Commonwealth v. Moore

• Decision Date: 31 May 2022
• Docket Number: SJC-11582
• Parties: COMMONWEALTH v. Dwayne MOORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

489 Mass. 735

187 N.E.3d 986

COMMONWEALTH

v.Dwayne MOORE.

SJC-11582

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 7, 2022.

Decided May 31, 2022.

Chauncey B. Wood, Boston, for the defendant.

Cailin M. Campbell, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, also present) for the Commonwealth.

Present: Budd, C.J., Cypher, Wendlandt, & Georges, JJ.

WENDLANDT, J.

The defendant, Dwayne Moore, was convicted on indictments charging murder in the first degree for the shooting deaths of Simba Martin, Levaughn Washum-Garrison, Eyanna Flonory, and Flonory's two year old son, Amanihotep Smith. Another victim, Marcus Hurd, was shot but survived; Hurd's injuries left him paralyzed below his shoulders. The events occurred in September 2010 in the Mattapan section of Boston. The defendant was first tried for this so-called "Mattapan Massacre" along with a codefendant in early 2012; the jury acquitted the codefendant but were deadlocked as to the defendant.¹ Following a second jury trial, the defendant was convicted of four counts of murder in the first degree on the theory of felony-murder. The defendant timely appealed.

Following his convictions, the defendant moved for a new trial, arguing that both the prosecutor and defense counsel failed to correct allegedly false testimony, that he had been provided ineffective assistance of counsel, and that both newly discovered and wrongfully withheld exculpatory evidence suggested a key witness committed the shootings with his fellow gang members. The motion judge, who was also the trial judge in the second trial, ordered discovery and held a six-day evidentiary hearing. He denied the defendant's motion.

In this consolidated appeal, the defendant contends that both the prosecutor and his trial counsel failed to use cell phone records to correct allegedly false testimony, that additional details of cell phone records revealed through a new analysis constituted newly discovered evidence warranting a new trial, that a combination of newly discovered and wrongfully withheld exculpatory evidence cast doubt on the Commonwealth's theory of the case and would have been a real factor in the jury's deliberations, that the prosecutor's closing argument was improper and prejudicial, and that the judge erred in declining to strike a juror for cause. The defendant also requests that we exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt. We affirm the defendant's convictions and the order denying his motion for a new trial, and we discern no reason to grant relief under G. L. c. 278, § 33E.

1. Background. a. Facts. We recite the facts in the light most favorable to the Commonwealth, reserving some details for later discussion. Commonwealth v. Combs, 480 Mass. 55, 57, 100 N.E.3d 730 (2018).

i. Premeditated plan. In September 2010, the defendant invited Kimani Washington² to join him in a robbery involving

cocaine. Kimani agreed to participate in the robbery and, upon the defendant's request, said he would get a gun for the defendant. The opportunity to consummate their plans presented on the evening of September 27, 2010. The defendant arrived at Kimani's mother's home on Fowler Street, where Kimani was with his brother, Charles Washington, and his cousin, Edward Washington, in Charles's room.³ The defendant told Kimani that "he wanted to do the lick tonight."⁴ Kimani agreed and told Edward that, because he was going to do the robbery, he "needed that MAC again" -- referring to a firearm he understood that Edward possessed. Edward left the apartment and inferably retrieved the firearm, a MAC-10, which Kimani then gave to the defendant. Kimani armed himself with a Ruger nine millimeter firearm. Edward took Charles's car, a silver BMW, and drove the defendant and Kimani to the site of the planned robbery, Martin's home.

When they arrived at their destination, the defendant and Kimani got out of the car and sat across the street from Martin's house. The defendant "made a couple of phone calls to the house across the street," calling Martin, who was known to be a drug dealer, a total of three times (at 12:29 A.M. , at 12:37 A.M. , and at 12:52 A.M. ).⁵ The defendant explained to Martin that he was "downstairs right now" and that he "wanted some weed."

ii. Hurd's arrival at Martin's home. Meanwhile, Hurd, who had planned to purchase marijuana from Martin, arrived at Martin's house in a silver Ford Edge and parked a few houses down. He saw two individuals on the corner near Martin's home. Hurd testified that he called Martin "right before [he] got to [Martin's] street,"⁶ asking Martin to come outside. He testified that he saw Martin "[c]oming out of his house on his porch, coming down the stairs" and that Martin was waiting on the porch when Hurd arrived.

The defendant and Kimani watched Martin leave his house and walk to Hurd's car; Martin spoke to Hurd outside the car, but "they was talking for so long [Martin] got inside the car on the passenger side." Hurd testified that he and Martin talked "briefly" for "two or three minutes" and completed their transaction.

iii. The robbery. While this drug sale was occurring in Hurd's car, Kimani "[h]ad to try to figure out a way to get in that house" to complete the robbery, so he approached the running vehicle's passenger's side door, where Martin had recently entered. Hurd testified that Kimani said, "Y'all know what time it is," which Hurd understood to mean there was going to be a robbery. Kimani testified that he "pulled [his] gun out" and ordered the two men to "get out the car" and "strip."⁷ Hurd and Martin got out of the car and removed their clothes. The defendant, also armed, joined Kimani.⁸ Then either the defendant or Kimani ordered Hurd and Martin into Martin's house. Kimani testified that the defendant held his gun to the back of Martin's head as they walked into the house.

There were three other occupants inside Martin's home: Washum-Garrison, who was sleeping on the couch downstairs; and Flonory and her son, who were upstairs. Kimani testified that he stayed downstairs with Hurd, while the defendant took Martin upstairs. Kimani ordered Hurd to face the wall, and awakened Washum-Garrison to pat him down; Kimani took drugs and money from Washum-Garrison. Kimani felt that the defendant was "taking too long upstairs," so he went up to investigate. Kimani found the defendant and Martin going through pockets of coats in a closet, and he saw the other two victims, Flonory and her son, in a "back room." The defendant told Kimani to go back downstairs, which he did. Flonory, carrying her son, also went downstairs and lay down on the floor. When Kimani returned downstairs, Edward was inside the apartment, pointing his gun at Washum-Garrison, who was on the couch. Shortly after, the defendant and Martin came downstairs.

Kimani, the defendant, and Edward took a safe, a flatscreen television,⁹ a bag, and some drugs out of the house. They loaded those items into Hurd's silver Ford Edge, which was still running. Before leaving Martin's home, Kimani said, "[M]y name is Point, I'm from the Point. If they wanted to find me or get some get-back on the person that got them, they know where to find me." Kimani left the house; he noticed Hurd's and Martin's clothes on the ground, "[p]icked them up and threw them" into Hurd's Ford Edge, and then drove away in that vehicle.

iv. The shootings. Kimani assumed that the defendant and Edward had already fled. Instead, Edward ordered the five victims out of Martin's house. When he left the house, Hurd noticed that his car was missing. The defendant and Edward ordered the victims to turn right and to turn right again onto Woolson Street. The defendant held his gun to Hurd's back while they walked and told him to "stop turning [his] head around"; Hurd had been looking to see "if there was a chance for [him] to escape." The defendant ordered Hurd to "walk ahead and get in the bushes," where he shot Hurd in the back of the head.¹⁰ Hurd testified that he heard multiple gunshots after he was shot but could not see anything.¹¹

At 1:11 A.M. , 1:12 A.M. , and 1:13 A.M. , a Shotspotter sensor around the area of Woolson Street recorded a total of twelve gunshots. When Boston police officers arrived, they found Hurd alive, lying face down in the bushes. Martin was found already deceased, lying face down in the street at the intersection of Woolson and Wildwood Streets. He had six gunshot wounds, one in his hand, three in his torso, and two in his head. Washum-Garrison was found deceased in the bushes by the steps of a house on Woolson Street; he had been shot once in his chest. Flonory was also found deceased, on the sidewalk on Woolson Street. Flonory had three gunshot wounds (one in her head, one in her right hand, and one in her left hand). Her son had two gunshot wounds, one in his torso and one in his right arm; her son was still alive when police arrived, but he died at the hospital shortly afterwards.¹²

v. The splitting of the proceeds. The defendant and Edward returned to Kimani's mother's home, where they met Kimani; they planned to "divide the goods that [they] got from the robbery." Kimani asked the defendant, "What took so long?" The defendant explained, "We had to go back ... [t]o kill everybody." The defendant, Kimani, and Edward then brought in the safe, which they were unable to open; a bag filled with guns and drugs; and $1,800 in cash, which they split three ways.¹³ Kimani then left his mother's apartment with the defendant, again driving the silver Ford Edge, and dropped the defendant off near the Forest Hills neighborhood in the Jamaica Plain section of Boston before driving to the Grove Hall neighborhood in the Roxbury section of Boston.

vi. The investigation. Meanwhile, a police officer who responded to the scene of the shootings questioned Hurd as they removed him from the bushes, and Hurd told him that the shooters had stolen his car. Officers...