The sole survivor of the 2010 Mattapan shootings that left four people dead, including a 2-year-old boy, is expected to be questioned under oath next week about his recent disclosure that he can now identify one of the killers, a reversal of his earlier testimony.
On Tuesday, Suffolk Superior Court Judge Charles Hely ordered an evidentiary hearing, which will allow the defense to question the survivor, Marcus Hurd, 34, about the change in his recollection of the brutal crime. The hearing will help a judge determine whether a jury can hear the new testimony when the case goes to trial next month.
Hurd, paralyzed after he was shot in the back of the head, told a jury last March that the two men who shot him and four other people on Woolson Street wore masks or tightly pulled hooded shirts that hid their faces.
But last month, the defense learned that Hurd had told detectives that he now recognized defendant Dwayne Moore as the man who shot him that September night on Woolson Street, a realization that he said came to him when he came face to face with him at the trial.
Moore and Edward Washington, 33, were charged with the killings, which followed a home invasion and robbery. Killed were Simba Martin, 21; his girlfriend, Eyanna Flonory; her 2-year-old son, Amanihotep Smith; and Levaughn Washum-Garrison, Martin’s friend, who slept on a couch that night. A jury acquitted Washington, but deadlocked on Moore, who faces a new trial Oct. 11, on four counts of first-degree murder.
Moore, 35, sat expressionless in court Tuesday, wearing navy slacks and a navy blue sweater vest over a white state prison sweatshirt. He has been held without bail since his arrest in November 2010. Moore’s mother, who brought him the more formal clothes, sat in the front row behind him.
The evidentiary hearing is slated for Sept.25,when Moore’s lawyer, John Amabile, is expected to question Hurd and other witnesses to determine if the new memory was somehow influenced by news images of his client or the knowledge that police had identified Moore as the suspected killer. Before the March trial, Hurd said several times that he could not identify the two shooters, so he never viewed a lineup or looked at police photographs of the defendants.
Amabile may also question other witnesses, including police detectives and a victim witness advocate who spoke with Hurd about the identification.
In court Tuesday, Amabile said that he may also try to question a psychologist who is a memory specialist about the “implausibility of this memory emerging, what appears to be a revelation.”
Amabile said prosecutors have given him two seemingly contradictory versions of how Hurd made the identification.
Last month, prosecutors gave Amabile a one-page police report from Sergeant Detective John Brown, one of the investigators in the case, stating that Hurd told him during two separate interviews in July and August that he could identify Moore as the tall, hooded gunman who marched him up Woolson Street.
“He recognized Moore’s face and bone structure while in the courtroom,” Brown wrote. As he was walking on Woolson Street the night of the shooting, Hurd said he looked around several times, looking for an opportunity to escape.
During these glimpses, Brown wrote, “he said that he could see some of the shooter’s face due to street lighting in the area . . . Marcus said that he did not inform us of this information in the past because much of it came to him during his testimony and after seeing Dwayne Moore in the courtroom.’’
But last week, Amabile said, prosecutors sent him a memorandum that described a somewhat different recollection. The memo stated that in March, right after Hurd finished his testimony, he told a victim witness advocate Moore’s skin tone and build resembled that of the man who shot him, but said nothing of recognizing his face.
“It is not clear when and how this identification came about,” Amabile said. “The facts that are outlined [in the memorandum] are totally inconsistent.’’
He said the way prosecutors provided him with the new information was “very vague and inadequate.”
Assistant Suffolk District Attorney Edmond Zabin had argued in court documents that an evidentiary hearing was unnecessary because Hurd could be questioned in court anytime before he testifies in the new trial without a jury present.
On Tuesday, Zabin did not fight Amabile’s request for the hearing, but he bristled at the defense’s insinuation that police action had somehow influenced Hurd’s memory.
Amabile has said that Hurd’s identification is unreliable and tainted because it was allegedly made when Hurd saw Moore seated at the defense table “in the most highly suggestive context imaginable . . . obviously the person accused of the crime.” Hurd was wheeled into the courtroom before the jury arrived and had several minutes to gaze at the defendants.
But Zabin argued that was because the defense did not want Hurd wheeled into court in front of a jury, an attempt by defense attorneys to “sanitize the proceedings.”
“The opportunity in which Marcus Hurd had to observe the defendant was not something that was orchestrated by the Commonwealth,” Zabin said.
There was no way for prosecutors or police to know that Hurd would claim to recognize Moore in court, he said.
“Certainly, nobody anticipated that there would be a mistrial and [Moore] would be tried again,” Zabin said.
Superior Court Judge Jeffrey Locke, who will preside over Moore’s trial, will also preside over the Sept. 25 hearing.