Heard: May 11, 2018.
found and returned in the Superior Court Department on April
cases were tried before John S. Ferrara, J., and a
motion for a new trial, filed on December 24, 2015, and
supplemented on January 25, 2017, was heard by him.
Russell C. Sobelman for the defendant.
T. O'Sullivan, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
evening of March 22, 2010, Margaret Przewozniak was shot,
execution style, by a masked gunman during an armed robbery
and home invasion in Springfield. A Hampden County grand jury
returned indictments charging the defendant, Anthony L.
Moore, Jr., with murder and various related offenses. At
trial, the defendant pursued a misidentification defense and
attempted to undermine the procedures employed by the
Springfield police. A Superior Court jury convicted the
defendant of murder in the first degree on theories of
deliberate premeditation, extreme atrocity or cruelty, and
felony-murder with armed home invasion and armed robbery as
the predicate felonies.
appeal from his convictions and from the denial of his motion
for a new trial, the defendant claims error in (1) the
exclusion of evidence pertaining to the inadequacy of the
police investigation; (2) the Commonwealth's failure to
preserve and disclose exculpatory evidence; (3) the conduct
of a showup identification procedure; (4) the admission of
the prior testimony of an unavailable witness, and (5) error
in the denial of his motion for a new trial. The defendant
also argues that we should exercise our authority under G. L.
c. 278, § 33E, to order a new trial or reduce the murder
verdict for a myriad of reasons. We find no reversible error,
and we discern no basis to exercise our authority under G. L.
c. 278, § 33E, to reduce the degree of guilt or order a
new trial. We therefore affirm the judgments and the denial
of his motion for a new trial.
summarize the facts the jury could have found, reserving
certain details for our discussion of the specific issues
raised on appeal.
March, 2010, Sarah LaPalm lived with her three year old child
and the victim in a two-bedroom apartment in Springfield.
LaPalm and her child occupied the two bedrooms on the second
floor of the apartment, and the victim occupied a bedroom in
the basement. The victim sold cocaine and marijuana, and she
kept large sums of money in various denominations in a small
keyed strongbox in the basement.
after 9 P.M. on March 22, 2010, LaPalm, the child, and the
victim were in the kitchen of their apartment when a masked
African-American man carrying a gun entered the home. The
intruder was dressed in black and wore a ski mask covering
his face; he was approximately six feet tall and
slim. The victim pulled down the intruder's
mask, exposing part of his face, and said, "What is this
a joke? We went to school together." In response, the
intruder pointed the gun at LaPalm's child and said,
"This shit is serious. Your [child]'s right
there." He then fired a bullet into the kitchen floor.
immediately picked up her child and ran out the back door to
her neighbor's apartment, where she telephoned 911. As
LaPalm ran, she looked back into her kitchen and saw the
victim struggling with the intruder, who was dragging the
victim toward the basement. LaPalm also saw a second man
standing at the foot of the stairs outside her apartment. He
was approximately five feet, six inches tall, was dressed in
black, and was wearing a ski mask.
LaPalm fled, a neighbor, Charles Brown, was arriving home. He
pulled into his driveway, saw LaPalm banging on his front
door, and heard her "screaming," "There [are]
two masked guys in my house." Moments later, Brown saw
two men wearing masks and dressed in all black leave
LaPalm's apartment. One of the men was shorter than the
other, approximately five feet, six inches tall; the other
was over six feet tall and thin. The two men ran past
Brown's motor vehicle toward a light colored minivan. One
of the men was carrying a black box. Although he was unable
to see either perpetrator's face, Brown believed that he
saw the hands of both men and concluded that they were
also watched the masked men run through the parking lot. She
noticed that the taller intruder was carrying the
victim's strongbox. LaPalm then returned to her
apartment, where she found the victim in the basement, curled
up in a fetal position and moaning. The victim had suffered
two gunshot wounds, one to the front of her left thigh and
one to the back of her head. Gunshot residue indicated that
the muzzle of the gun had been pressed near or against the
victim's head when she was shot. The murder weapon was
who responded to the scene that evening learned from college
students who lived in a house next to the apartment complex
that, at about 9:15 P.M., one of them saw two
African-American men walking out of his backyard. One of the
men was about six feet, three inches tall and weighed over
200 pounds. The other was approximately five feet, nine
inches tall and skinny. Both men appeared to be between
eighteen and twenty-four years old and were wearing black
hooded sweatshirts and black winter hats. He asked the two
men, "What's going on?" The taller man
responded, "We're hiding out in your backyard."
The witness went back inside and told his two roommates what
he had observed, and they all went outside. From the front
porch they observed two African-American men walking towards
LaPalm's apartment complex. When one of the students
asked the two men what they were doing, the taller man
responded, "Do you have a problem?" The three said,
"No," and went back inside their house.
addition, an officer spoke with a woman and her young
teenaged daughter, who lived in a house down the street from
LaPalm's apartment complex. The woman said that as she
and her daughter left their house shortly after 9 £.M.
to go grocery shopping, she noticed a gray minivan she did
not recognize from the neighborhood parked directly in front
of her driveway. She also did not recognize either of the
vehicle's two occupants, both of whom were wearing black
hooded sweatshirts. After she saw the two men leave the
vehicle and run into her neighbor's backyard, the woman
instructed her daughter to write down the vehicle's
registration number on a piece of paper. She also noticed
white lettering on the top of the vehicle's windshield.
result, an officer issued a radio broadcast that police
officers should be on the lookout for a minivan with the
registration number that the woman had provided. Because
police were unable to find a matching vehicle in the registry
of motor vehicles database, police tried a different
combination of the letters and numbers that the woman had
provided, and were able to match a registration number that
was different by one digit to the license plate number of a
vehicle matching witness descriptions.
learned that the license plate number was associated with a
gray Dodge minivan that was registered to the defendant's
mother. They went to the address in Springfield but did not
locate the vehicle. However, at approximately 11:30 P..M.,
the same officers observed a gray Dodge minivan with the
applicable registration number idling on a street in
Springfield. The officers could see two men in the vehicle
but could not identify either of them.
minutes, additional officers arrived and they all approached
the vehicle with their guns drawn. The passenger, who was the
defendant's brother, was ordered out of the vehicle and
placed in handcuffs. When the defendant was ordered out of
the vehicle, he refused to comply and was forcibly removed.
At some point during the forcible removal from the minivan
and his being escorted to the police cruiser in handcuffs,
the defendant said, without any prompting, "That's
my little brother. He had nothing to do with what happened
earlier." Search of the defendant uncovered, among other
things, $1, 610 in various denominations, a bag of marijuana,
and a small digital scale.
remained at the location with the defendant and his brother
and, beginning at around 12 A.M. on March 23, 2010, police
conducted showup identification procedures of the two men. Of
the witnesses who participated in the showup identifications,
three had observed the vehicle in which the two men had been
traveling earlier that evening, three had observed the
perpetrators' faces, and two had observed the
perpetrators while they were wearing masks. The witnesses
were instructed that they were not to discuss the
identification procedures or the results with other
witnesses. They were also instructed that it was just as
important to clear an innocent person as it was to identify a
guilty one, and that the individuals they were about to see
may or may not be wearing the same clothing as they were
wearing earlier that evening.
witness was then separately driven to where the minivan was
parked and illuminated by the headlights of a police cruiser.
After each witness arrived, the defendant was escorted out
from the back of a police cruiser and stood in front of the
transport vehicle so that the vehicle's headlights would
illuminate the defendant. The defendant's hands were
cuffed behind his back and an officer with a flashlight stood
on either side of the defendant to illuminate his face. The
same process was repeated with the defendant's brother.
three of the witnesses who had seen the perpetrators'
vehicle earlier that evening -- Brown and the woman and her
daughter -- positively identified the minivan that the
defendant had been driving as the same vehicle they had seen
earlier that evening, with the woman pointing out the
lettering on the windshield she had seen earlier. Although
the woman was unable to express confidence that the defendant
was one of the two men she had seen getting out of the
minivan, her daughter identified the defendant as being the
same height and size as one of the two men she had observed
earlier that evening.
and Brown had seen both men while they were wearing masks,
while the three college students had observed both men at
close range without masks. Both LaPalm and Brown identified
the defendant as being the same height and build as the
taller perpetrator. LaPalm also believed that the defendant
was the same complexion as the intruder who was in her
kitchen. Two of the college students positively identified
the defendant, and the third was confident that the defendant
was the same size, build, and complexion as the taller man
that he had seen outside his house, but could not confirm
that the defendant was that person. With the exception of the
mother, all the witnesses excluded the defendant's
brother as either one of the two men they had observed that
night near LaPalm's apartment complex.
defendant was then placed under arrest, and police sent the
his T-shirt, jeans, and sneakers for testing. Although
officers observed no visible stains on the defendant's
white T-shirt during booking, a forensic scientist
subsequently discovered light red-brown bloodstains on it.
Forensic testing revealed the presence of the victim's
deoxyribonucleic acid (DNA) on that T-shirt. A test of the
defendant's hands for gunshot primer residue came back
search of the vehicle performed on March 24, 2010, revealed a
red-brown stain on the inside of the door on the
passenger's side of the vehicle. That stain tested
positive for the victim's DNA.
July, 2013, the defendant was convicted of murder in the
first degree on theories of deliberate premeditation, extreme
atrocity or cruelty, and felony-murder with armed home
invasion and armed robbery as the predicate felonies. The
defendant also was convicted of armed home invasion (two
counts), assault by means of a dangerous weapon (three
counts), unlawful possession of a firearm, and unlawful
possession of ammunition without a firearm identification
the defendant's direct appeal was pending in this court,
the defendant filed a motion for a new trial. The motion
judge, who had also been the trial judge, denied the motion,