Boston police detectives said they were shocked last July when the sole survivor of a 2010 Mattapan shooting told them he recognized the man who shot him and killed four others, a man he had repeatedly said he could not identify.
“The statement rocked me,” Sergeant Detective John Brown said during a hearing Tuesday.
But a victim witness advocate who works closely with Suffolk County prosecutors had heard a similar statement from Marcus Hurd nearly five months earlier. On March 7, Hurd testified in the murder trial of Dwayne Moore and Edward Washington that he could not see the face of the man who shot him in the head, rendering him a quadriplegic.
Later that day, however, he told the advocate, Kara Hayes, that while he was on the stand, he realized that Moore generally resembled the shooter.
“His coloring, kind of his shape and size, bone structure dovetailed with his memory,” Hayes said during Tuesday’s hearing, which was requested by Moore’s defense attorney and will help a Suffolk Superior Court judge determine whether to allow the new testimony in Moore’s upcoming trial.
Moore, 35, and 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 could not reach a verdict on Moore, who faces a new trial Oct. 11 on four counts of first-degree murder.
Hayes, who is not bound by confidentiality, said she could not remember telling anyone about what Hurd said that day.
Victim-witness advocates have a wide array of duties working with victims, their families, and witnesses, helping them navigate the often impersonal legal system and trying to minimize the emotional trauma of a trial. Hurd made his revelation to Hayes when they were together in a sixth-floor room reserved for families, victims, and witnesses.
“I thought I was speaking to someone who was quite literally debriefing’’ after a difficult day of testimony, Hayes said.
Sometime later, around late spring or early summer, Hayes was visiting Hurd when he told her again that his memory was getting better.
“That is a stop sign for me,” Hayes recalled Tuesday. “I said, ‘You need to have that conversation with the detectives.’ . . . I’m no finder of fact.”
Defense attorney John Amabile, who represents Moore, asked Hayes why she did not act more aggressively to alert prosecutors or police about Hurd’s revelations, especially after the first conversation.
“My mistake,” Hayes said. “I didn’t see it to have the same weight as what he said in the second conversation.’’
Judge Jeffrey Locke asked Hayes if the first conversation took on more significance after the mistrial was declared in late March.
“Yes,” Hayes replied.
But, according to Tuesday’s testimony, it appears it was not until September that she revealed the March conversation to Suffolk Assistant District Attorney Edmond Zabin, who asked her to write a memo detailing her best memory of the discussion. In the Sept. 12 memo, she wrote that Hurd told her “Dwayne Moore’s size, build, and complexion seemed consistent with his memory of the shooter.” The memo did not mention bone structure.
Detectives said Tuesday that they knew nothing of Hurd’s new memories until July 26, when they went to check on him at a medical facility where he was being treated.
Detective Paul Donlon said that Hurd was outside in a smoker’s area near the parking lot when he told him: “ ‘I know you guys don’t like it when a witness changes their testimony. But I remember the guy in the courtroom.’ ’’
“What?” Donlon said he asked Hurd.
“He said, ‘I recognized the guy who shot me in court,’ ’’ Donlon testified. Stunned and concerned about the crowd of people nearby, the detectives did not press Hurd and left a few moments later.
Brown and Detective Frank McLaughlin said they returned Aug. 8 to ask Hurd precisely who he was referring to and he told them Dwayne Moore.
Neither detective took notes during the interview, nor did they record it.
When Amabile asked why, Brown said it would have been inappropriate to question Hurd outside with a tape recorder. Neither detective suggested going up to Hurd’s room for a more private conversation. Hurd “likes to stay outside for the day,” Brown explained.
Hurd, who is under state protection, is expected to testify Friday via video conference.