the club with the defendant until about 10:45 p.m. on the evening of the shooting.
The theory of defense focused on impeaching Rudolph's credibility. Defense counsel elicited testimony that the weather on the night of the shooting was foggy and rainy, and that Rudolph was almost one block away from the Honda when the shots were fired. Counsel also elicited testimony that Rudolph had not agreed to speak with police until after he learned that police were seeking to speak with him and his brother, and that Rudolph and the prosecutor had entered into an agreement that resulted in Rudolph's early release from incarceration.
[41 N.E.3d 18] Discussion.
The defendant raises a myriad of claims on appeal, all of which were considered and denied by the trial judge, in an exhaustive, detailed, and thoughtful eighty-page memorandum of decision, after an extensive, four-day hearing on the defendant's motion for a required finding under Mass. R. Crim. P. 25, or for a new trial under Mass. R. Crim. P. 30.
The defendant's brief reiterates all of the evidentiary issues that were considered and rejected by the motion judge, who discredited several of the witnesses and found explicitly, contrary to the defendant's repeated assertions, that the prosecutor did not lie, there was no prosecutorial misconduct, and there was no conflict of interest between the prosecutor and the defendant's trial counsel. As to certain ...