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Commonwealth v. Barry

Supreme Judicial Court of Massachusetts, Middlesex

February 12, 2019

COMMONWEALTH
v.
ANTHONY BARRY (and nine companion cases).

          Heard: October 5, 2018. [1]

          Indictments found and returned in the Superior Court Department on July 23, 1999. The cases were tried before Robert A. Barton, J.; a motion for a new trial, filed on May 17, 2002, was heard by Elizabeth Butler, J.; and a second motion for a new trial, filed on November 20, 2014, was heard by Robert B. Gordon, J.

          Rosemary Curran Scapicchio (Jillise McDonough also present) for Anthony Barry.

          Claudia Leis Bolgen for Brian Cahill.

          Casey E. Silvia, Assistant District Attorney (Timothy Ferriter, Assistant District Attorney, also present) for the Commonwealth.

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

          LOWY, J.

         Shortly after midnight on April 17, 1999, Kevin McCormack and Brian Porreca were part of a group leaving a bar in Maiden with plans to continue their night at a club in Boston. They never made it. As the group prepared to leave, Porreca saw two longtime friends, Anthony Barry and Brian Cahill, run up to the vehicle that the group was entering. While Cahill stayed on the passenger side of the vehicle, shooting an Uzi at it, Barry fired a handgun into the back of McCormack's head as he sat in the driver's seat. Porreca and one of the women in their group were also shot, and Porreca retreated into the bar. Based largely on Porreca's testimony, Barry and Cahill were convicted of murder in the first degree.[2]

         The defendants each filed two motions for a new trial, each of which was denied. Their direct appeal is consolidated with their appeal from the denial of those motions, and they argue that multiple reversible errors occurred both during and after trial. We consider whether (1) there was sufficient evidence to support each defendant's murder conviction; (2) the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) newly discovered evidence warranted a new trial; (4) expert testimony regarding deoxyribonucleic acid (DNA) violated the defendants' rights to confrontation and due process; (5) the defendants' right to a public trial was violated; (6) discovery violations implicated the confrontation clause; and (7) a motion for the disclosure of a confidential informant's identity was erroneously denied. We affirm.

         Background.

         1. The shooting.

         We recite facts that the jury could have found and that are necessary to resolve the defendants' appeal, reserving some facts for later discussion. Porreca met some friends, including McCormack, at a bar in Maiden on the night of April 16, 1999. While there, Porreca drank four or five beers before he, McCormack, Lindsay Cremone, Kristen Terfry, Stephen Almeida, and John Whitson decided to go to a club in Boston. The group left the bar at 12:15 A.M. on April 17 and proceeded to Cremone's sister's car. McCormack sat in the driver's seat, Terfry sat in the front passenger seat, Cremone sat in the rear driver's side seat, and Porreca was preparing to enter the rear seat on the passenger's side[3] when he heard voices in the parking lot and looked up to see Barry and Cahill running in their direction. The men wore dark hoods that covered their ears, hair, and heads, but left their faces exposed. Cahill ran toward the passenger's side of the vehicle and fired a nine millimeter Uzi-type semiautomatic weapon into it, striking McCormack several times and shooting Porreca and Cremone twice each. Porreca had seen Barry running toward the driver's side of the car, and Cremone testified that a man ran to the driver's side of the vehicle, put a gun to McCormack's head, and shot him.

         After being shot, Porreca observed Cahill turning toward the vehicle and heard "a lot of gunshots" as he retreated into the bar. From the back seat, Cremone heard "two different types of firing." As Porreca entered the bar, he yelled "call 9-1-1" and approached Whitson, with whom the group had been socializing earlier. Porreca exclaimed, "Fuck'n Barry and Cahill" to Whitson, and approached Gene Giangrande's[4] girlfriend and told her to "[t]ell Gene I'm going to blow his fuck'n head off." Porreca explained that he said this because "[i]t was Gene Giangrande's crew, his friends who had just shot me, and I was mad at him."

         A .40 caliber pistol was found on the ground next to the driver's side of the vehicle. The Uzi used in the attack was found by two teenagers walking home at approximately 2:30 A.M. on April 17 on the sidewalk of Whitman Street, close to the bar. One of the teenagers who found the Uzi took it home, unloaded it, and hid it in the basement of his house before turning it in to the Maiden police the following day.

         2. Porreca's background.

         Porreca grew up in Medford and was friends with each of the defendants. Porreca introduced the defendants to each other in 1994 or 1995, after which the defendants became "close." Porreca was also friends with Giangrande, an area bookmaker and drug dealer; William Angelesco, a friend of Giangrande's who was known to be connected with organized crime; and McCormack, the victim. Porreca was a former professional boxer and collected debts owed to Giangrande, who would pay him in cash or with Percocet pills. Porreca had a lengthy criminal history. The jury also heard evidence of Porreca's substance abuse. He admitted to being addicted to opiates and having consumed two or three Percocet pills on the morning of the shooting.

         At the time of the murder, Porreca was under Federal investigation for his involvement in the kidnapping of an area drug dealer that took place in 1995 (kidnapping). Allegedly, Porreca and another man, in an attempt to determine the location of a shipment of marijuana from Mexico, kidnapped the drug dealer and brought him to a house in Medford. The man was tied up, sprayed with lighter fluid, and questioned as Porreca held a gun and another man held a lighter. After approximately one hour, Porreca and the other man released the kidnapped party. In early April 1999, Porreca received a summons to appear before a Federal grand jury, and met with several members of law enforcement to discuss the likely charges against him. Porreca left that meeting believing that he was facing fifteen or more years in prison if he did not cooperate with law enforcement; and if he did, his likely sentence would be reduced to approximately five years.

         3. Additional trial evidence.

         The jury also heard testimony of the police investigation into the shooting. Porreca was interviewed by police at the hospital and was initially uncooperative. He first said that "two white guys" whom he knew had conducted the shooting, but later stated that it was actually "two black guys." Eventually, Porreca told a State police trooper investigating the shooting that he would identify the shooters in exchange for a promise that he would not go to prison for his involvement in the kidnapping. Porreca received such an assurance from the United States Attorney's office, agreed to cooperate, and identified the defendants to the police.

         Pursuant to search warrants, police searched Cahill's residence in Randolph and recovered an ammunition can with a sticker from an army-navy style surplus store in Maiden with a large pair of Hatch-brand leather gloves. A search of Barry's apartment in Melrose also yielded two Nomex hoods[5] and an extra-large pair of Hatch gloves in a box with two bulletproof vests. The owner of the surplus store testified that two young men loosely matching the defendants' descriptions had purchased two pairs of Hatch gloves (one large and one extra-large), two Nomex hoods, and a can of .30 caliber ammunition one week before the shooting. A DNA expert testified that a saliva sample found on one of the Nomex hoods found in Barry's apartment matched Cahill's DNA.

         A medical examiner testified about the autopsy he performed on McCormack. Detailing McCormack's injuries, he first described the gunshot wound to McCormack's head and offered his opinion that that wound alone was lethal. He further testified about a separate, independently lethal gunshot wound to McCormack's back. The bullet removed from McCormack's head was a .40 caliber bullet that matched the pistol left on the scene, while the second lethal wound was caused by an undetermined, but different, caliber bullet. One .40 caliber shell casing was recovered from the crime scene, found in the backseat of the car, and fourteen nine millimeter shell casings were found on the scene -- thirteen on or around the car and one on the floor of the car.

         4. First motion for a new trial.

         In 2002, approximately two years after trial, the defendants filed their first motion for a new trial.[6] After a three-day evidentiary hearing, the motion was denied.[7] The primary arguments in the first motion centered on evidence discovered after trial that the defendants contended would have assisted their attack on Porreca's credibility. They also presented evidence that suggested that Giangrande and Angelesco had admitted to others that they, rather than the defendants, were the shooters.

         The defendants maintained that the Commonwealth intentionally withheld evidence that Porreca was brought by police to Saints Memorial Hospital in Lowell on April 21, 1999, four days after the shooting, where he complained that he was in heroin withdrawal. In those records, medical staff noted that Porreca stated to them to be "drug sick" and that one of the police officers accompanying him indicated that he had been vomiting for most of the previous night. At the evidentiary hearing, two doctors opined about Porreca's medical records.

         One of the doctors described the effects of opiate withdrawal and indicated that Porreca's behavior at the hospital was consistent with being in withdrawal, and that Porreca's actions immediately after the shooting were consistent with being intoxicated at the time. In contrast, the doctor who treated Porreca testified that, although he did not remember treating Porreca, he also did not document any symptoms of withdrawal. The treating doctor also testified that the records suggested that Porreca was not in withdrawal during the visit. The judge who heard the first motion for a new trial (first motion judge) credited the testimony of the doctor who had treated Porreca. The defendants contended that the Commonwealth withheld these medical records in violation of Brady, 373 U.S. at 87, which requires that the Commonwealth disclose to defendants all exculpatory evidence in its control. The first motion judge ultimately held that, although the medical records were exculpatory and were in the Commonwealth's possession, the defendants were not prejudiced by the Commonwealth's failure to produce the records because they were cumulative of other evidence presented at trial and did not "carry a measure of strength in support of the defendant." Commonwealth v. Bregoli, 431 Mass. 265, 272 (2000), quoting Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992).

          5. Second motion for a new trial.

         The defendants filed a second motion for a new trial in November 2014, raising several issues, including an argument that the Commonwealth withheld newly discovered pieces of exculpatory evidence. The motion was denied following a nonevidentiary hearing, the judge (second motion judge)[8] having deemed an evidentiary hearing unnecessary because the defendants did not raise a serious question under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and the briefs, transcripts, and supporting documents were sufficient to allow the second motion judge to make an informed decision.

         The defendants maintained that police reports discovered after trial constituted Brady violations, and that six pieces of newly discovered evidence cast doubt on the convictions and warranted a new trial. As the defendants now assert error in the denial of this motion for each of these pieces of evidence, we briefly detail each piece in turn.

         a. Orlando reports.

         The defendants discovered two reports authored after the trial by Sergeant Nunzio Orlando of the State police (Orlando reports), one dated July 17, 2001, and the other dated July 25, 2001. The July 17 report was heavily redacted and described information gleaned from a confidential informant, who stated in part that "Angelesco 'got straightened out' because he shot and killed 'Mucka' McCormack in Maiden." The July 25 report indicated that Angelesco had become a "made member" in the Boston mafia and that he had "'earned his bones' by killing 'Mucka' McCormack." The informant also stated that "Anthony Barry was not the shooter in the McCormack murder. Barry was behind the scenes as far as orchestrating McCormack's assassination, but Angelesco and Cahill were the actual shooters. In addition, Gene Giangrande allegedly drove the getaway vehicle." The second motion judge analyzed these two reports under Brady and determined that they were not possessed by the Commonwealth, were not exculpatory because they would not have been admissible at trial, and were not prejudicial because they would not have had an impact on the jury's conclusion.

         b. Montana report.

         A report written by Sergeant David Montana of the Medford police department (Montana report) relayed a conversation he had with an individual who implicated a third party, Robert Rennell, as the shooter in McCormack's murder. This individual further stated that "there was no way that Anthony Barry" was the shooter, and that Porreca had contacted him indicating that he was willing to alter his testimony in exchange for $100, 000. The second motion judge concluded that the Montana report had not been possessed by the prosecution, was inculpatory despite appearing exculpatory on its face because of the fruits of subsequent police investigation, and was not prejudicial because it was unlikely to have had an impact on the jury's conclusion.

         c. Bureau of Alcohol, Tobacco, Firearms and Explosives report.

         The final asserted Brady violation raised in the second motion for a new trial concerned an unredacted version of a report from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF report) detailing an interview of Porreca conducted on April 21, 1999. In the redacted version of the report, which the defense possessed at the time of trial, Porreca stated that he had spoken to a friend of McCormack, Johnnie Decologero, at the bar on the night of the shooting and that Barry did not get along with Decologero's brother, Paul. The unredacted version indicated, among other things, that Paul Decologero had initiated the 1995 kidnapping for which Porreca was under Federal investigation in 1999.

         The second motion judge determined that neither version of the ATF report was exculpatory, particularly because even the redacted version named the defendants as the shooters. He further concluded that the defendants had not established that the unredacted version of the report, created by a Federal agency, was ever in the possession of the Commonwealth. Finally, the judge determined that the defendants did not establish that they were prejudiced by not possessing the unredacted ATF report.

         d. Newly ...


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