Com. v. Mosher
| Decision Date | 27 January 2010 |
| Docket Number | SJC-08949. |
| Parties | COMMONWEALTH v. Mark R. MOSHER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
v.
Mark R. MOSHER.
[920 N.E.2d 289]
Susan J. Baronoff, Boston, for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.
Present: MARSHALL, C.J., SPINA, COWIN, BOTSFORD, & GANTS, JJ.
GANTS, J.
On February 11, 2000, a jury convicted the defendant of murder in the first degree based on deliberate premeditation, as well as related charges of home invasion and unlawful possession of a firearm. Represented by new counsel, the defendant appeals from his convictions and from the order of a Superior Court judge denying his motion for a new trial. On appeal, the defendant argues that (1) his trial counsel was burdened by an actual conflict of interest due to his ongoing representation on an unrelated matter of a witness testifying for the prosecution; (2) separate and apart from the conflict of interest, defense counsel's representation at trial was so woefully inadequate as to deprive the defendant of his right to effective assistance of counsel; (3) a witness's reference in testimony to the defendant's incarceration unfairly prejudiced the jury; and (4) the prosecutor's closing argument improperly invited the jury to convict the defendant without finding that he was the shooter. We affirm the defendant's convictions and find no basis on which to grant relief under G.L. c. 278, § 33E.
The evidence at trial. We summarize the facts the jury could have found from the evidence at trial, reserving certain details for our analysis of the issues raised on appeal. On the morning of December 22, 1998, David "Shorty" Tokarz (victim) was found dead in his West Brookfield home. When discovered, he lay on the floor, in rigor mortis, clothed in only a towel, having suffered three gunshot wounds. He had been shot twice through the towel: once in the hip and once in the abdomen. The entry and exit wounds from these two shots indicated that the bullets had traveled in a downward path through the victim's body as he stood and faced his assailant. The third gunshot wound was to his head, inflicted as the victim lay on the floor, wounded and bleeding from the first two shots; the barrel of the pistol was inside the victim's ear when the final shot was fired. An old, rusty, and inoperable shotgun lay just inside the door to the house, at the bottom of a set of stairs, and a splintered chunk of its wooden stock lay on the floor nearby. Because the victim's girl friend, Annette Broberg, testified that she had telephoned the victim at his home and spoken with him between 9:30 and 10 P.M. on December 21,
and had telephoned him again between
11:30 P.M. and midnight, but received no answer, the victim likely was killed at some time between the two telephone calls.1
The key witnesses for the prosecution were James Osipov and Neil Potter, who each had been charged as an accessory before the fact to the victim's murder.2 Both testified at the defendant's trial despite these pending charges. There was no evidence that any promises, rewards, or inducements had been offered or provided in return for their testimony.3, 4
At the time of the murder, the defendant lived with Craig Bosse and Bosse's girl friend, Kimberly Martelli, at Martelli's home on South Street in Barre. Osipov testified that he was at the South Street residence in the early evening of December 21, drinking alcohol with the defendant and Bosse until about 7:30 P.M., when he went home. A short time later, the defendant telephoned him, and he returned to the South Street home, picked up the defendant, and drove him to Potter's home, which was approximately five minutes away. Both Osipov and Potter testified that, at the defendant's request, Potter gave the defendant a plastic bag containing a loaded .38 caliber revolver as well as a pair of "motorcycle" gloves.5
The defendant and Osipov then returned to Osipov's house. The defendant asked Osipov to inspect the revolver to ensure it was functioning properly, stating that it was best not to take "a broken sword into battle." Osipov put on the gloves that Potter
had given the defendant, inspected the firearm in the driveway of his home, and returned the firearm and gloves to the defendant, informing him that the firearm looked operational.
Osipov then lent his old, beaten-up truck to the defendant. He testified that he had an idea what was happening and wanted nothing to do with it. The defendant drove the truck away, leaving Osipov at home, but returned in the vehicle approximately forty-five minutes later, with the only functional muffler on the truck ripped off, the tailpipe dragging, and the undercarriage scratched. The defendant told Osipov to take care of the dragging tailpipe, which Osipov did by wiring it up with a coat hanger. The defendant then left again in the truck.
He returned one hour later.6, 7 On his return, the defendant told Osipov that "the
deed is done." The defendant explained that he had gone to see the victim, that the victim had come at him with a rifle, and that he had shot the victim twice in the chest. The defendant told Osipov that he had then bent down over the victim, told him, "See what that bitch did to you," and fired a bullet in the victim's ear.
Osipov then assisted the defendant in concealing evidence of the crime. Osipov took the clothes and sneakers the defendant had been wearing, doused them with gasoline, and burned them in a back yard cooking pit, and he provided the defendant with cut-off sweatpants and a sweatshirt to wear in their place.8 He also helped the defendant wash his hands with turpentine to remove any residue that might have been left on him from firing the gun. Osipov asked the defendant what he had done with
the firearm, and the defendant told him "[n]ot to worry about it. It was gone."9,10 Osipov then took his brother's truck and drove the defendant to the South Street residence, a distance of only a few hundred yards, where the defendant changed into clothes of his own.11 Following the defendant's directions, Osipov drove him to Worcester and dropped him off by a dirt road near an airport in Worcester. The defendant instructed Osipov to get rid of the tires on the truck the defendant had driven.12 On December 22, Osipov sold the truck to a scrap yard for $35.13
The defendant then walked to the residence of Roger LaPlante, who lived in a secluded home off a dirt road near the Worcester airport, arriving around 11 P.M. The defendant told LaPlante that he and Bosse had had an argument and asked if he could spend the night. The defendant slept on a couch in LaPlante's living room on the nights of December 21 and December 22.
On the evening of December 23, the defendant told a friend at a bar that the police were looking for him, that something bad had happened, and that the friend might not see him for a while. The defendant said that he was going to talk to the police and that it would be better for the friend if he knew nothing about what had happened.
The defendant slept at another friend's home in Rutland on the nights of December 23 and 24. On Christmas morning, that friend drove the defendant to downtown Worcester.14 On the morning of December 29, the defendant voluntarily appeared at the State police barracks in Holden to give a statement to police. The defendant told police that he had just learned of the victim's
death the previous evening when he had called Bosse to ask for a ride home from Worcester; he said that Bosse had told him that "the cops think you did it." He denied killing the victim. He told police that the victim was "a good guy" who "needed to come up with major league cash lately." He said that one morning during the first week of December, the victim had come with his dog to the defendant's home and demanded $3,500 that the defendant owed him. According to the defendant, "he was bullshit; he was talking to the dog." When the defendant told him he did not have the money, the victim told him to ask Bosse to sell his motorcycle and give the defendant the money from the sale. The defendant said he told the victim "to go home and get some sleep." The defendant offered the opinion that the victim was killed because "he owed somebody a lot of money."
In his statement, the defendant told police that on the night of December 21, he had spent part of the evening drinking with Bosse, Osipov, and Martelli at his home, and at some point departed with Osipov. He said that he was not sure if he and Osipov had gone to Osipov's house, but that he knew they had driven to Worcester in Osipov's red pickup truck, describing the older, dilapidated truck that Osipov had disposed of at the scrap yard. He said he had arrived at the home of his friend, Roger, in Worcester around 10 P.M.; he could not recall Roger's last name. He explained that "me and [Bosse] get on each other's nerves now, around Christmas. I just needed to get out of there." The defendant offered to take a polygraph test. At the end of the interview, the defendant told police that he had been wearing (and had not washed) the clothes he had on since the morning of December 21, and he invited the police to take the clothes into custody, which they did.
After taking his statement, police drove the defendant to his South Street residence. On December 31, following additional investigation, they returned to the residence and arrested the defendant for the victim's murder. As they escorted him from the house, the defendant put his finger to his lips and cautioned Bosse, "Remember, silence is golden."
The defense called one witness and presented the jury with two "demonstrations." The witness was the keeper of the records of the Hubbardston highway department, where Neil Potter
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