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Commonwealth v. Moffat

Supreme Judicial Court of Massachusetts

November 6, 2017

COMMONWEALTH
v.
SHANE MOFFAT.

          Heard April 3, 2017

         Indictment found and returned in the Superior Court Department on February 17, 2000.

         The case was tried before Tina S. Page, J., and a postconviction motion for deoxyribonucleic acid testing, filed on July 8, 2013, was heard by her.

          David A.F. Lewis for the defendant.

          Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. [1]

          GAZIANO, J.

         On October 11, 2001, a Superior Court jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and felony-murder in the shooting death of Malcolm Howard on May 13, 1999. Since that time, the defendant repeatedly has sought postconviction relief, while his direct appeal to this court has been stayed.

         Shortly after his conviction, the defendant timely filed a notice of appeal; his direct appeal thereafter was stayed while he pursued a motion for a new trial in the Superior Court. The motion judge, who was also the trial judge, denied that motion in March, 2005. The defendant appealed from the denial of his motion for a new trial, and, represented by new counsel, again sought a stay of his direct appeal in order to pursue a second motion for a new trial. That motion was allowed. His motion for funds for deoxyribonucleic acid (DNA) testing was denied, and, on January 6, 2012, the defendant filed an appeal from that denial; his January 10, 2012, motion for another stay of appeal was allowed. In July, 2013, the defendant filed a motion for postconviction forensic testing pursuant to G. L. c. 278A. The same judge conducted a hearing on the motion for DNA testing of four cigarette butts found near the crime scene in October, 2013, and denied it in December, 2013. In May, 2014, the defendant filed an appeal from the denial of his motion for postconviction relief. We consolidated that appeal with the defendant's direct appeal. In May, 2014, the defendant filed a motion to sever his direct appeal from the appeal from the denial of his G. L. c. 278A motion and a motion to stay his direct appeal. These motions were allowed.

         Thus, at this point, while the defendant's direct appeal remains pending, the issues before us are limited to the defendant's appeal from the denial of his motion for postconviction DNA testing under G. L. c. 278A.

         In denying the defendant's motion for testing of four cigarette butts collected by investigators near the crime scene, the judge found that the defendant had failed to meet his burden under G. L. c. 278A, § 7 (b), to establish that a reasonably effective defense attorney would have sought testing of the cigarette butts, and that DNA testing of them had the potential to result in evidence material to the identity of the perpetrator. We conclude that the judge did not abuse her discretion, and affirm the denial of the defendant's motion for postconviction testing of evidence.

         1. Evidence at the G. L. c. 278A evidentiary hearing.

         Our discussion of the evidence at the hearing on the defendant's motion for DNA testing is based on the written findings by the motion judge.

         In May, 1999, the defendant arranged for the victim to purchase $1, 300 worth of cocaine from the defendant's associates. To that end, on May 13, the victim, the victim's cousin, and the defendant all met. The defendant refused to allow the cousin to accompany them to the purchase, so the cousin lent the victim his Toyota Corolla automobile; the defendant and the victim dropped the cousin off in Hartford, Connecticut, before proceeding. After stopping briefly at the defendant's mother's house in Hartford to check his mail, the defendant and the victim drove to Fred Jackson Road in Southwick. The victim was shot in the back of the neck while sitting in the driver's seat of the Corolla.

         That evening, the defendant and a friend took a taxicab ride to a number of locations in Hartford. During the drive, the friend saw the defendant dispose of the barrel of a shotgun in a storm drain. The defendant also showed his friend a shirt with blood on it, and left a bag containing a pair of boots in the trunk of the taxicab. Police later determined that bloodstains on the boots matched the victim's DNA profile.

         On May 16, 1999, the victim's body was found at the bottom of a steep ravine approximately thirty feet from the edge of Fred Thompson Road. He was wearing a watch and jewelry, but there was no money in his pockets. During a general search of the environs of the crime scene, State police investigators recovered four cigarette butts near the scene. They were found near the edge of the road, north of the victim's body and a nearby telephone pole. The first cigarette butt was in the road, approximately 239 feet from the telephone pole, and approximately fourteen feet from the edge of the road. The second cigarette butt was 174 feet north of the same telephone pole, near the edge of the road. The third cigarette butt was 194 feet from the telephone pole, and the fourth was 151 feet north of the pole and approximately two feet from the edge of the road.

         On May 18, 1999, the Corolla was found near an abandoned factory in Hartford. Mail that the defendant had picked up from his mother's house on May 13, 1999, was scattered nearby, as was a baseball cap that the victim had been wearing. Detectives determined that they wanted to speak with the defendant about the shooting, but were unable to find him at the address where they believed he had been living. In November, 1999, they located the defendant in Florida; he was using an alias.

         The defendant agreed to speak with police in Florida. He denied having killed the victim and provided several inconsistent versions of what had occurred on May 13, 1999.[2] He also said that the $1, 400 he had in his bedroom in Hartford, and his disposal of part of a shotgun in a sewer, were unrelated to the shooting. The defendant described himself as a drug dealer and said that he had been involved in a planned drug transaction between the victim and the defendant's associates. After he was arrested and returned from Florida, the defendant led police to the area on Fred Jackson Road where the victim's body previously had been found.

         The defense at trial was that the defendant was merely present at the scene of the shooting because he had been instrumental in arranging the drug transaction, but that he had had no part in the shooting. He testified that the victim and the cousin arrived at his house on May 13 to purchase cocaine. The defendant, the cousin, and the victim drove to a convenience store, where they met two men, "Ayah" and "Quentin, " and followed them to an abandoned gasoline station in Granby, Connecticut, and then on to Fred Jackson Road. After the two vehicles were parked on the side of the road, Ayah and Quentin got out of their vehicle and walked toward the rear of the driver's side window of the Corolla. Standing outside the Corolla, Quentin shot the victim from behind. The defendant testified that the victim was killed in revenge because the victim and his cousin had robbed someone in New York during a prior drug transaction.

         The defendant's trial counsel was aware that police had found four cigarette butts near the crime scene, but did not seek to have them tested. Trial counsel referred to the cigarette butts in his closing argument, pointing to them as evidence supporting the defendant's trial testimony that he was not the only other person present at the scene of the shooting. Counsel argued:

"Did they belong to any of the people there? We don't know that, because the Commonwealth didn't test them. They didn't test the DNA against those cigarette butts to see if one belonged to [the victim], one of them belonged to [the defendant, ] and maybe the DNA would have been as unidentifiable as those fingerprints. But if two of them or even one of them belonged to one of them, then maybe the others would belong to some people, although the cigarettes could have been thrown out at any time by anyone. It's unlikely two or three groups of random people would throw cigarette butts out and they landed right next to each other. "

         In his initial affidavit in support of DNA testing, the defendant asserted his factual innocence. He did not state that anyone at or near the scene of the shooting had been smoking. After the hearing on his motion for postconviction testing, the defendant filed a supplemental motion and affidavit. The supplemental affidavit stated that, while the defendant had not been smoking at the scene, he recalled that "one or more of the three people I have identified as being at the ...


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