Com. v. Daye

• Decision Date: 29 January 1992
• Citation: 411 Mass. 719,587 N.E.2d 194
• Parties: COMMONWEALTH v. Dennis DAYE (and eight companion cases). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 194

587 N.E.2d 194

411 Mass. 719

COMMONWEALTH v.Dennis DAYE (and eight companion cases). ¹

Supreme Judicial Court of Massachusetts Essex.

Argued May 7, 1991.

Decided Jan. 29, 1992.

Earle C. Cooley, Boston, for Richard Costa.

S. Jane Haggerty, Asst. Dist. Atty., for Com.

Michael A. Laurano, Boston, for Dennis Daye, was present but did not argue.

Leonard N. Mancuso, Cambridge, for Michael DeNictolis, was present but did not argue.

Before WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

After approximately seven weeks of jury trial, the defendants were each convicted on indictments charging two counts of murder in the first degree, two counts of armed robbery, and two counts of armed assault in a dwelling.Although the defendants Daye and Costa were tried by one jury and the defendant DeNictolis was tried by another, the same judge presided over both trials in the same courtroom.All the witnesses, with the following two exceptions, testified to the two juries simultaneously.Karen Moodie, who was a critical Commonwealth witness, testified to the Daye-Costa jury in the absence of the DeNictolis jury, and to the DeNictolis jury in the absence of the Daye-Costa jury.Lieutenant Spartichino testified on direct examination by the prosecutor to the two juries simultaneously, but he testified on cross-examination to the two juries separately.Also, counsels' opening statements and summations were made, and the judge's final jury instructions were given, to the two juries separately.The defendants appealed from all the convictions.While the appeals were pending in this court, the defendants moved for a new trial and requested an evidentiary hearing in connection with their motion.A single justice of this court ordered that the motion and request for an evidentiary hearing be transferred to the Superior Court.A judge of that court, who had been the trial judge, denied both the motion and the request, and the defendants appealed.Thus, we have before usthe defendants' appeals from the convictions and from the denial of the motion for a new trial.

On appeal, the defendants argue that they were denied their Federal and State constitutional rights to a fair trial (1) by the failure of the prosecution to make timely disclosure of exculpatory evidence relating to "other suspects," and (2) by the trial judge's undue limitation of their cross-examination primarily with regard to other suspects.They also argue that (3) the integrity of the grand jury was impaired by false or deceptive police testimony, (4) the judge's refusal to hold an evidentiary hearing concerning the voluntariness of out-of-court statements made by Karen Moodie and concerning her proposed testimony violated their rights to due process, (5) the judge's failure to give promised jury instructions concerning Moodie's credibility violated their due process rights, (6) under Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482(1980), they were entitled to but did not receive instructions to the juries that they could consider the failure of the police to carry out certain investigative procedures, and (7) the judge erred in admitting certain opinion evidence concerning analysis of bullet lead.We address these several issues below.We affirm the judgments.

The jury could have found that on January 7, 1985, the bodies of Robert Paglia and his wife, Patricia Paglia, were discovered in their home in Lynnfield.Robert had been killed by a single shotgun blast to the head and Patricia had been killed by multiple gunshot wounds to the head.Robert was a major cocaine dealer, and the police found drugs, drug paraphernalia, and $90,920 in cash in the Paglia home.The jury could have found that the Paglias were murdered in the course of an armed robbery.

As we have said, Karen Moodie was a very important witness.She gave testimony over a period of several days, the relevant portions of which are set forth in this and the next eleven paragraphs.We make no distinction between the testimony she gave to the Daye-Costa jury and the testimony she gave to the DeNictolis jury because whatever differences exist are of no consequence to these appeals.Also, we omit any reference to Moodie's testimony on cross-examination.On direct examination, Moodie testified that, in exchange for her cooperation and truthful testimony, she would be kept in protective custody, would receive treatment and counseling for her drug addiction, and would not be prosecuted for any involvement in the Paglia murders or for any crimes that she revealed during the course of the investigation.At the time of her testimony, Moodie was participating in a methadone maintenance program.

Moodie met the defendant Costa in 1980 and became romantically involved with him.They lived in various places and had a child together in 1982.In November, 1984, Moodie began living with Costa and their son in Rye, New Hampshire, at 2320 Ocean Boulevard (the Rye house).Some time later, the defendant DeNictolis moved into the house.In late November or early December, 1984, Moodie had a conversation with Costa about how they were going to make ends meet.When Moodie asked Costa what they were going to do for money, Costa replied that he was going to "make a move" on a cocaine dealer.In the next few weeks, Costa and DeNictolis held additional conversations about moving on a cocaine dealer.They discussed gaining entry to the house by disguising themselves as police officers.Costa first referred to the cocaine dealer as "Pag, that maggot," but later referred to him as "Paglia."

In December, 1984, Costa began to speak to Moodie about a third participant in the plan.He mentioned the name of Dennis Daye.Daye arrived at the Rye house during the early morning hours of a day late in December.A conversation ensued among Daye, DeNictolis, and Costa, and Costa mentioned a move on a cocaine dealer.Moodie also heard additional talk about the plan.She heard Costa on the telephone asking what the patrolmen were wearing for outer coats in Boston.Within a few days, two men showed up at the house with police uniforms.

At some point in December, Costa asked Moodie if her brother, who had a New Hampshire identification card, would go to a gun store and buy some ammunition.Moodie picked up her brother and took him to a gun store in New Hampshire, where he purchased some ammunition.At least one box of bullets was of the "hollow type."In the few remaining days before the murders, the three defendants spoke of the Paglias.Moodie hemmed the pants on one of the uniforms because they were too long.Costa made another call about what Boston police were wearing for winter coats.

On January 5, 1985, the defendants began to talk about the specifics of the plan.They had conversations about who would enter the house first.They also talked about what they would do about the Paglias' dogs.Costa asked DeNictolis, who was a friend of the Paglias, what time the babysitter came to the Paglias' house.In the late afternoon, the men practiced shooting guns in the cellar.They had a carbine, a .38 revolver, and another small handgun.A few weeks prior to this, Costa and Moodie had fired guns in the cellar.When they finished, Costa picked up the spent bullets, put them in an empty felt bag and buried it near a rock in the back of the house.

On January 5, Costa told Moodie that he"wanted to make the move the next day" and that they would "take off the coke dealer."Costa told Moodie that he planned to rob the dealer of his money.When Moodie asked Costa what would happen if he were recognized, Costa replied, "I'll have to blow him away."

On January 6, 1985, Costa told Moodie to wrap some empty gift boxes.When the boxes were wrapped, Costa, DeNictolis, and Daye left the house.Costa was wearing a suit and DeNictolis was wearing casual clothes.Daye was wearing a police uniform.Daye had a .38 caliber pistol and Costa had a smaller handgun.Costa's carbine was in one of the gift-wrapped boxes.The three left the house at about 2:00 P.M. and returned about two and one-half hours later.

Upon returning, the three defendants entered the Rye house hurriedly, and Costa called Moodie into the bedroom.He began to take money in the form of packages of bills with elastic bands around them out of his pockets.Costa separated out a few packages and told Moodie, "This is for us.Just put that in my top drawer.They don't know I have this."Moodie asked him about the amount of money and he replied, "We didn't get what we expected."Later in the evening, at approximately 8:30 P.M., Costa took the police uniform that Daye had worn, rolled it up in a ball, and put it in a paper bag.He then placed in the bag a rock from the fireplace.He also put one of the holsters, a gun, a hat, and some loose bullets from his right hand pocket into the bag.He instructed Moodie to throw the bag off the "old bridge down the street," and Moodie did so.

When Moodie returned to the house, the three defendants were engaged in conversation, and Moodie heard "bits and pieces" of it.The conversation was about "who would find the bodies."Costa asked DeNictolis when the babysitter came to the Paglias'.The three had some drinks and watched television, including the news.

While Costa and Moodie were in bed that night, Costa revealed to Moodie that Robert Paglia had recognized him.Costa said that Daye was with Patricia Paglia and he, Costa, was with Robert.Upon hearing a gunshot, Robert asked if that was his wife.Costa replied that it was and then told Robert to "[t]ake a good look at [Costa], because it's the last face you'll see."Costa then shot Robert.

Costa also told Moodie that he had entered the house first.Daye was behind him.They knocked on the door and Patricia Paglia opened the door.Costa told Patricia that he wanted to speak to her husband regarding a DEA investigation.Robert was taking a shower but came...