No. 95-0395Commonwealth of Massachusetts Superior Court CRIMINAL ACTION MIDDLESEX, SS.
September 24, 2002
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR NEW TRIAL
BRASSARD, JUSTICE.
A. INTRODUCTION
On May 30, 1997, a jury found Kevin Dyke (“Dyke”) guilty of second-degree murder in connection with the July 5, 1994 homicide of Mark Mariani (“Mariani”) and the attempted armed robbery of Ware Jewelers. Dyke now moves for a new trial pursuant to Mass.R.Crim.P. 30(b) on two separate grounds. First, Dyke argues that his due process rights were violated when the Commonwealth presented two diametrically opposed sets of facts for the same crime through immunized witness in order to convict two separate defendants in two separate trials. Specifically, Dyke contends that the Commonwealth presented evidence at his trial that directly conflicted with the evidence the Commonwealth previously presented to secure a conviction against co-defendant Ralph Sullivan (“Sullivan”). Second, Dyke argues that he was denied effective assistance of counsel due to counsel’s failure to present evidence which directly impacted the credibility of Susan Murphy (“Murphy”), a key eyewitness in the Commonwealth’s case. For the reasons discussed below, the defendant’s motion is DENIED.
B. BACKGROUND
In the afternoon of July 5, 1994, Mariani was shot and killed while working at his business, Ware Jewelers, in Waltham, Massachusetts. Dyke and Sullivan were both indicted and tried for the murder of Mariani and the attempted robbery of Ware Jewelers. In separate trials, both men were found guilty of murder and attempted armed robbery. In order to address the issues presented in Dyke’s motion, this court reviewed the testimony given at the Sullivan trial, Dyke’s second trial, the grand jury and at the evidentiary hearing conducted as to this motion.
1. Sullivan trial
The case against Sullivan was prosecuted by Assistant District Attorney David E. Meier (“Attorney Meier”). Attorney Robert A. George (“Attorney George”) defended Sullivan. The case was tried before the Honorable Robert Barton.
In the Commonwealth’s opening statement, Attorney Meier told the jury that the evidence would show that on Tuesday, July 5, 1994, Sullivan, Anthony Miller (“Miller”) and Dyke used two stolen vehicles to travel to Ware Jewelers. He stated that the evidence would show that Sullivan and Miller went inside the jewelry store and murdered Mariani. He also told the jury that the evidence would show that Sullivan and Miller had a woman in the car with them.
In the defense’s opening statement, Attorney George suggested that it was not Sullivan but rather a man by the name of Michael Sullo (“Sullo”) who murdered Mariani. He asked the jury to discredit the testimony of Murphy. Attorney George also told the jury that the witnesses gave inconsistent statements as to the color of the alleged getaway car. Attorney George also pointed out to the jury that there existed no evidence of a gun, fingerprints or any identification tying Sullivan to the crime.
Over the course of the trial, the prosecution presented several witnesses to testify as to the events of July 5, 1994. The first witness presented was Charles LeSage (“LeSage”), a friend of Sullivan’s. LeSage had been living in Somerville with Mary and Bill Mpontsikaris at 9 Grant Street. LeSage testified that he saw Sullivan and Miller on the morning of July 5, 1994. He told the jury that he was “pretty positive” that Miller came to 9 Grant Street to purchase drugs between 8-8:30 a.m. that day. LeSage also stated that when he saw Miller and Sullivan that morning, they were in a blue car. LeSage recalled that he also saw Miller and Sullivan later that day at the Mpontsikaris residence between 9:00 p.m. and 10:00 p.m.
Mary Mpontsikaris (“Mpontsikaris”) testified that she is a friend of Sullivan’s. She is a resident of 9 Grant Street in Somerville, Massachusetts. Mpontsikaris testified that she saw Miller and Sullivan together the morning of July 5, 1994 at her home between the hours of 8:00 a.m. and 8:30 a.m. Contrary to LeSage’s testimony, she stated she saw Miller and Sullivan in a white car. She further testified that the men stayed at her home for a few minutes and either Miller or Sullivan used her phone. After being presented with her prior statement, she further testified that Sullivan had used the phone and stated to Miller, “it’s all set, we got a ride.” She then stated that Miller and Sullivan left her home. The next time that she recalled seeing Miller and Sullivan was at her home in the early evening that same day. She told the jury that the television was on and Sullivan commented on a story regarding a shooting in Waltham. Mpontsikaris stated that Sullivan was curious about the news story and wanted to know what had happened. Specifically, she testified that Sullivan had asked her if, “they had a description of things, did they have any idea of what happened, and did they have a description of the car?”
During cross-examination, Mpontsikaris told the jury that the news came on between the hours of 5:00 p.m. and 7:00 p.m. She stated that the only other persons at her house at that time besides Miller and Sullivan were her husband and possibly LeSage.
The prosecution also presented a representative from Nynex, Mr. Tibbetts, to explain certain cellular phone records. The representative testified to a telephone call to Derry, New Hampshire made from Sullivan’s cellular phone at 10:22 a.m. on July 5, 1994. This call bounced off a cellular tower in Andover, Massachusetts. There were also five other calls between 10:37 and 11:00 a.m. which bounced off a Derry, New Hampshire tower. Next, there was an 11:23 a.m. call from Sullivan’s phone that bounced off an Andover, Massachusetts tower and another call which bounced off a tower in Reading, Massachusetts. Mr. Tibbetts testified that there was no activity on Sullivan’s cellular phone between 12:00 noon and 2:40 p.m. on July 5, 1994. Mr. Tibbetts told the jury that Sullivan’s phone records indicated that a call was placed at 2:40 p.m. from Sullivan’s phone which bounced off a tower in Andover, Massachusetts. He further told the jury that a call made from the Somerville area would have bounced off towers either in Cambridge or Boston.
At the conclusion of the prosecution’s case, Attorney George moved for a required finding. In connection with that motion, the linchpin of his argument related to Murphy’s three-time appearance before the grand jury.[1] Attorney George argued that the prosecution was unable to indict Sullivan until Murphy testified three times. Attorney George further stated that the indictment of Sullivan did not occur until after Murphy was granted immunity. He suggested to the court that Murphy’s testimony was influenced by the $7,500 she was paid for relocation and re-establishment of her life. Attorney George also stated that Murphy did not even place herself at Ware Jewelers until she was before the third grand jury. He further argued that she placed herself in three different places each time she testified. Attorney George summarized Murphy’s grand jury testimony as follows: after the murder, they drove from Waltham through Watertown and Brighton to Somerville. Once in Somerville, she was dropped off and she purchased a pack of cigarettes. Murphy then went to 9 Grant Street where she spent the remainder of her day. The court denied the defendant’s motion for a required finding.
The defense presented Dyke’s mother, Patricia Melling (“Melling”) to testify. Melling told the jury that she recalled seeing Miller at her home in Derry, New Hampshire around 12:30 p.m. on July 5, 1994. She stated that Miller and Sullivan had returned to her home to retrieve a wallet that Miller had left there the day before while attending a picnic at her residence. She testified that on July 5, Miller and Sullivan went to the pool, and the last time she recalled seeing them was approximately 1:25 p.m. She further testified that she did not see Dyke or his wife on July 5 because they went to Hampton Beach.
During the defense’s closing argument, Attorney George suggested it was Sullo, not Sullivan, who murdered Mariani. He argued that none of the evidence incriminated his client. He further pointed to the inconsistent testimony from key witnesses, such as Mpontsikaris and LeSage. Attorney George summarized the prosecution’s case regarding the cellular phone records as follows:
At some point on July 5, 1994, from Londonderry or Derry, New Hampshire, the phone records indicate that a person using Mr. Sullivan’s cell phone came down 93, got off somewhere in the area of Burlington, Massachusetts on 93, got off the highway, went to the Market Basket, stole a car, and got back on the highway, came down into Waltham, robbed Ware, went right to the Mpontsikaris house, watched the news. That’s their case.
Attorney George stated that the prosecution suggested that after the incident, at approximately 2:00 p.m. on July 5, 1994, Sullivan and Miller somehow ended up in Somerville. He further argued that Sullivan and Miller were merely returning from Derry, New Hampshire when the murder occurred. He stated that Melling had no reason to lie and give an alibi to a man she just met. He said that the 2:40 p.m. telephone call that bounced of the Andover tower supports the theory that Sullivan and Miller were traveling south on Route 93 after returning from the Dyke residence in Derry, New Hampshire.
Attorney George told the jury that the Commonwealth’s version of the events of July 5, 1994 cannot be what actually happened that day. He asked the jury to consider how could Sullivan’s cellular phone call records indicate a call coming in from Andover at 2:40 p.m. if Sullivan was on his way to Somerville. Attorney George said that the phone call was actually consistent with Melling’s testimony that Sullivan and Miller were on their way back from Londonderry heading to Boston. He emphasized that the 2:40 p.m. telephone call does not support the prosecution’s case. Furthermore, he told the jury that this telephone call proves that Sullivan was not at Ware Jewelers, or, at the very least, that it should give the jury reasonable doubt.
During the prosecution’s closing argument, Attorney Meier attempted to discredit Melling’s testimony by pointing out inconsistencies. He stated to the jury,
What did Sullivan do? He picked up the telephone and what did he say to Miller, `It’s all set, we’ve got a ride.’ Did he say `It’s all set. I’ve just spoke to Kevin’s mom. Let’s head up there and pick up your wallet, go for a swim.’ Who is trying to put something over on who?
Attorney Meier reiterated the argument that Miller and Sullivan drove to Derry to pick up Dyke and he pointed to the telephone call as evidence for that theory. He told the jury, “I suggest to you that they [Miller and Sullivan] turned around once they arrived in Derry because they were all set, they had a ride all right. Sullivan, Miller, and a third man left Derry and just as the cell phone tells you, they began to drive south on 93.” Meier further explained his theory by arguing that three men stole a car in Burlington, Massachusetts and then proceeded to Waltham in two separate cars, committed the murder and then left in the blue car. He stated, in part,
At some point at twenty minutes to 3, the car was heading back up Route 93, towards Derry, NH and Sullivan was once again using his cell phone, a phone used up to five minutes of 12 and then used at twenty minutes to 3, using that same cellular phone as those individuals heading north on Route 93 back towards Derry, New Hampshire. Is there any evidence in this case, members of the jury, are there any facts you have heard to suggest that those three men that Richard Ware saw leaving in that blue car went directly to Somerville. Who’s putting something over on who?
Attorney Meier then points to the testimony of Mpontsikaris. He explains his theory that Sullivan and Miller returned to Somerville only after dropping Dyke off in New Hampshire. He told the jury,
Mary Mpontsikaris said that she was watching the news at 5 or 6 when Sullivan and Miller arrived. She didn’t say that she saw them at 2:15, 2:30, quarter to 3, 3:00, or 3:15 PM. Those are the facts, that’s the evidence. Sullivan and Miller and that third gentleman were driving north on 93 and Sullivan was using his cell phone at twenty minutes to 3 and that call was bouncing off the Andover tower. They drive right back to Derry, NH, I suggest to you, and then the two of them returned, ultimately walking into 9 Grant Street when the news was on.
After the closings, Attorney George moved to dismiss the case. He based his argument on the grand jury testimony of Murphy. He stated that the prosecution knew that Murphy was lying but that they used her testimony nevertheless in order to secure an indictment against Sullivan. The motion was denied and on January 27, 1997, the jury returned guilty verdicts against Sullivan on both the attempted robbery and murder charges.
2. Dyke trial II
Dyke was initially tried before a jury between May 19, 1997 and May 30, 1997 (“Dyke I”). After two days of deliberation, the jury reported that they were deadlocked, and a mistrial was declared. Dyke was then tried before a second jury between October 14, 1997 and October 29, 1997 (“Dyke II”). The second jury found him guilty of second-degree murder and attempted armed robbery. Assistant District Attorneys David Yannetti (“Attorney Yannetti”) and Marc Eichler (“Attorney Eichler”) prosecuted both cases and Attorney Robert L. Sheketoff (Attorney Sheketoff”) and Attorney Rosemary Curran Scapicchio (“Attorney Scapicchio”) defended Dyke in both cases.
In Attorney Yannetti’s opening statement in Dyke II, the Commonwealth asserted that Dyke was a joint venturer with Sullivan and Miller in the murder of Mariani and attempted robbery of Ware Jewelers. Attorney Yannetti stated that on June 30, 1994, a blue Buick Regal was stolen from Kenmore Square in Boston, Massachusetts. Attorney Yannetti told the jury that the evidence would show that on July 4, 1994, Sullivan, Miller and Murphy drove to Dyke’s house in New Hampshire for a cookout. Murphy would testify that while at this cookout, Sullivan told her he had to discuss business with Dyke and Miller and later stated to Dyke that Sullivan would see him in a day or two.
Attorney Yannetti told the jury that on July 5, 1994, Sullivan and Miller woke up early and picked up Murphy. They then proceeded to home of Bill and Mary Mpontsikaris, which was located at 9 Grant Street in Somerville, Massachusetts to purchase some drugs. From the Mpontsikaris residence, Miller, Sullivan and Murphy drove up Route 93 in the stolen blue Buick to Dyke’s residence in Londonderry, New Hampshire. Attorney Yannetti stated they picked up Dyke, headed back down Route 93, stole a brown Chevy blazer and proceeded to Ware Jewelers in Waltham. While Murphy lay unconscious in the back seat of the get away vehicle, Miller and Sullivan attempted to rob the jewelry store and shot Mariani while Dyke stood as their lookout man.
In the defendant’s opening statement, Attorney Sheketoff suggested to the jury that Dyke was absent from the entire scene on July 5, 1994. He stressed the lack of credibility of the prosecution’s witnesses, including Murphy, Mpontsikaris, LeSage and Stacy Dyke. Attorney Sheketoff stated to the jury that the evidence would show these witnesses lied either to the investigators, the grand jury or at the Sullivan trial, with regards to the events of July 5, 1994. He also told the jury that Murphy, Mpontsikaris, and Stacy Dyke had been granted immunity in exchange for their testimony. With respect to Murphy, Attorney Sheketoff stated that she committed perjury to the first grand jury when she told them she was not with Sullivan during the day of July 5. He then told the jury that after being afforded complete immunity, Murphy testified to the next grand jury that she had in fact been at the scene of the crime, but was sound asleep. He then told the jury that Murphy said that after the murder, all four of them returned to 9 Grant Street in Somerville, however, only Murphy, Miller and Sullivan went inside 9 Grant Street and Dyke remained in the car. Attorney Sheketoff pointed out that because the phone records showed this to be untrue, Murphy now testifies that she was dropped off in Somerville and Miller, Sullivan and Dyke went somewhere else. With respect to Mpontsikaris, Attorney Sheketoff stated that she also lied before both the grand jury and at the Sullivan trial, and, because Mpontsikaris perjured herself, she was afforded immunity to change her story and testify at Dyke II.
The following represents the testimony from Dyke II. Richard Ware (“Ware”), the previous owner of Ware Jewelry, testified that he met Mariani in 1993 and the two gentlemen had negotiated a buyout deal whereby Mariani would purchase the jewelry store from Ware. The two gentlemen worked side by side through the negotiation of the buyout and Ware continued working at the store after the buyout was completed.
Ware told the jury that on July 5, 1994, two men entered the store around 1:45 p.m. He stated that there was a struggle between Mariani and one of the men in the back office while the other man remained in the front of the store. He testified as to the timing of the gunshots and Mariani collapsing to the floor. He further testified as to the men fleeing the store.
Waltham Police Officer John Brooks was also called to testify on behalf of the Commonwealth. Officer Brooks stated he was working his assignment with the patrol division on July 5, 1994 and responded to a radio dispatch to Ware Jewelers. Upon entering Ware Jewelers, Officer Brooks saw Detective Brian Lambert (“Lambert”) of the Waltham Police Department and noticed a third party (Mariani) lying on the floor.
Murphy was called to testify. Murphy had given testimony to the grand jury on three prior occasions with respect to the Mariani homicide. She initially told the grand jury that Sullivan, her then boyfriend, and Miller picked her up the morning of July 5, 1994 and dropped her off at 9 Grant Street where she spent the day along with the Mpontsikarises and LeSage. Murphy admitted that this statement was a lie and that she so testified out of fear for her family.
Her testimony, which will be discussed in more detail below, was as follows. She stated that during the time period of this incident, she was a drug user and had a large heroin habit. She also testified as to the drug habits of Miller, Sullivan, LeSage and the Mpontsikarises. She admitted that she knew in June of 1994 that neither Miller nor Sullivan was engaged in legitimate business. She testified that on July 4, 1994, she went to New Hampshire with Sullivan and Miller to the home of Dyke for a cookout. While at Dyke’s home, Sullivan told her to just hang around the pool because he needed to go discuss business. She then observed Miller, Dyke and Sullivan engaged in conversation. She further testified that upon departure from the cookout, she heard Miller say to Dyke, “we will see you in a day or two.”
On the morning of July 5, 1994, Murphy told the jury that Sullivan and Miller picked her up in a white Volvo. She stated that Sullivan and Miller drove her to 9 Grant Street and dropped her off so that she could purchase some heroin. She stated that Miller and Sullivan were gone for approximately ten to fifteen minutes. She testified that when Miller and Sullivan returned to pick her up, they were driving a different car, a blue Buick.
Murphy testified that when Miller and Sullivan returned, they picked her up and the three of them left 9 Grant Street and drove to Dyke’s home in New Hampshire via Route 93 North. She testified that they picked Dyke up at his home and headed back down Route 93 towards Boston. As a result of the drugs she had taken that day, (heroin and valium), Murphy admitted to passing out intermittently in the back seat of the blue Buick. The last thing she recalls before the incident was driving near the intersection of Route 128 and 93. Murphy’s next recollection was waking up to Miller, Dyke and Sullivan getting into the car and hearing Sullivan yell, “Let’s get the fuck out of here.” Murphy then testified that the four of them left and drove back to Somerville. She told the jury that Miller, Sullivan and Dyke dropped her off at the corner of Grant Street to buy some cigarettes in a convenience store. After buying the cigarettes, she returned to the Mpontsikaris residence alone.
On cross-examination, defense counsel attacked Murphy’s credibility. Defense counsel addressed Murphy’s history of drug abuse and the fact that she received money from the Commonwealth for her cooperation in this case. Defense counsel also pointed to the inconsistencies in her testimony at her first and third appearances before the grand jury testimony, as well as the inconsistencies between her third grand jury appearance and her Dyke II trial testimony. Murphy told the jury that she had not been called to testify at the Sullivan trial.
Stacy Dyke, who was married to Dyke in July of 1994, also gave testimony at Dyke II. She told the jury that she recalled Sullivan, Murphy and Miller coming to her house on July 4, 1994 for the purpose of a cookout. She also testified that on July 5, 1994, she recalled seeing Sullivan outside her house around 11:00 a.m. at which point Dyke left with Sullivan. She further stated that the next time she saw her husband was approximately 3:00 p.m. or 4:00 p.m. that same day. Dyke was with Sullivan and Miller and all three of them came to her house.
Stacey Dyke admitted to lying to the homicide investigators when she was first questioned regarding the whereabouts of Dyke on July 5, 1994. She initially lied and told the investigator that Dyke spent the day with her at Hampton Beach, New Hampshire. On cross-examination, defense counsel stressed the fact that Stacy Dyke was also given compensation for her cooperation in this case.
Mpontsikaris was also called to testify. Her testimony will be further discussed in more detail below. She stated that she was a heroin user at the time of the murder and saw Sullivan on a daily basis. She testified that on July 5, 1995, she saw Sullivan and Miller between 7:30 a.m. and 8:00 a.m. when they came to her house to purchase drugs. She told the jury that while they were at her home that morning, Sullivan made a phone call in the other room. After placing this call, she heard Miller or Sullivan say, “it is all set, we’ve got a ride,” and “we are going to New Hampshire to Dyke’s.” She also testified that Sullivan and Miller returned to her house that same day between 5:00 p.m. and 6:00 p.m. while the evening news was on. She recalls the news reported a story of a murder at Ware Jewelers. She stated that Sullivan appeared interested in this story.
On cross-examination, defense counsel pointed to the fact that Mpontsikaris omitted the statement, “we’ve got a ride” and “we’re going to Dyke’s” both when she testified before the grand jury and at Sullivan’s trial. She admitted that she was given immunity by the Commonwealth for her perjury in exchange for her testimony in Dyke II. She further told the jury that she did not actually see Sullivan make the phone call the morning in question. She admitted she only assumed he made a phone call using her phone because Sullivan left the room and she overheard mumbling. She further admitted to telling Trooper Forster on July 21, 1994 that Sullivan used her phone, however, she acknowledged that her telephone bill did not evidence a long distance call to New Hampshire.
LeSage was also called to testify in Dyke II. He told the jury that he, along with Sullivan and Miller, stole a blue Buick from the Fenway area on June 30, 1994. He also stated that the three of them had significant heroin addictions and habits in 1994. He stated he spent the entire day of July 5 at the Mpontsikaris residence. He testified that he recalled telling the grand jury that he saw Miller and Sullivan at 9 Grant Street around 9 or 10 p.m. on July 5. However, at Dyke II, he changed his testimony and told the jury he actually recalled seeing Miller and Sullivan at 9 Grant Street around 6:00 or 6:30 p.m. When asked why he recalled a different time period, he responded he just remembers it better now.
The Commonwealth called additional witnesses including a receptionist, Heather Pakenham (“Pakenham”), who worked for Olan Mills Portrait Studios (“Olan Mills”) which shared a wall with Ware Jewelers. Pakenham testified that on July 5, 1994, she was working at Olan Mills and heard banging against the wall from Ware Jewelers and three or four popping noises. After hearing the noise, she recalled looking out the window and seeing a man coming from the left side of Olan Mills whom she described as looking agitated, out of place, and not knowing whether he was coming or going. Mary Beth Augustine was also called to testify. She told the jury that she was at Olan Mills on July 5, 1994 at approximately 1:30 p.m. having pictures for business purposes. She stated that around 1:45 p.m., as she was pulling out of her parking spot, she was cut off by a large blue car driven by an older woman. She then stated that she was leaving the shopping plaza from the right exit when a brown Chevy Blazer cut her off.
The Commonwealth also called Ronald Cerra (“Cerra”), an investigator for BankBoston. Cerra testified regarding BankBoston’s ATM video surveillance, and particularly the machine located in the Colonial Shopping Plaza where Ware’s Jewelers was located. Cerra reviewed the tapes from July 5, 1994 at the request of the Waltham Police Department. Cerra was asked to review the tapes for any footage of a Chevy Blazer and/or Buick Regal. Cerra testified that the tapes did have footage of a Chevy Blazer but not a Buick Regal.
At different sidebars, Attorney Sheketoff broached the issue of changing testimony. Attorney Sheketoff brought to the attention of the court the changes in the testimony of both Mpontsikaris and Murphy. Further, he stated to the court that the prosecution was using a different theory in Dyke II than in the Sullivan trial. He argued that the jury should have knowledge of the first Dyke trial. He argued that the opening and closing statements from the Sullivan trial should be admitted. He stated that,
[T]here is a concept of admission by opening statement, and closing argument, and the position taken by the government, the government can’t talk out of both sides of their mouths. What I said to Judge Grasso the last time was that in closing in the Ralph Sullivan trial, the Commonwealth ridiculed, ridiculed the defense position that the car went back to Somerville after the shooting in Waltham. So the government for Ralph Sullivan stood in front of a jury and said that is ludicrous that the car went back to Somerville . . . When it fit their purpose, [they] stood up and said, it is ludicrous that the car went back to Somerville after the shooting. They now want to say, in front of this jury, that it is ludicrous that the car didn’t go back to Somerville after the shooting. I asked Judge Grasso to be allowed to put in front of the jury what the government has said in closing argument at the last trial.
Attorney Sheketoff further stated that the Commonwealth may be free to change its position, however, the jury is entitled to know that it changed its theory.
Prior to Murphy testifying, Attorney Sheketoff told the court that it was hard to say where the truth lies with Murphy. He told the court that in Murphy’s first grand jury testimony, she lied and said she gave Sullivan money to buy drugs the morning of July 5, 1994 and spent the remainder of the day at Sullivan’s mother’s house. Then she changed her story and admitted she was with Sullivan the entire day.
During the defendant’s closing argument, Attorney Sheketoff told the jury that Murphy, Mpontsikaris and Stacy Dyke were liars. He told the jury that coming into the courtroom and telling the truth did not mean anything to these witnesses. Attorney Sheketoff addressed Murphy and her testimony. He told the jury that she lied in front of the grand jury and the Commonwealth gave her immunity for lying. Attorney Sheketoff highlighted the fact that Murphy told the grand jury that after the attempted robbery, they went to the Mpontsikaris house. Murphy told the grand jury that Miller, Sullivan and herself went into the Mpontsikaris residence for four hours while Dyke remained outside in the car. Then, she later admitted that this was a lie and changed her story as to what happened after the incident.
Attorney Sheketoff also directed the jury to note the inconsistencies in Mpontsikaris’ testimony. He again told the jury how Mpontsikaris never mentioned Dyke or New Hampshire in the beginning of the investigation. She admitted to lying the first time because her husband told her to. Attorney Sheketoff suggested that her husband telling her to lie to protect Dyke was incredible as her husband stated he did not know Dyke, in fact, never knew him. Attorney Sheketoff also suggested that Mpontsikaris only changed her story regarding which phone was used when Sullivan called New Hampshire because her phone records did not evidence that such a call was made. The basic theme of the closing was that the witnesses presented by the prosecution were liars who were allowed to change their stories several different times.
In the prosecution’s closing argument, Attorney Yannetti argued that the evidence supported his theory of the case. He stated that the telephone call records support the theory of Sullivan and Miller going to New Hampshire to pick up Dyke. When discussing what happened immediately following the murder and attempted robbery, Attorney Yannetti told the jury that Miller, Sullivan and Dyke would not want to head back into town after what happened. He argued that Murphy’s testimony made sense that way. He suggested that it made sense that they dropped off Murphy before going back to New Hampshire to drop off Dyke. Attorney Yannetti further stated that the evidence showed they went back to New Hampshire because there was an additional call at 2:40 p.m. that shows they were heading back to New Hampshire. Attorney Yannetti suggested that the jury should look at the telephone call records because those records tell the story about what happened that day.
3. Mary Mpontsikaris
The following summarizes the testimony of Mpontsikaris in more detail.
Grand Jury Testimony
On September 14, 1994, Mpontsikaris gave the following testimony before the grand jury. She stated that on the morning of July 5, 1994, Miller and Sullivan arrived at her house in a blue vehicle around 8:30 a.m. She testified that Miller and Sullivan stayed at her house for approximately twenty minutes. She had some conversation with them that morning. She did not have a clear recollection of the conversation, however she did recall that Miller and Sullivan either said they had just been to New Hampshire or they were going to New Hampshire. Miller and Sullivan left her home that day and returned around 5:30 p.m. She testified that there was mention of a murder in a Waltham jewelry store on the news that evening and Sullivan asked a lot of questions about the news broadcast.
b. Sullivan Testimony
Mpontsikaris also gave testimony at Sullivan’s trial. She told the jury that Sullivan and Miller came to her home the morning of July 5, 1994 between 8:00 and 8:30 a.m. She recalled that when they arrived, they were driving a white car. She stated that Miller and Sullivan stayed at her house for a few minutes. She recalled that Sullivan had used her phone and when he was done she heard him remark, “it’s all set, we got a ride.” She then recalled Sullivan and Miller leaving her house and she did not see them again until they returned to her home in the early evening. She testified that when Miller and Sullivan returned, the news was on some time between 5:00 — 7:00 p.m. She told the jury that Sullivan asked a lot of questions pertaining to a news report of a Waltham shooting. The only other person she recalls being at her house at the time was her husband and possibly LeSage.
c. Dyke II Testimony
Mpontsikaris also gave testimony during the Dyke II trial. She testified that she saw Sullivan and Miller the morning of July 5, 1994 around 7:30-8 a.m. She stated that Sullivan and Miller came to her house looking to purchase drugs. She recalled having a conversation with Sullivan and Miller. She stated while she was in the parlor with her husband, LeSage, Miller and Sullivan, either Sullivan or Miller left the room and went into the kitchen. When he came back from the kitchen, he said, “we are all set, we’ve got a ride.” The other person, possibly Miller, said we are going to New Hampshire to Dyke’s. However, Mpontsikaris admitted she did not see either Sullivan or Miller use a phone, but rather assumed that he either used her phone or brought his own. She did not hear the phone call itself, but did hear the mumbling of voices, and assumed he was on the phone.
She admitted that she did not report, “we have a ride, we are going to Dyke’s” in her July 21, 1994 statement to investigators. The first time she made the prosecutors aware of this statement was in May of 1997. On cross examination she acknowledged she had an agreement with the Commonwealth that she would not be indicted for perjury at the Sullivan trial if she came forward with the information of this statement at the Dyke trial. She also acknowledged that she left the “Dyke/New Hampshire” statement out of her grand jury testimony because, at the time, only Sullivan and Miller had been implicated for the crime and her husband told her not to say anything about this statement.
Mpontsikaris stated that her husband did not have any heroin to sell on July 5, therefore, Miller and Sullivan left her home that day without heroin. She further stated that if Murphy went to her house to purchase drugs, she would have also left without heroin.
Mpontsikaris further testified that she recalls Miller and Sullivan returning to her house around 5 or 6 p.m. because the news was on and she recalls Sullivan asking questions about the broadcast of the jewelry store murder and robbery.
4. Susan Murphy
a. Grand Jury Testimony
Murphy appeared before the grand jury three times with respect to this matter. The first date was September 14, 1994. Murphy stated that on July 5, 1994, sometime between the hours of 8 and 9 a.m., Miller and Sullivan stopped by to see her and to pick up money to buy heroin. She stated that Sullivan told her he was going to New Hampshire to take care of some things and he would be home soon. Murphy testified that at about 10:30 a.m. on July 5, 1994, she telephoned Sullivan on his cellular phone; however, the call had a lot of static and Sullivan hung up on her. She called him again at 10:50 a.m., and this time had a conversation with him which lasted a few minutes. During this conversation, Murphy stated Sullivan told her he would call her back when he returned from New Hampshire.
Murphy stated she basically spent the entire day at the Mpontsikaris residence. She recalled LeSage being there all day as well. Murphy stated that she saw Sullivan and Murphy later that evening when the two men arrived at the Mpontsikaris residence.
On February 24, 1995, Murphy was called upon a second time to testify before the grand jury. However, in response to questions pertaining to the incident, Murphy invoked her right against self-incrimination.
Murphy was called a third time, on March 10, 1995, to testify before the grand jury. She testified that on March 8, 1995, she had been granted immunity from prosecution. She admitted that some of the responses she gave to the grand jury on September 14, 1994 were incorrect. Murphy said Sullivan and Miller picked her up the morning of July 5, 1994 between the hours of 8:00 — 9:00 a.m. Sullivan and Miller were driving a white Volvo and they drove to 9 Grant Street for the purpose of buying heroin. Murphy stated that Miller and Sullivan dropped her off at that address so that she could buy the heroin. When Miller and Sullivan returned, they were driving a different car, a blue car.
Murphy further testified that she then went with Miller and Sullivan to New Hampshire where they picked up Dyke at his home. After picking up Dyke, she recalled that they drove back down 93 towards Boston. Murphy specifically recalled driving near the intersection of Route 128 and 93, but, as a result of the valium and heroin she ingested that day, she fell asleep while still in the back seat of the blue car.
Murphy next remembered awakening in the parked blue car, alone, to the sounds of Sullivan, Miller and Dyke getting into the car. She recalls they were all breathing heavily. Murphy stated that when they left the scene, they traveled until they arrived at 9 Grant Street in Somerville, sometime after 2:00 p.m. Murphy testified that she went inside 9 Grant Street with Sullivan and Murphy while Dyke remained in the car. While inside the house, Murphy recalls seeing a news broadcast regarding a robbery and murder at a jewelry store. Murphy stated that Sullivan and Miller eventually left while she remained at 9 Grant Street. She testified that Dyke never went inside 9 Grant Street.
b. Sullivan Trial
Murphy was not called to testify at the Sullivan trial.
c. Dyke II Trial Testimony
Murphy was called by the Commonwealth to give testimony at Dyke II. On direct examination, Murphy said she awoke between 7-7:30 a.m. on July 5, 1994. She was awake for approximately half an hour when Sullivan and Miller arrived in a white Volvo. Murphy, Sullivan and Miller then drove to the Mpontsikaris house. Miller and Sullivan dropped Murphy off at the Mpontsikaris residence so that Murphy could buy heroin. Miller and Sullivan were gone for ten to fifteen minutes and when they returned, they were driving a blue car she had not seen before.
Miller, Sullivan and Murphy then left the Mpontsikaris residence and drove up Route 93 towards New Hampshire. They went to the home of Dyke, picked him up, and headed back down Route 93 towards Boston. Murphy did not know where they were going. As a result of the drugs Murphy had taken that day, she passed out in the back seat of the car while they were still driving. The last thing Murphy remembers prior to the incident was driving near the Route 93 and 128 intersection near the Burlington Mall.
The next event that Murphy recalls was awaking to a lot of noise and screaming. She was alone in the back seat of the blue car. She recalls Sullivan, Miller and Dyke getting into the blue car and they all appeared to be out of breath. She recalls seeing Sullivan with a gun. Miller was driving and they left the area and headed back to Somerville. Miller, Dyke and Sullivan dropped her off at the corner of Grant Street to purchase cigarettes while they remained in the car. They left her at the store and she did not see what direction they drove in when they left.
Murphy went to the Mpontsikaris residence. At the time she arrived, Bill and Mary Mpontsikaris and LeSage were at the residence. Miller and Sullivan subsequently arrived at the Mpontsikaris residence and Dyke was not with them.
Murphy admitted that when she was initially approached by Trooper Forster and Lambert from the Waltham Police Department, she did not tell them what had actually occurred on July 5, 1994. She further admitted that when she first appeared before the grand jury she lied about what had occurred on July 5th because she was afraid for her family.
On February 10, 1995, while in court for issues relating to child custody, Murphy ran into Trooper Forster and they started to talk. Murphy asked Trooper Forster what she should do if she knew something. Trooper Forster said they should talk and he arranged a meeting with Murphy, himself and Attorney Meier. She was subsequently given immunity. Murphy stated that after she was given immunity, she again appeared before the grand jury and this time testified truthfully as to what happened.
Attorney Sheketoff cross examined Murphy extensively as to her drug use. He also impeached her with discrepancies in testimony regarding how long she had been abusing drugs. Murphy admitted that she was receiving money for her relocation in connection with her testimony. Murphy stated that part of the agreement she had with the government gave her immunity from prosecution regarding her activities during June and July of 1994. She acknowledged that she can only be charged if she perjures herself at trial.
Attorney Sheketoff also examined Murphy as to her changed testimony regarding the events of July 5. She again admitted to lying the first time she appeared before the grand jury. She said that she was afraid of Sullivan. Murphy acknowledged that she did tell the grand jury that Sullivan had given her a stolen ring. She admitted that in her first appearance before the grand jury, she testified that she was dropped off at the Mpontsikaris residence on the morning of July 5 and spent the day with the Mpontsikarises and LeSage. She acknowledged that this was a lie. She also admitted to lying when she told the grand jury that she twice called Sullivan on his cellular phone on the morning of July 5. She confessed she made up this story. She said she knew Sullivan had received calls around that time, however, not because she called him, but because she was in the car with him at the time. She testified that she did not know who had called Sullivan.
Murphy said that after being granted immunity, she again appeared before the grand jury. She acknowledged that she failed to mention that she had not been dropped off at 9 Grant Street, but rather had been dropped off at the corner to buy cigarettes. She told the jury that when she did recall this fact, she contacted Trooper Forster and told him. She also said she told Trooper Forster that she had the time confused regarding the new broadcast regarding the incident. She initially said this broadcast was on in the afternoon, however, she later recalled that it had been on in the early evening. She stated that Sullivan and Miller returned to the Mpontsikaris residence a few hours after she had been dropped off.
Murphy stated on cross-examination that Dyke was not sitting in front of 9 Grant Street for four hours, as she previously testified to the grand jury. After being dropped off at the convenience store, she never saw Dyke again. She testified that after she was dropped off at the convenience store, she went to the Mpontsikaris residence alone, not with Miller and Sullivan. She told the grand jury that she went there with Miller and Sullivan because at the time that is what she believed to have happened. Murphy testified she did not know why she told the grand jury that Dyke was sitting in the car. She said she did not change her testimony because of the evidence of a 2:40 p.m. phone call which arguably conflicted with her testimony in her final appearance before the grand jury.
5. The Evidentiary Hearing
After the filing of the defendant’s motion for a new trial and the Commonwealth’s opposition, this court allowed the defendant’s request for an evidentiary hearing on the motion. Hearings on this motion took place on December 5, 2001 and June 5, 2002.[2] At the hearing, three witnesses were called. Attorney Yannetti was the prosecutor in Dyke II. Attorney Yannetti testified that he was not involved with Murphy’s grand jury testimony. He also testified that he was not the person who first sought immunity for Murphy, although he may have asked a Superior Court judge to grant her immunity. He acknowledged that he believed that Murphy was the only witness who could affirmatively say that Dyke was at the scene.
Attorney Yannetti also gave testimony regarding Mpontsikaris. He said that he thought Mpontsikaris was given a cooperation agreement because she had not given complete testimony at the Sullivan trial. He thought this was probably because she remembered additional information. He did not agree that the testimony given by Mpontsikaris at the Sullivan trial was necessarily false.
Attorney Yannetti was also questioned regarding the prosecution’s theories at the Sullivan and Dyke trials. Attorney Yannetti recalled that the theory in the Sullivan case was that Sullivan was the shooter and Miller had gone into the jewelry store with him. Dyke was considered a joint venturer who was outside the store, but did not enter the store. He does not think that Attorney Meier assigned a role to Dyke in the Sullivan case because it was not necessary in order to prosecute Sullivan. Attorney Yannetti stated that the theory in the Dyke trial was that Dyke was a joint venturer who was present at the scene and was ready and willing to offer assistance in the crime if necessary. Attorney Yannetti further stated he did not believe that there was a change in the prosecution’s theory of how the crime occurred between the Sullivan and Dyke trials. He testified that the theory was always that Dyke was a joint venturer outside the store and this theory was consistent in both trials. Finally, Attorney Yannetti stated that at the Dyke trial, he never knowingly called a witness who gave perjured testimony.
The next witness was Attorney Sheketoff who defended Dyke in Dyke I and Dyke II. Attorney Sheketoff knew there was a previous trial of Sullivan. He saw videotapes of the trial taken by Court TV and read at least part of the transcripts of the Sullivan trial with respect to key witnesses. Attorney Sheketoff was familiar with Murphy’s testimony before the grand jury and knew that she was not called to testify in the Sullivan case. He testified that Murphy had an evolving story. He stated that Murphy became more helpful to the Commonwealth after she was granted immunity. He testified that in his view, Murphy changed her story regarding what occurred after the incident because of the information that was presented that showed the inconsistencies in her testimony at trial.
Attorney Sheketoff also gave testimony regarding Mpontsikaris. He stated that at the Sullivan trial, she testified that Sullivan had used her phone and made no mention of Dyke. However, he stated she subsequently became unsure as to what phone was used and later stated that Dyke was mentioned by name in Sullivan’s conversation.
In Dyke I, Attorney Sheketoff asked the court to allow him to put into evidence the prosecution’s closing argument from the Sullivan case because the government should not be allowed to talk out of both sides of its mouth. Attorney Sheketoff stated that the court in Dyke I ruled that the Sullivan closing was not relevant to the Dyke trial.
Attorney Sheketoff also pointed out that Murphy testified that she was the person to go into the Mpontsikaris residence to purchase drugs on July 5. However, Mpontsikaris testified that she recalled Miller and Sullivan coming into her house that morning. Attorney Sheketoff suggested that the testimony given by both Murphy and Mpontsikaris in the Dyke trial cannot both be true and stated he that he doubts the validity of either version. He stated that in Dyke II, Attorney Yannetti argued that there was enough time after the robbery to go to Somerville, drop off Murphy, and then drive to New Hampshire on 93 North. Attorney Sheketoff said that the prosecution had to make this argument because Murphy said that the car went to Somerville to drop her off and Stacey Dyke testified that only three men arrived at her home that afternoon. On cross examination, Attorney Sheketoff acknowledged that testimony at odds with other testimony does not necessarily mean that anyone is lying.
Attorney Sheketoff testified that he did not do as much as he should have done in Dyke II with respect to raising this issue of the prosecution taking inconsistent positions at the Sullivan and Dyke trials. He said he did not have any tactical reason for not pressing for the introduction of the Sullivan closing in Dyke II. He further acknowledged that there had not been any controversy or disputes with the District Attorney’s office as to discovery documents.
Attorney Sheketoff acknowledged that the issue of whether the car went directly back to Somerville was only relevant with respect to the credibility of Murphy. He testified that his most important function at trial was to undermine the credibility of Murphy because, in his opinion, Murphy was the only one who put Dyke at the scene of the robbery and the murder. Attorney Sheketoff acknowledged that he made use of a number of prior inconsistent statements at trial.
The final witness called at the hearing was Attorney Meier who conducted the grand jury proceedings as to Sullivan, Miller and Dyke. Attorney Meier was also the prosecutor in the Sullivan trial. Attorney Meier stated that he sought immunity for Murphy because he thought she might have knowledge of this incident. He acknowledged that Murphy changed her testimony and that it may have been different at different times. He stated that he did not call Murphy to testify at the Sullivan trial. He said the phone call records did not bear on his decision to not call Murphy.
He stated that the conflict between Murphy and Mpontsikaris may have influenced his decision but that it was a tactical decision not to call her. He stated he did not have any reason to believe that she would perjure herself. He stated that based on the case at that point, strategically and tactically, he chose not to call her. He further stated that Murphy’s history of drug abuse and prostitution and her arrest the night before her proposed trial testimony were factors he considered in determining not to call her.
Attorney Meier also testified regarding the travel of the car after the attempted robbery and murder. He stated that the evidence at the Sullivan trial did not suggest that the car went back to Somerville. He said that the evidence was that Ware saw the assailants leave the jewelry store at 2:00 p.m. and that there was a 2:40 p.m. telephone call record that shows the car was in Andover. Attorney Meier testified that he “suggested” in his closing that the car did not go back to Somerville.
C. DISCUSSION
A motion for a new trial may be granted if it appears that justice may not have been done. Mass.R.Civ.P. 30(b); Commonwealth v. Moore, 408 Mass. 117, 125 (1990); Commonwealth v. Stewart, 383 Mass. 253, 257
(1981). The decision whether to grant such a motion is left largely to the sound discretion of the judge. See id.; Commonwealth v. Smith, 381 Mass. 141, 142 (1980). Dyke seeks a new trial on two grounds. First, the defendant raises a due process claim. He argues that his due process rights were violated when the Commonwealth presented two different theories of the same crime to convict two defendants at separate trials. He further argues that his due process rights were violated when the Commonwealth immunized, and produced at trial, two witnesses with inconsistent testimony as to the events surrounding the robbery and murder. The defendant’s second claim is that he was denied effective assistance of counsel when his counsel failed to present evidence of the Sullivan closing which directly impacted the credibility of the key eyewitness in the Commonwealth’s case.
1. Ineffective Assistance of Counsel
The contention that Attorney Sheketoff provided ineffective assistance is based on the argument that he did not exploit the apparent contradiction between the government’s position in the Sullivan trial to the effect that the car did not go back to Somerville after the homicide and robbery, and the government’s position in Dyke II that the car did go back to Somerville. The test for a claim of ineffective assistance of counsel is well established. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In order to prevail on a claim of ineffective assistance of counsel, “the defendant must show, first, `that there had been serious incompetency, inefficiency, or inattention of counsel falling measurably below that which might be expected from an ordinary fallible lawyer’ and, second, that counsel’s conduct `has likely deprived the defendant of an otherwise available, substantial ground of defence [sic].'”Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000) citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant is required to show actual prejudice. See Commonwealth v. Urena, 417 Mass. 692, 699 (1994). Courts will not reverse a conviction, even if incompetency is found, unless it is shown that better work would have accomplished something substantial for the defense. See Commonwealth v. Whitman, 430 Mass. 746, 757 (2000); Commonwealth v. Roberts, 423 Mass. 17, 20 (1996) Commonwealth v. Street, 388 Mass. 281, 285 (1983). The Supreme Court has stated that the, “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
Dyke argues that his counsel was ineffective for not exploiting the apparent contradiction between the government’s position in Sullivan to the effect that the car did not go back to Somerville, and the government’s position in Dyke II, that the car did go back to Somerville. In the present case, defense counsel thoroughly and effectively examined Murphy regarding her prior inconsistent statements as to what occurred immediately following the robbery and murder. Evidence of the Sullivan closing would not have accomplished anything substantial for the defense. The asserted inconsistency between the government’s positions at the two trials was too attenuated to be relevant, and, even if permitted, would have had far less impact than the inconsistent statements of Murphy herself. This court concludes that defense counsel was not ineffective as to this issue, but rather was highly effective. Alternatively, even if counsel was ineffective, the defendant was not deprived of a substantial defense. Murphy’s credibility was an important issue at trial, and her credibility was forcefully and effectively called into doubt.
Different theories
Dyke argues that his due process rights were violated when the Commonwealth presented two diametrically opposed sets of facts for the same crime through immunized witness in order to convict two separate defendants in two separate trials. Dyke argues that the Commonwealth presented evidence at his trial that directly conflicted with the evidence previously presented by the Commonwealth to secure a conviction at the Sullivan trial. Dyke contends that the Commonwealth, in Sullivan, told the jury that any suggestion that the car went to Somerville after the murder was unsupported by the evidence. Dyke asserts that the Commonwealth changed its position in Dyke II, when it presented Murphy who testified that the car went to Somerville after the murder. This court concludes that these different positions were a fair result of different evidence being presented at the two trials. First, Murphy, who was the key witness implicating Dyke, was not called by either party to testify in Sullivan. Second, there was no evidence presented at the Sullivan trial as to whether the car traveled to Somerville after the murder. Therefore, the argument the assistant district attorney made in the Sullivan closing was fair and reasonable. Furthermore, Murphy’s change in testimony regarding where the car went after the murder was brought to the attention of the jury in Dyke II through Attorney Sheketoff’s penetrating cross examination. For these reasons, the due process rights of Dyke were not violated.
3. Perjury
The evidence that Dyke asserts was perjured consists of three categories.
a. Where the car traveled immediately following the robbery and murder.
Dyke argues that the prosecution presented perjured testimony regarding where the car traveled after leaving Ware Jewelers. In her first appearance before the grand jury, Murphy stated that on the morning of July 5, Sullivan and Miller dropped her off at the Mpontsikaris residence and she did not see them again until later that evening. In her third appearance before the grand jury, Murphy stated that she was actually with Murphy and Sullivan all day and after the murder, Murphy, Sullivan, Dyke and Miller traveled to the Mpontsikaris residence. While Murphy, Sullivan and Miller went inside the Mpontsikaris home, Murphy testified that Dyke remained in the car for four hours. In Dyke II, Murphy acknowledged that she lied to the grand jury and, it was only after being granted immunity that she finally told the truth of what occurred on July 5. She admitted that the story she told about being in the Mpontsikaris residence with Sullivan and Miller while Dyke remained in the car was a lie. She further acknowledged when she appeared before the third grand jury, she forgot to mention that she had not been dropped off at 9 Grant Street after leaving Ware Jewelers, but had actually been dropped off at the corner of Grant Street to purchase cigarettes. All of this testimony related to events after the robbery and homicide and, again, was well developed for the jury.
b. The conversation that Mpontsikaris overheard the morning of July 5 concerning Dyke.
Dyke argues that the prosecution presented perjured evidence regarding Mpontsikaris’ recollection of a phone call made the morning of July 5 regarding Dyke. At the Sullivan trial, Mpontsikaris testified that she overheard either Miller or Sullivan making a telephone call from her kitchen phone. She testified that she heard Sullivan say to Miller, “it is all set, we’ve got a ride” without mention of Dyke. However, at the Dyke trial, when presented with her telephone records, she testified that she did not actually see Sullivan or Miller use the phone but assumed one of them had done so. Further, she testified that she did not hear the conversation, rather she only overheard mumbling in the kitchen. Finally, she stated that in addition to stating they had a ride, she was certain she overheard either Miller or Sullivan say, “we are going to New Hampshire to Dyke’s.” Dyke contends that these differences demonstrate perjured testimony.
During Attorney Sheketoff’s cross-examination of Mpontsikaris, these differences were fully brought to the jury’s attention. Mpontsikaris admitted that in her July 21, 1994 statement, she did not report, “we are going to New Hampshire to Dyke’s” to investigators. Mpontsikaris stated that her husband told her not to mention this because at that time, only Sullivan and Miller had been implicated in the crime. She acknowledged that she did not make prosecutors aware of this statement until May of 1997.
In Dyke II, defense counsel also pointed out that there were no calls placed to New Hampshire from the Mpontsikaris residence the morning of July 5 according to telephone records, nor was there any evidence of a cell phone record with any such call. However, none of this is inconsistent with the possibility that the call was made from a third phone. On cross-examination, Mpontsikaris testified that Sullivan had many cell phones. All of this evidence was fully brought to the attention of the jury who evaluated the credibility of Mpontsikaris
c. Who entered the Mpontsikaris residence the morning of July 5.
The third point of contrast relates to Murphy and Mpontsikaris’ testimony regarding who entered the Mpontsikaris’ residence the morning of July 5 to purchase drugs. Mpontsikaris stated that she saw Miller and Sullivan that morning while Murphy stated that Miller and Sullivan dropped her off and that she went into the house to purchase drugs.
Again, the inconsistent statements by the witnesses were before the jury. Further, what both Murphy and Mpontsikaris said could be true, what one of them said could be true, what both said could be false, and any of these alternatives may have occurred without either witness intentionally perjuring herself. There is no evidence that either witness testified falsely. Moreover, there is no evidence that the government sponsored any false testimony.
CONCLUSION
This court concludes that the defendant received a fair trial. The motion for a new trial is accordingly DENIED.
___________________________ Raymond J. Brassard Justice of the Superior Court
Dated: September 24, 2002.