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Commonwealth v. Moore

Supreme Judicial Court of Massachusetts, Hampden

October 31, 2018


          Heard: May 11, 2018.

         Indictments found and returned in the Superior Court Department on April 16, 2010.

         The 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.

          Shane T. O'Sullivan, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

          LOWY, J.

         On the 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.[1]

         On 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.[2] 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.


         We summarize the facts the jury could have found, reserving certain details for our discussion of the specific issues raised on appeal.

         In 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.

         Sometime 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.[3] 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.

         LaPalm 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.

         As 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 African-American.

         LaPalm 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 not recovered.

         Officers 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.

         In 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.

         As a 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.[4]

         Officers 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.

         Within 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.

         Police 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.

         Each 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.

         All 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.

         LaPalm 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.

         The 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 negative.

         A 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.

         In 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 card.[5]

         While 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, ...

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