Judge to decide whether to allow Mattapan shooting victim’s new memory of shooter at trial

By Maria Cramer, Globe Staff

Marcus Hurd stunned Boston police detectives this summer when he told them that he could identify the person who shot him and killed four others, just weeks after he testified that he could not.

The defense attorney for Dwayne Moore — the man Hurd says he now recognizes as the person who shot him in the head in Mattapan in 2010 — is asking Suffolk Superior Court Judge Jeffrey Locke to ban Hurd from disclosing his new recollection when Moore is retried on four counts of first-degree murder next month.

Moore and a second man, Edward Washington, were charged with the 2010 killings of three adults and a toddler, and the shooting of Hurd. In March, a Suffolk Superior Court acquitted Washington, but deadlocked on Moore. During that trial, Hurd testified that the two men who shot him and the others wore masks or a tightly pulled hooded shirt.

Those 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.

Today, during a hearing before Locke, Boston police Detective Paul Donlon recalled a conversation he had with Hurd in July during a visit to the medical facility where Hurd now lives.

Questioned by Moore’s attorney, John Amabile, Donlon said the meeting was held in the smoking lounge at the facility at Hurd’s request.

According to Donlon, Hurd said, “ ‘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.

Amabile has argued in court papers that Hurd’s alleged recollection developed under suspicious circumstances, He has also argued that Suffolk District Attorney Daniel F. Conley’s office and Boston police were slow to share the dramatic turnabout with him.

Amabile today also questioned Kara Hayes, Conley’s chief victim witness advocate who said she was twice told by Hurd that his memory had improved. Today, Hayes said that on the day that Hurd testified in the first trial, he told that her Moore matched the shooter’s build, complexion and bone structure.

Hayes said she did not disclose Hurd’s comments.

“I thought I was speaking to someone who was quite literally debriefing’’ after a difficult day of testimony, she said in response to Amabile’s questions.

Hayes also testified that she met with Hurd in late spring or early summer at the medical facility where they watched sports on television together. On that day, Hurd told her that his memory had improved – and this time Hayes reacted.

“That’s a stop sign for me,’’ she said, adding that she told Hurd he must share his news with Boston police.

Amabile pressed Hayes to explain why she did not act more aggressively to alert prosecutors or police about Hurd’s revelations, especially after the first conversation.

“My mistake,’’ she said. “I didn’t see it to have the same weight as what he said in the second conversation.’’

Locke has not yet ruled and Hurd may appear as a witness later during the evidentiary hearing.