Com. v. Moore

• Decision Date: 18 July 1990
• Citation: 408 Mass. 117,556 N.E.2d 392
• Parties: COMMONWEALTH v. Thomas Paul MOORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 392

556 N.E.2d 392

408 Mass. 117

COMMONWEALTH v. Thomas Paul MOORE.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 8, 1990.

Decided July 18, 1990.

Mary Ellen Kelleher, Frank P. Marchetti, Somerville, with her, for defendant.

Michael Fabbri, Asst. Dist. Atty., Elizabeth Keeley, Asst. Dist. Atty., with him, for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree and armed robbery. His subsequent motion for a new trial on the ground of newly discovered evidence was denied. ¹ He claims error in the denial of the motion for new trial. He also claims that, at the trial, the prosecutor made improper final argument and the judge gave the jury erroneous instructions on the law. We affirm the convictions and also conclude that there is no basis for relief under G.L. c. 278, § 33E.

We recount the evidence at the trial in some detail. In July, 1985, the victim, a homosexual man, placed a personal advertisement in the 70th edition of "Local Swingers," a sexually oriented publication, seeking sexual contact with other men. The ad briefly described the victim and listed his home telephone number.

Sometime after 7 P.M. on Saturday, April 26, 1986, the victim left his apartment and drove to a homosexual bar in Boston. He was wearing a black leather vest. The victim left the bar alone around 8:30 P.M. and headed home, arriving there sometime after 9 P.M.

Shortly before 10 P.M., the victim's upstairs neighbor arrived home. She noticed the lights on inside the victim's apartment; the drapes were drawn and the victim appeared to have company. She locked the main inside door and her apartment door before she went upstairs.

At about 10 P.M., the neighbor heard what sounded like furniture being moved around downstairs. The noises, accompanied by voices and the sound of a television set, appeared louder over the victim's living room. After one-half hour, the noise died down and eventually stopped.

Just before 11 P.M., noises from the victim's apartment began again. This time the neighbor heard moaning, banging, and thud sounds coming from different areas of the apartment. Concerned, she started walking down the stairs toward the first floor hallway; the noises grew louder. As she approached the bottom of her stairs, she heard moaning. Terrified, she ran upstairs and telephoned her landlord, David Hartwell (who lived nearby), for help.

Hartwell responded, and found the victim naked and covered with blood on the hallway floor. The victim's arms were handcuffed behind his back, his mouth was taped shut, and his ankles were bound with cloth. Blood from multiple stab wounds stained the floor, baseboard and walls. Hartwell's roommate rushed into the front hallway, spoke briefly with Hartwell, and then ran back to his apartment to telephone the police. Hartwell knelt down next to the victim, and in an effort to revive him tried to remove the tape from his mouth and ties from his feet by using a knife. Emergency medical help came to the scene. Attempts to aid the victim failed, and he was pronounced dead at 12:04 A.M. on Sunday, April 27.

An assistant medical examiner conducted an autopsy. The victim's body was covered with numerous injuries. In addition to being bruised on the face, wrists, knees, and ankles, the victim had suffered stab wounds and two skull fractures. ² Any one of the fractures and nearly each of the stab wounds were potentially lethal. All of these injuries were inflicted while the victim was alive.

The assistant medical examiner also observed a number of lateral cuts across the victim's shins and on his knees. The doctor classified these as defensive wounds, i.e., inflicted as the limbs were drawn upward for protection. A sample of the victim's blood was taken and determined to be type "O." Oral cavity swabs tested positive for acid phosphatase, indicating the presence of semen; swabs of the rectal cavity tested negative. After the autopsy, the handcuffs were removed from the victim's wrists and preserved as evidence.

Shortly after the victim's body had been removed, the investigators converged on the premises and began their search for evidence. In the hallway where the victim was found lay a kitchen knife with a single-edged serrated blade measuring seven inches in length and just over one inch in width. The knife was in a pool of blood (type "O"), and had several human body hairs lodged in its hilt. A smaller knife, also stained with blood, lay nearby.

Although there were no signs of forced entry, the apartment appeared to have been ransacked. Drawers lay open, and pornographic magazines (some entitled "Local Swingers") and videotapes were strewn about the premises. The victim's diary, disclosing that some of his prior sexual contacts had been made by telephone, was also discovered. Various items of evidence were taken, including material that had been used to bind the victim's ankles together and a kitchen knife with a small amount of blood on it. Blood stains and bloody sneaker prints were noted. The victim's wallet was in his pants pocket but found to contain no money or credit cards.

Through their investigation of the murder scene and later efforts, the police determined that the victim's Baybank card and Mastercard, a small amount of cash, and the victim's black leather vest were all missing. And although an instruction booklet for a Polaroid "One-Step" camera was found in one of the victim's closets, and dozens of polaroid-type photographs (some depicting the inside of the victim's apartment) were found scattered on the floor, no corresponding camera was ever found in the apartment.

Shortly before 7 P.M. on Saturday, April 26, 1986, the defendant left his apartment and walked a short distance to a bar. There, the defendant met his housemate, Lee Ann Nelson, had a beer and used the telephone. A while later, the two left the bar and walked home, stopping along the way at a local market to buy a few items for Lee Ann's mother, Joan Nelson, with whom the defendant also lived. Just after 8 P.M., the defendant told Lee Ann and her mother that he was going to the racetrack with a friend. The defendant left wearing jeans, a dark T-shirt, his neck chain, a gray hooded sweatshirt, and his hightop sneakers.

About one hour after the victim was left for dead in his hallway, just before 12:10 A.M. on Sunday, April 27, the defendant walked into the Mystic Avenue, Medford, Baybank automatic teller machine (ATM) facility located about two and one-quarter miles from the victim's apartment. Over his gray sweatshirt, the defendant was wearing a black leather vest. Once inside the facility, the defendant inserted the victim's Baybank card into the ATM machine and tried to make a cash withdrawal. After the defendant's three unsuccessful attempts to withdraw funds, the ATM machine retained the card and tendered a receipt to that effect.

The defendant arrived home around 12:45 A.M., and spoke with Joan Nelson, who was awake watching the late news. He told her that he lost all but $11 at the racetrack and later went to a restaurant with his friend.

The next morning the defendant awoke about 9 A.M. and saw Lee Ann at breakfast. The defendant was dressed in jeans, a T-shirt, and a black leather vest. When Lee Ann asked the defendant about the vest, the defendant told her he had obtained it from his parents' house.

The Saturday following the victim's murder, the defendant met a friend of his, Paula Dalton, at a bar. The defendant told Paula that he was not going to put his motorcycle on the road for the summer and asked her if she wanted his leather vest. Paula said she would take it and she gave it to her boyfriend, Ronald Rais. When he learned that the vest belonged to the victim, Rais turned it over to the police. The vest tested positive for the presence of blood.

About a week and a half after the victim's murder, an employee of Baybank retrieved the victim's Baybank card which had been retained by the Medford Baybank ATM machine following the defendant's unsuccessful attempt to make a cash withdrawal. The employee also obtained the video cassette tape which showed the defendant using the victim's card and from it made a number of still photographs. The card was turned over to the authorities. It later tested positive for "occult" or invisible blood.

After obtaining a search warrant, State and local police searched the defendant's apartment on the afternoon of May 15, 1986. During the search, the defendant arrived home and was immediately placed under arrest. Seized from the apartment and the defendant were the following items: a buck knife and its case, a key ring with a key, a gray hooded sweatshirt, a pair of jeans, two neck chains, and three pornographic magazines (found beneath the defendant's mattress) which were similar to magazines found in the victim's home on the night of the murder. During the search, the police noticed two Polaroid One-Step cameras atop the refrigerator. The police later obtained both cameras.

The key and key ring, the buck knife and case, and the jeans (including one of the cuffs) all tested positive for blood. One of the pornographic magazines found was the 70th edition of "Local Swingers" containing the victim's personal ad soliciting male sexual partners and containing his home telephone number. One of the two Polaroid cameras, purportedly belonging to the defendant, tested positive for blood on the top, sides, and shoulder strap. The defendant was first seen with the camera one week after the victim's murder.

At the time of his arrest, after receiving Miranda warnings, the defendant told State Trooper Donald McPhee that sometime around 11:30 P.M. on Saturday, April 26, 1986, while at a bar in Somerville, a male friend approached him and asked if he wanted to earn some money. The defendant explained that his friend had a...