Commonwealth v. Daye

587 N.E.2d 194, 411 Mass. 719, 1992 Mass. LEXIS 32
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 29, 1992
StatusPublished
Cited by89 cases

This text of 587 N.E.2d 194 (Commonwealth v. Daye) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Daye, 587 N.E.2d 194, 411 Mass. 719, 1992 Mass. LEXIS 32 (Mass. 1992).

Opinion

O’Connor, J.

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 *721 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 us the 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) *722 under Commonwealth v. Bowden, 379 Mass. 472, 485-486 (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. *723 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 *724 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.

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Cite This Page — Counsel Stack

Bluebook (online)
587 N.E.2d 194, 411 Mass. 719, 1992 Mass. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-daye-mass-1992.