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Commonwealth v. Snyder

Supreme Judicial Court of Massachusetts, Norfolk

September 8, 2016


          Heard: May 6, 2016.

         Indictment found and returned in the Superior Court Department on February 8, 2000.

         The case was tried before Robert A. Mulligan, J.

          Dana Alan Curhan (Victoria L. Nadel & Roger Witkin with him) for the defendant.

          Stephanie Martin Glennon, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ. [1]

          LENK, J.

         In March, 2003, the defendant was convicted by a Superior Court jury of murder in the first degree, on a theory of deliberate premeditation, in the 1994 shooting death of Joseph O'Reilly in Quincy. On direct appeal from that conviction, the defendant argues that the judge erred in not allowing the admission of testimony by an expert on eyewitness identification, and in allowing the admission of testimony concerning a stocking cap with eye holes that was seized from a vehicle the defendant was driving several months after the shooting. The defendant also seeks relief under G. L. c. 278, § 33E, and asks that his sentence be revised to run concurrently with an unrelated Federal sentence he was serving at the time of his conviction. Having reviewed the record, we affirm the conviction and discern no reason to exercise our authority to grant extraordinary relief.[2] Because the defendant's motion to revise and revoke his sentence was timely filed on the day of sentencing, but has not been acted upon, we remand the matter to the Superior Court for consideration of his pending motion.


         We recite the facts the jury could have found, reserving certain details for later discussion. At approximately 6:45 P.M. on September 29, 1994, Joseph O'Reilly was shot to death outside his girl friend's apartment on Quincy Shore Drive in Quincy. Police quickly responded to the scene. The victim's girl friend, Patricia Licciardi, reported hearing someone yell, "Hey, O'Reilly, we got you now, " followed by four to five gunshots. One of Licciardi's neighbors informed police that she had seen two white males in their twenties or early thirties in flight immediately after the shooting.

         Initial efforts by police to locate the attackers were unsuccessful, but interviews with area residents indicated that two white males had spent the later afternoon in the vicinity of the Neponset River Bridge, which overlooked Licciardi's apartment.[3] A police dog tracked a scent from the scene of the shooting to the bridge. The dog also alerted to a strong scent in the yard outside Licciardi's apartment, indicating that at least one person had been standing there for an extended period.

         From early in the investigation, police suspected the defendant of involvement in the shooting, because of a contentious history with the victim. Before being incarcerated in 1988, the victim had been involved romantically with a woman named Lisa Dinsmore, with whom he had a son.[4] In 1990, while the victim was in prison, the defendant -- then on parole -- began dating Dinsmore, and lived intermittently with her and her children, including the victim's son. Beginning in 1990 and continuing at least through 1992, the victim undertook extreme measures to interfere with the defendant's relationship with Dinsmore and also with the victim's son.[5] As a result of the victim's efforts, by June, 1991, the defendant was required to move out of Dinsmore's apartment as a condition of his parole.[6]In May, 1992, the victim wrote a letter to the defendant's half-brother, David Piscatelli, in which he threatened to kill the defendant, Piscatelli, other members of the defendant's family, and Dinsmore. In response to that letter, both the defendant and Piscatelli sought criminal complaints against the victim. At some point in 1992, the victim's mother accused the defendant of stalking her, and the defendant's parole was revoked. The victim then arranged to have his mother send the defendant contraband in prison, in an effort to complicate the defendant's efforts at having his parole reinstated.

         The defendant described the victim as a "puke rat, " and expressed to Dinsmore that he would "like to kill him." After the prison contraband incident, the defendant told Arnold Emma, an inmate with whom he was acquainted, that he would "take care of" his issues with the victim. The victim apparently anticipated some form of retaliation: upon his release from prison, [7] the victim kept several firearms in Licciardi's u apartment, ostensibly for protection from the defendant.[8] The victim also went regularly to the windows of the apartment to see if the defendant was hiding nearby. At the time of his death, the victim was carrying documents related to the criminal complaints that the defendant and Piscatelli had filed against him.

         Other evidence indicated that the defendant followed through on his expressed interest in killing the victim. The day after the shooting, William Petras, who worked at a dry cleaning store across the street from Licciardi's apartment, identified the defendant from an array of fifty photographs. According to Petras, the defendant had stopped by the store and asked to use the telephone at approximately 1:30 P.M. on the day of the shooting. In addition, Emma eventually implicated the defendant more directly in the shooting.[9] According to Emma, while incarcerated for an unrelated conviction in April, 1995, the defendant had gloated to him about killing the victim.[10] The defendant explained that he had had to kill the victim so that the victim did not kill him first.

         Prior proceedings.

         On February 8, 2000, a Norfolk County grand jury returned an indictment charging the defendant with murder in the first degree. See G. L. c. 265, § 1. Although a warrant issued the same day, at that time the defendant was incarcerated in a Federal prison in Pennsylvania as a result of a conviction on a Federal firearms charge.[11] In March, 2002, an interstate detainer agreement finally issued authorizing the defendant's transfer to Massachusetts for trial. Before trial, the judge allowed the defendant's motion for funds to obtain an eyewitness identification expert. The defendant then filed several additional motions, including a motion in limine to allow testimony from an eyewitness identification expert, and a motion for an evidentiary hearing regarding the expert's qualifications; both of those motions were denied. Trial commenced in February, 2003.[12]

         The defendant's theory of the case was one of mistaken identity. The defense cross-examined Petras and Emma extensively, and called an alibi witness who testified that the defendant had been at a dog racing track in Raynham at the time of the shooting. The defendant filed motions for required findings of not guilty at the close of the Commonwealth's case and at the close of all the evidence; the motions were denied. On March 10, 2003, after deliberating for three days, the jury found the defendant guilty of murder in the first degree on a theory of deliberate premeditation. He was sentenced to life in prison without the possibility of parole, to run from and after his Federal sentence.[13]


         1. Eyewitness identification expert.

         Before trial, the defendant filed a motion in limine to allow expert testimony by Dr. Steven D. Penrod, an eyewitness identification expert, as well as a motion for an evidentiary hearing pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-595 (1993), and Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), to establish the scientific validity of Penrod's opinion.[14] The judge denied both motions on the day of the hearing on the motions, with minimal explanation.[15]

         At trial, Petras testified regarding his identification of the defendant from the photographic array. Another witness, Carol O'Mahony, also identified the defendant, for the first time, in the court room. When interviewed by police on September 31, 1994, O'Mahony told police she had seen two men in the vicinity of the Neponset River Bridge on the day of the shooting. She was shown the same photographic array that had been shown to Petras, but she did not recognize any of the men depicted.[16] On direct examination, O'Mahony testified that she did not see either of the men in the court room that she had seen on the day of the shooting.[17] On cross-examination, however, she identified the defendant as one of those men. After this testimony, the defendant renewed his motion in limine to allow Penrod to testify as an eyewitness identification expert, without success.

         The defendant argues that the judge erred in not allowing Penrod to testify. As has become increasingly clear, "common sense is not enough to accurately discern the reliable eyewitness identification from the unreliable." Commonwealth v. Gomes, 470 Mass. 352, 366 (2015). Expert testimony may be an important means of explaining counterintuitive principles regarding the reliability of eyewitness identifications, or of challenging such principles. See id. at 365-366.[18] Eyewitness identification expert testimony also may be an important means of explaining how other variables relevant in a particular case can affect the reliability of the identification at issue. See id. at 378. Nonetheless, there are some circumstances in which such testimony permissibly can be excluded. See Commonwealth v. Watson, 455 Mass. 246, 257 (2009) (admission of eyewitness identification expert testimony "is not admissible as of right, but is left to the discretion of the trial judge"). A judge must consider whether "the tests and circumstances" on which the expert's opinion rests "provide a basis for concluding that the opinion is reliable." Commonwealth v. Santoli, 424 Mass. 837, 844 (1997), and cases cited. In addition, "the offered opinion must be relevant to the circumstances of the witness's identification." Commonwealth v. Santoli, supra. Furthermore, "the judge must conclude that the subject of the opinion is one on which jurors need assistance and can be helped, and will not be confused or misled, by the expert's testimony." Id.

         In reviewing the judge's assessment for abuse of discretion, see Commonwealth v. Watson, supra, we consider whether the judge made a "clear error of judgment in weighing" the relevant factors "such that the decision falls outside the range of reasonable alternatives" (citation omitted). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), and cases cited. The parties do not dispute that Penrod's opinions regarding eyewitness identifications were grounded in reliable scientific evidence. Nonetheless, the judge reasonably could have determined that Penrod's opinions were not relevant to the circumstances of the identifications at issue, and would not aid the jury.

         The motion in limine indicated that Penrod's testimony would aid the jury in assessing the reliability of Petras's identification of the defendant from the photographic array[19] by describing "factors affecting eyewitness identification including, but not limited to, the relationship between the passage of time and the recall of the event, the effect of post-identification events on memory, misidentification problems associated with photo spreads and photo arrays, including subtle cues and hints by the administrator(s), and how the confidence the identifier feels influences jury perception, even when the identifier is mistaken." Yet Petras first identified the defendant on the day after the shooting, apparently without any intervening events that could have affected his ...

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