Opinion
20-P-709
06-08-2021
COMMONWEALTH v. Luther WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2018, following a jury trial in the Superior Court, the defendant, Luther Williams, was convicted of one count each of armed assault with intent to commit a robbery, G. L. c. 265, § 18 (b ) ; assault and battery by means of a firearm, G. L. c. 265, § 15E ; unlawful possession of a firearm as an armed career criminal, G. L. c. 269, §§ 10 (a ), 10G (a ) ; and unlawful possession of ammunition as an armed career criminal, G. L. c. 269, § 10 (h ). At the close of the Commonwealth's case and again at the close of trial, the defendant filed a motion for required findings of not guilty; both motions were denied. The defendant filed a timely notice of appeal from the judgments. The defendant subsequently moved for a new trial, arguing ineffective assistance of counsel and the Commonwealth's failure before trial to disclose certain exculpatory evidence. The motion was denied. The defendant's appeal from the order denying the motion and his direct appeal from the judgments were consolidated in this court. On appeal, the defendant challenges the order denying his motion for new trial and the judge's denial of that motion without first holding an evidentiary hearing. We affirm.
The trial judge was also the motion judge.
Background. We briefly summarize the undisputed facts, reserving certain of them for later discussion. On the evening of November 24, 2016, officers of the Springfield Police Department responded to the sound of gunshots in the direction of 30 Windsor Street. On arrival, officers found Randall Somerville lying on the ground, yelling that he had been shot; officers observed that Somerville had multiple gunshot wounds to his left leg. Somerville told officers that a man he knew as "Snipe[s]" shot him.
With the exception of the judge's determination that the defendant was the person who shot the victim, the defendant does not challenge any of the judge's factual findings as erroneous.
Both "Snipes" and "Snipez" are used in the record.
Earlier that evening, Somerville had received a text message from Robert Miller, whom Somerville had known for three or four years and had seen regularly during that period, seeking to arrange a meeting between Somerville and Snipes so that Somerville could sell drugs to Snipes. , Somerville had met the defendant six or seven times previously and knew him by that nickname.
That the message read, "Snipes at my house, he needs to c.u. He said he got 90."
Somerville did not initially disclose his true purpose for being at 30 Windsor Street to police. Until December, 2017, he had instead told investigators that he was there to pick up food.
Prior to the shooting, Somerville and his girlfriend drove to Miller's home at 30 Windsor Street, where Somerville observed Miller, Miller's daughter (with whom the defendant was also familiar), and Snipes on the porch. Miller and his daughter entered Miller's home, and the defendant approached Somerville's vehicle. Somerville stepped out of his car and exchanged small talk with the defendant, whom he "had no trouble identifying." At this point the defendant drew a gun, pointed it at Somerville's head, and told him to "run [his] pockets"; although Somerville defendant initially believed that the defendant was joking, he realized otherwise when the defendant grabbed the gold chain around Somerville's neck and fired the gun. A struggle ensued in which Somerville was shot in the leg; just over a minute passed from the time Somerville exited his vehicle to the final gunshot.
Somerville's girlfriend, despite being present during the shooting, remained in the car and was unable to identify the defendant from a photo array or at trial.
Investigators found shell casings and two cell phones at the scene. Somerville conceded that one of the cell phones recovered at the scene belonged to him and that it contained text messages showing he was at 30 Windsor Street to sell drugs, while the other phone belonged to the defendant's girlfriend, who stated that the defendant had used the phone on previous occasions. Two days after the shooting, investigators went to Somerville's home with a photographic array and Somerville identified the defendant as the shooter, being "[one hundred percent] positive."
At trial, the defendant proceeded on the theory that Somerville was lying in his identification of the defendant as the shooter. To that end, defense counsel vigorously cross-examined Somerville and the other prosecution witnesses, and called three witnesses for the defense, although neither the defendant nor Miller testified.
Discussion. 1. Standard of review. A judge may grant a motion for new trial "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 denial of a motion for new trial only for an abuse of discretion. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). We extend deference to the motion judge's ruling where that judge also presided at the trial. See Commonwealth v. Licata, 412 Mass. 654, 660 (1992).
2. Commonwealth's failure to disclose exculpatory evidence. "Under the due process clause of the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, a prosecutor must disclose exculpatory information to a defendant that is material to either guilt or punishment." Matter of a Grand Jury Investigation, 485 Mass. 641, 646-647 (2020), citing Brady v. Maryland, 373 U.S. 83, 87 (1963). The Commonwealth conceded, both in the trial court and on appeal, that the Commonwealth failed to disclose to the defendant exculpatory ballistics reports in its possession showing that the firearm that had been used to shoot Somerville had also been used in two subsequent shootings that occurred while the defendant was in custody.
We agree with the judge's conclusions that the ballistics information "len[t] some support to the argument that the defendant was not the culprit," and could have suggested that someone other than the defendant was responsible for shooting Somerville. We also agree that the Commonwealth's failure to disclose the information before trial amounted to a Brady violation but conclude that, given the strength of the Commonwealth's identification evidence in the case, the defendant was not prejudiced by the Commonwealth's failure to produce the ballistics evidence. See Commonwealth v. Barry, 481 Mass. 388, 394-395 (2019), quoting Commonwealth v. Bregoli, 431 Mass. 265, 272 (2000) (upholding motion judge's determination that defendants not prejudiced by Commonwealth's failure to produce exculpatory evidence that did not "carry a measure of strength in support" of defendant). See also Brady, 373 U.S. at 87. Accordingly, we discern no abuse of discretion in the judge's denial of the defendant's motion for new trial on the basis of the violation. "Even if [Brady ] evidence is exculpatory, a defendant seeking a new trial must still establish prejudice [resulting from the nondisclosure]." Commonwealth v. Hernandez, 481 Mass. 189, 196-197, cert. denied 140 S. Ct. 168 (2019).
As the judge recognized, because the defendant here did not specifically request the undisclosed evidence from the Commonwealth, his entitlement to a new trial turned on "whether there [was] a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial." Commonwealth v. Tucceri, 412 Mass. 401, 412-413 (1992), citing Commonwealth v. Grace, 397 Mass. 303, 306 (1986). See Matter of a Grand Jury Investigation, 485 Mass. at 648-649 ; Hernandez, 481 Mass. at 196-197 ; Commonwealth v. Murray, 461 Mass. 10, 21 (2011). The judge found the evidence ultimately "[did] not cast real doubt on the strong evidence of Somerville's identification of the defendant as the shooter." Cf. Barry, 481 Mass. 404. Particularly, although not exclusively, in light of the deference we accord to the judge's assessment of how the jury in this trial would have viewed the evidence at issue, we discern no abuse of discretion in the judge's determination.
To the extent that Commonwealth v. Sullivan, 478 Mass. 369, 382 (2017), articulates a more favorable standard -- "[t]o be granted a new trial, a defendant must establish that there is a reasonable possibility that the evidence would have made a difference in the jury's verdicts" -- for the reasons articulated infra, we are satisfied that the defendant has failed to meet his burden under that standard, either.
The evidence that the defendant was the shooter was strong. Somerville knew the defendant; had no trouble recognizing and distinguishing the defendant from Miller, whom he also knew; spoke with the defendant just prior to the shooting; and identified the defendant both immediately following the shooting and later in a lineup. In addition, the defendant's girlfriend's cell phone was found at the scene of the shooting, Somerville had received text messages saying that Snipes would be with Miller, and Somerville's girlfriend testified that Somerville and the person whom he met at 30 Windsor Street were in close proximity when they interacted prior to the shooting, underscoring Somerville's ability to see and identify the person whom he met, and who shot him soon afterward. While the later use of the weapon by someone other than the defendant could have suggested that the defendant was not the person who shot Somerville, another person's later possession of the gun would not have eliminated the possibility that the defendant used the gun to shoot Somerville on November 24. Given Somerville's immediate and consistent identification of the defendant, and the corroborating evidence of the defendant's presence at 30 Windsor Street, it was not an abuse of the judge's discretion to determine that evidence of the weapon's later use would not have caused a "substantial risk" of a different conclusion by the jury. See Hernandez, 481 Mass. at 197.
3. Ineffective assistance. To prevail on a motion for new trial based on ineffective assistance of counsel, the defendant must prove both that counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and that in doing so, it "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). Here, we discern no abuse of discretion in the judge's conclusion that trial counsel neither fell below this minimum standard in failing to present an alternative defense of good-faith mistaken identity, nor that counsel's failure to make this alternative argument prejudiced the defendant. See id.
In support of his motion for new trial, the defendant produced an affidavit from Garrett L. Berman, Ph.D., an expert in eyewitness identification (Berman affidavit). The Berman affidavit highlighted a number of limits to the accuracy of witness identification, some of which our appellate courts have explicitly recognized. See, e.g., Commonwealth v. Gomes, 470 Mass. 352, 372 (2015) (importance of informing jury that stress reduces accuracy of a witness' identification). Trial counsel also provided an affidavit in support of the motion for new trial, averring he "never entertained the possibility of a good-faith mistaken eyewitness theory," that he proceeded on the theory "that Somerville was lying about who shot him," and that "[i]t would not have hurt to have had an alternative defense [which] might have led the jury to acquittal or deadlock."
Notwithstanding trial counsel's willingness to fall on his sword with respect to his failure to consider an alternative defense, because the Berman affidavit does not address the factors cited by the judge in concluding that Somerville's identification of the defendant as the shooter "had a reliable basis" -- specifically, Somerville's opportunity to interact with (and identify) the defendant while not yet under stress by the production of the gun and Somerville's level of familiarity with the defendant -- we conclude that counsel's failure to pursue a good faith misidentification defense did not amount to ineffective assistance. The Berman affidavit did not foreclose the judge's explicit determination that in this case, the evidence supporting the reliability of Somerville's identification of the defendant eclipsed the evidence that could have supported even a complementary defense of good faith mistaken identity. See Commonwealth v. Pires, 453 Mass. 66, 71-72 (2009), citing Commonwealth v. Pressley, 390 Mass. 617, 620 (1983) (discussion of "honest but mistaken" identification).
As the judge was within his discretion in concluding that the theory of a good-faith mistaken identity would not have made a difference, we discern no abuse of discretion in his determination that it was not substandard practice for trial counsel to fail to pursue the defense, see Commonwealth v. Alcide, 472 Mass. 150, 165 (2015), quoting Commonwealth v. Collins, 470 Mass. 255, 262 (2014) (attorney "[i]s not ineffective for failing to make an objection that would have been futile under the prevailing case law"), and that even if it had been, any failing was not prejudicial. See Saferian, 366 Mass. at 96-97. Accordingly, there was no abuse of discretion in the denial of the defendant's motion for new trial based on ineffective assistance of counsel. See Commonwealth v. Comita, 441 Mass. 86, 95 (2004), citing Commonwealth v. Moore, 408 Mass. 117, 125 (1990).
To the extent that the defendant contends that the judge "rejected" the Berman affidavit, we disagree.
4. Hearing. A judge may rule on a motion for new trial without an evidentiary hearing if the judge "finds that the motion and affidavits do not present a substantial issue." Commonwealth v. Lys, 481 Mass. 1, 5-6 (2018). We review the judge's determination for an abuse of discretion. Commonwealth v. Denis, 442 Mass. 617, 628 (2004). See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (defendant entitled to evidentiary hearing only where "substantial issue" is supported by "substantial evidentiary showing"). Given our conclusion that the judge properly determined that a good faith misidentification defense would not have made a difference here, we agree with the judge that the defendant did not, in his submissions, demonstrate evidence of a "substantial issue." The judge did not abuse his discretion in declining to hold an evidentiary hearing.
5. Conclusion. The judgments and the order denying the motion for new trial are affirmed.
So ordered.
Affirmed