Opinion
14-P-735
05-05-2015
COMMONWEALTH v. MAC HUDSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Mac Hudson, appeals from the denials, by a judge of the Superior Court, of his second and third motions for a new trial, each without an evidentiary hearing. Hudson was convicted by a jury, upon retrial in 1997, of second degree murder, assault and battery by means of a dangerous weapon, armed assault with intent to murder, armed assault with intent to rob, and unlawful possession of a firearm. Hudson advances multiple arguments on appeal, which we address in turn. After careful consideration, we affirm.
Hudson's appeals from the denial of each motion were consolidated. Both motions were denied by a judge who was not the presiding judge at either the first or second trial.
Suffice it to say that this case has a long and complicated factual and procedural history, most of which we need not repeat here. Briefly, the primary issue at Hudson's trial was identification: whether Hudson was one of the three suspects at the scene, and whether he was one of the two suspects who fired the fatal shots at the victim, Derek Twitty, and the nonfatal shots at the other victim, Mark Jones. Keil Kimbrough (Kimbrough), who knew Hudson previously, testified at the first trial that Hudson was at the scene and was one of the shooters. Between the first and second trials, Kimbrough recanted this testimony (asserting that he had lied in exchange for leniency in his own criminal matters) in an affidavit. At the second trial, Kimbrough was permitted to invoke his Fifth Amendment privilege, and his testimony on direct and cross-examination from the first trial was read in evidence; he was also impeached by his pending criminal cases. He was not impeached, however, with his recantation affidavit.
Hudson, along with codefendant Charles Hughes, was originally tried and convicted in 1990 of the same crimes for which he is currently sentenced. A second codefendant, Terry Carter, was acquitted. On direct appeal, this court reversed Hudson's (and Hughes's) convictions for reasons not pertinent here. See Commonwealth v. Hudson, 36 Mass. App. Ct. 1115 (1994). The second trial took place in 1997 and resulted in Hudson's instant convictions; this court affirmed Hudson's convictions on direct appeal. See Commonwealth v. Hudson, 49 Mass. App. Ct. 1118 (2000). On Hudson's first motion for a new trial, we reversed the denial by that trial judge and remanded for a new (third) trial. Upon further appellate review, the Supreme Judicial Court affirmed the denial of the first motion for a new trial; that opinion contains a useful procedural and factual history regarding this case. See Commonwealth v. Hudson, 446 Mass. 709 (2006).
All references are to Hudson's second trial unless otherwise noted.
Dwayne Moody and Larry Brown both identified Hudson at retrial as one of the suspects at the scene, although, as well documented, both witnesses and their identifications were beset with issues, as borne out by cross-examination. Jones, the surviving victim, also identified Hudson, both before trial and at trial, as one of the shooters, although Jones has since retreated from his trial testimony. No forensic evidence connected Hudson to the crimes.
Discussion. "The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). We review the judge's ruling "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Where, as here, the motion judge was not the trial judge, we are in "as good a position as the motion judge to assess the trial record." Ibid.
"A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Id. at 305. "The motion judge decides not whether the verdict would have been different, but . . . whether the new evidence would probably have been a real factor in the jury's deliberations." Id. at 306. Concerning discovery of the evidence, the evidence "must . . . have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial (or at the time of the presentation of an earlier motion for a new trial)." Commonwealth v. Weichell, 446 Mass. 785, 798 (2006), quoting from Commonwealth v. Grace, supra at 306.
1. Discovery violations. Hudson first argues that, in violation of his due process rights and standing discovery orders, the prosecution failed to disclose: (1) documents relating to Toya Kimbrough (Toya), Kimbrough's sister; (2) police reports relating to Louis Andrade; and (3) police reports and notes relating to "the early stages of the investigation."
As a requirement of due process, the Commonwealth has a duty to disclose to a defendant material, exculpatory evidence in its possession or control. See Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 97, 106-107 (1976); Commonwealth v. Tucceri, 412 Mass. 401, 404-405 (1992). Where the defendant claims that the Commonwealth has withheld or not disclosed still-existing exculpatory evidence, "the defendant must first prove that the evidence was, in fact, exculpatory." Commonwealth v. Healy, 438 Mass. 672, 679 (2003). Evidence is exculpatory if it "tends to 'negate the guilt of the accused.'" Ibid., quoting from Commonwealth v. St. Germain, 381 Mass. 256, 261 n.6 (1980). Where the defendant specifically requested the evidence that was not disclosed, he "need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure." Commonwealth v. Tucceri, supra at 412. If the defendant did not specifically request the evidence, or only generally requested exculpatory evidence, he must show that there is a "substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial." Id. at 413.
In the first instance, we are dubious that the evidence at issue here was actually requested by Hudson prior to the second trial, such that he may benefit from a more lenient prejudice standard. See id. at 412-413. The record contains Hudson's discovery motion from the first trial; as to the second trial, it only contains a pretrial discovery agreement indicating that the Commonwealth agreed to turn over, inter alia, (1) any exculpatory evidence generally, (2) a list of prospective witnesses and their written or recorded statements, and (3) "Police reports in the possession or control of the [Assistant District Attorney (ADA)]" (emphasis added). It does not appear that the Toya Kimbrough documents, police reports and notes concerning Andrade, and miscellaneous police notes and reports -- if not in the possession of the ADA before trial -- fell under any specific category included in the pretrial agreement.
Even allowing Hudson the benefit of the more lenient standard, under which he must show that a "substantial basis exists for claiming prejudice from the nondisclosure," he has failed to meet his burden. As to the Toya Kimbrough documents, they indicate only that she was interviewed for an unknown position with the Suffolk County District Attorney's Office in December, 1989, eight months after the crimes occurred and five months before Hudson's first trial. Contrary to Hudson's contention, those documents do not indicate, one way or the other, whether she was hired. In the absence of additional evidence, the mere fact that Toya was interviewed at this time does not prove or even strongly suggest that the Commonwealth had reached a deal with Kimbrough in exchange for his testimony at the first trial. Compare Commonwealth v. Johnson, 21 Mass. App. Ct. 28, 36-37 (1985) (explicit evidence of a deal between witness and prosecution). Nor does it demonstrate, as Hudson suggests an attempt to show "contrivance on the part of the prosecution," that the prosecutor was aware of Toya shortly before the first trial, contrary to what the prosecutor told the trial judge. Therefore, assuming that evidence that Toya was interviewed would have been admissible at trial, its impact would have been slight, if any.
The Commonwealth has assumed that the evidence at issue was not disclosed and, for the purposes of this appeal, we adopt the same assumption.
In addition, Hudson now argues that, if trial counsel had been in possession of the Toya Kimbrough documents, counsel would have chosen to impeach Kimbrough with his recantation affidavit to prove that Kimbrough received a secret deal to testify for the prosecution. Hudson's argument is based on trial counsel's 2011 affidavit, in which counsel (referencing the Toya Kimbrough evidence) asserted, "With hard evidence suggesting that Kimbrough in fact had a deal, I believe I would have offered the recantation affidavit at the second trial." Counsel's statement stops short of unequivocally asserting that he would have impeached Kimbrough with his recantation affidavit if he knew of the Toya Kimbrough documents. Moreover, as stated, this information is not "hard evidence" of a deal. In any event, counsel's decision to not impeach Kimbrough with the affidavit -- an issue litigated extensively in this court and in the Supreme Judicial Court -- cannot be revived by mere evidence that Kimbrough's sister may or may not have been hired by the District Attorney.
Second, concerning the Andrade notes and documents, this evidence is not exculpatory because Andrade implicated Hudson in the crimes. Sidestepping this fact, Hudson claims that he could have used the evidence to call into question the Commonwealth's investigatory timeline. A review of the Andrade materials does not support the narrative that Hudson now argues that it does. Specifically, a series of documents relating to Andrade's pending criminal cases does not support a clear inference that Andrade implicated Hudson in the crimes before Kimbrough did, or that the police and prosecution reached a deal with Andrade in exchange for the information. More importantly, even if the documents indicate what Hudson claims they do, we doubt seriously that defense counsel would have introduced any evidence concerning Andrade, knowing that Andrade had told police that Hudson confessed to him. Additionally, any putative testimony from Andrade could have opened the door to evidence that Andrade and Hudson had committed another crime together following the crimes at issue here, and that Andrade had knowledge that Hudson had also shot another man.
We also note that any attempt to argue that Andrade, not Hudson, was the shorter of the two shooters, on the basis that he knew unpublished details of the crime and fit the height of the shorter shooter, may have been deemed inadmissible. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 800-801 (2009). Even if admissible, any argument to this end could have been strongly rebutted by evidence that Andrade knew those details only because Hudson confessed to him; moreover, any argument based on Andrade's height would be clearly speculative.
Third, Hudson points to numerous police documents and notes memorialized in the days and weeks after the crimes, arguing that those documents prove that the police's explanation that Kimbrough implicated Hudson two days after the crimes is false and further proves that the police and prosecution generally engaged in wrongdoing prior to and during the first and second trials. Nothing in the documents undermines the police's explanation of how Hudson came to be a suspect. Moreover, we conclude that this purported evidence would have had negligible impact on the trial. Hudson could have used the evidence to argue that the police lied about their investigatory timeline (even though we do not discern that inference from the evidence), but any such argument would essentially have been beside the point. Whether Hudson could raise some doubt in the jurors' minds about the investigatory timeline, there still remained the issue of identification and, namely, the four in-court identifications offered (one way or another) against him. It is a leap of logic to assume, as Hudson does, that, if he could impeach the police's investigatory timeline, he could then successfully argue that the identifications were coerced or induced by police and prosecution.
For example, a handwritten note, dated August 28, 1989, six days after the crimes and four days after Kimbrough implicated Hudson, requests that police officers call Twitty's mother. On the bottom of the note, Carter's and Hughes's names are written, but Hudson's is not. Hudson argues that this proves he was not a suspect at this stage, therefore undermining the police's assertion that Kimbrough implicated him on August 24, 1989. The problem with Hudson's argument is that any number of equally plausible meanings could be taken from the note. It could be that police had already informed Twitty's mother before that date that Hudson was a suspect, explaining why Hudson's name was omitted. Or it could be that Carter's and Hughes's names were not listed as suspects but simply people they wished to speak with Twitty's mother about. Given the possibilities, Hudson's interpretation does not carry much weight.
Additionally, Hudson argues that, even if this evidence does not meet the Brady or Tucceri standard, it constitutes newly discovered evidence that casts real doubt on his convictions, pursuant to Mass.R.Crim.P. 30(b). For the same reasons stated above, Hudson has also failed to meet the rule 30(b) prejudice standard.
Finally, Hudson twice invokes on appeal House v. Bell, 547 U.S. 518, 536-537 (2006), arguing that he is actually innocent of the convictions. It is unclear whether he is arguing actual innocence as a free-standing claim, or is contending that we should consider all of his claims, even if waived, because he is actually innocent. Regardless, House v. Bell does not support either argument. See id. at 536 (A Federal court in a habeas proceeding may consider claims that a State prisoner failed to first raise in State court if the prisoner demonstrates "cause for the default and prejudice from the asserted error").
2. Fifth Amendment privilege. Next, Hudson contends that the trial judge erred in allowing Kimbrough, at the second trial, to invoke his Fifth Amendment privilege and avoid testifying. This is a claim that Hudson could have raised on direct appeal or pursuant to his first motion for a new trial; his failure to do so renders it waived. See Commonwealth v. Amirault, 424 Mass. 618, 639 (1997); Commonwealth v. Chase, 433 Mass. 293, 297 (2001); Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). We therefore review this claim to determine only whether there has been error creating a substantial risk of miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
We discern no error here. Even if the statute of limitations for a perjury charge had run in relation to Kimbrough's testimony at the first trial, it had not run in relation to his first affidavit. Given that it was possible that Kimbrough (if not allowed to invoke his privilege) could have testified at the second trial contrary to what he had asserted in his 1995 affidavit, there was a risk that he could be charged with perjury with respect to that affidavit. Thus, it was not "perfectly clear" that Kimbrough had no risk of self-incrimination. See Commonwealth v. Martin, 423 Mass. 496, 502 (1996) (A witness cannot be forced to testify unless it is "'perfectly clear, from a careful consideration of all the circumstances in the case . . . that the answer[s] cannot possibly have [a] tendency' to incriminate").
Although Hudson argues that Kimbrough had waived his privilege by testifying at the first trial, it is far from clear, given Kimbrough's recantation affidavits and the record before us, that such a waiver would continue to be viable; moreover, an argument questioning whether Kimbrough provided his testimony or his affidavit statements voluntarily remains. See Commonwealth v. King, 436 Mass. 252, 259 (2002) (waiver occurs only where prior incriminating testimony given voluntarily). Finally, Hudson's contention that the trial judge should have conducted a voir dire prior to rendering the ruling is unsupported by case law. See Pixley v. Commonwealth, 453 Mass. 827, 832-833 (2009) (noting that in camera hearings are reserved for "exceptional circumstances"). The judge here made specific findings after considering the relevant case law, and we discern no error in this procedure.
3. Identifications by Moody and Brown. Hudson argues that there were suggestive circumstances surrounding Moody's and Brown's in-court identifications of him, including that both Moody and Brown had observed Hudson at the defense table at several pretrial proceedings. Hudson contends that, given the risk of misidentification, Moody's and Brown's identifications should have been excluded. Further, he argues that the trial judge's error in admitting the identifications was exacerbated by the judge's exclusion of Dorma Hughes's testimony.
Dorma Hughes apparently would have testified that, at a suppression hearing prior to the first trial, she overheard the prosecutor essentially informing Moody which person at the defense table was Hudson. This court previously determined that, while this testimony should have been admitted, its exclusion was harmless beyond a reasonable doubt.
As an initial matter, Hudson unsuccessfully challenged on direct appeal Brown's in-court identification as suggestive and, therefore, is estopped from relitigating that issue now. See Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994) (New trial motion not a vehicle to compel reconsideration of questions of law on which a defendant has had his day in appellate court); Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005) (Direct estoppel bars relitigation of issue of fact or law already decided on direct appeal). To the extent that Hudson challenges the trial judge's refusal to allow Dorma Hughes's testimony, we already rejected that issue on direct appeal, and thus, he is also estopped from raising that issue. Additionally, Hudson failed to challenge, on direct appeal or in his first motion for a new trial, Moody's in-court identification; thus, he has waived that issue. See Commonwealth v. Amirault, 424 Mass. at 639.
In any event, we discern no error in the trial judge's admission of Moody's and Brown's in-court identifications. Under the law in existence at the time of Hudson's trial, in-court identifications were inadmissible only where they were "tainted by an out-of-court confrontation . . . that [was] 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" See Commonwealth v. Crayton, 470 Mass. 228, 238 (2014), quoting from Commonwealth v. Carr, 464 Mass. 855, 877 (2013). Moreover, the Supreme Judicial Court's recent adoption of a more restrictive approach to in-court identifications is of no help to Hudson because that decisional law does not apply retroactively. See id. at 241-242 (New rule making in-court identifications by eyewitnesses present during the crime presumptively inadmissible shall apply prospectively only). Because Hudson has not alleged that Moody's and Brown's identifications were somehow tainted by improper or suggestive out-of-court identification procedures, and the record does not support such an inference, this claim lacks merit.
4. Consecutive sentences. This claim is also waived. In any event, we reject Hudson's argument that his sentences for assault and battery by means of a dangerous weapon, and armed assault with intent to murder, both based upon the shooting of Jones, were duplicative. Hudson concedes that the former is not a lesser included offense of the latter; additionally, it is inapposite that that the two convictions and sentences were based on the same underlying conduct. See Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 385-387 (1998).
5. Newly discovered evidence. Finally, it does not appear that the remaining purported newly discovered evidence -- affidavits from Julietta Gallop and Kimbrough, and reports concerning Boston police officers involved in the Carol Stuart case (Stuart reports) -- actually qualify as such. Namely, Hudson has not shown that, in the exercise of reasonable diligence, he would not have been able to obtain this evidence.
Concerning the Stuart reports specifically, defense counsel admitted in an affidavit that he was aware that some of the detectives implicated in the Stuart case had worked on Hudson's case, but that he had relied on the Commonwealth's representation that there were no existing reports involving those officers.
Regardless, this evidence, whether considered individually or collectively, would not have been a real factor in the jury's deliberations. First, Gallop did not testify at Hudson's trial, so her putative testimony would not serve to correct any claimed false testimony offered at trial. Second, even if the defendant had called Gallop as a witness, her purported testimony would have been at least equally hurtful to the defense as it may have been helpful. Namely, Gallop, if she had testified for the defense at trial in regards to her accusation that Boston police Detectives O'Malley and Thomas had coerced her into her grand jury testimony, would have been open to impeachment with (1) her grand jury testimony, (2) testimony from those detectives refuting her accusation, and (3) the fact that she had not come forward until over a decade after Hudson had been convicted.
Detectives O'Malley and Thomas submitted affidavits denying accusations that they coerced Gallop and Kimbrough into falsely implicating Hudson.
Second, Kimbrough's most recent affidavit adds little to his previous affidavit, merely asserting that, contrary to the Commonwealth's contention, he was not coerced into signing his initial recantation affidavit. Defense counsel's decision not to impeach Kimbrough at the second trial with his initial recantation affidavit, and the reasonableness of that strategic decision, has been thoroughly examined and discussed by the Supreme Judicial Court. See Commonwealth v. Hudson, 446 Mass. 709, 718-723 (2006). Even if we were to consider Kimbrough's most recent affidavit newly discovered, which we do not, it is pure speculation to assume that, armed with Kimbrough's latest assertion that he was not coerced into writing the original affidavit, defense counsel would then have chosen to impeach Kimbrough with his recantation, or that such impeachment would have ultimately made a difference during trial.
Finally, Hudson has attached a single article about the Stuart case; nothing in that article casts real doubt on the justice of Hudson's convictions.
Order denying second motion for new trial affirmed.
Order denying third motion for new trial affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 5, 2015.