Opinion
21-P-193
08-22-2022
COMMONWEALTH v. WILLIAM WRIGHT.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 2 3.0
The defendant, William Wright, appeals from his convictions, after a Superior Court jury trial, of armed home invasion, G. L. c. 265, § 18C, armed robbery while masked, G. L. c. 265, § 17, unlawfully carrying a firearm, G. L. c. 269, § 10 (a.), resisting arrest, G. L. c. 268, § 32B, and three counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b) - The defendant also appeals from the denial of his second motion for a new trial. Concluding that there is a reasonable possibility that the exculpatory crime scene photographs that were not disclosed prior to trial might have affected the outcome of the trial, we reverse the denial of the second motion for a new trial and the convictions of armed home invasion, armed robbery while masked, and assault and battery by means of a dangerous weapon. Concluding, however, that there is no reasonable possibility that the outcome of the other charges was affected by the nondisclosure, and seeing no merit in the defendant's other contentions, we affirm the convictions of unlawfully carrying a firearm and resisting arrest.
The defendant also pleaded guilty to an armed career criminal sentencing enhancement, G. L. c. 269, § 10G (c0, and to habitual offender sentencing enhancements, G. L.c. 279, § 25, in connection with the armed robbery and assault and battery charges.
The defendant does not challenge the denial of his first motion for a new trial.
1. Background.
On February 18, 2013, a masked man entered the victims' basement. Wielding a gun and threatening to shoot the three occupants, he robbed the victims of money, jewelry, and jars of marijuana. As the assailant was leaving, one of the victims, resident Corey Bergeron, became fearful that the assailant was going to shoot him and tackled the assailant. A fight ensued, during which the assailant shot Bergeron twice and his son once. At some point, Bergeron's son tore off the assailant's mask and saw his face.
The assailant dropped his gun on the porch and escaped. When Bergeron and his son returned inside to call the police, a person that all parties agree was the defendant ran onto the porch, grabbed items that had been dropped -- including the gun -- and ran away. Bergeron's son saw the defendant's face and testified at trial that he was the robber.
Almost immediately, the police responded to Bergeron's call, saw the defendant, and chased him. When the officers caught the defendant, he physically resisted the arrest. Near where the chase began, police found a backpack containing a revolver, $800, a gold chain, jars of marijuana, empty jars, and a ski mask. Police also recovered a holster where the defendant was arrested and a roll of duct tape in his jacket.
The only material fact that was contested was the identity of the masked assailant. The defendant told the police --consistent with his theory at trial -- that he and "DJ" decided to break into the victims' basement to steal money and marijuana. They both entered the basement, with DJ wearing a mask and the defendant pulling up his jacket to obscure his face. DJ had a firearm (not a revolver) that the defendant had supplied. When Bergeron entered the basement, the defendant ran to the front of the home and watched the fight. When the fight ended, the defendant ran onto the porch and grabbed the backpack and the items that had fallen.
Despite the fact that the defendant admitted to his involvement in an armed burglary, the Commonwealth never charged him with this crime and did not request that the jury be instructed on joint venture. Accordingly, the case went to the jury solely on the Commonwealth's theory that the defendant was the masked assailant.
2. Undisclosed evidence.
We review the denial of a motion for a new trial for "a significant error of law or other abuse of discretion." Commonwealth v. Rodriguez-Nieves, 487 Mass. 171, 176 (2021), quoting Commonwealth v. Vargas, 475 Mass. 338, 355 (2016). "If the new trial claim is constitutionally based, this court will exercise its own judgment on the ultimate . . . legal conclusions." Commonwealth v. Diaz, 100 Mass.App.Ct. 588, 592 (2022), quoting Rodriguez-Nieves, supra.
The crime scene photographs at issue here were items of mandatory discovery. See Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501 (2005). Because they were items of mandatory discovery, "the prosecution [was] on notice of the defendant's specific interest" in them without the necessity of a specific request. Rodriguez-Nieves, 487 Mass. at 179 n.12. Because the mandatory discovery provision is treated as a specific request by the defense, a new trial is required for the nondisclosure of exculpatory evidence "if the undisclosed evidence 'might have affected the outcome of the trial,'" In the Matter of a Grand Jury Investigation, 485 Mass. 641, 648-649 (2020), quoting Commonwealth v. Tucceri, 412 Mass. 401, 405 (1992), or "there is a reasonable possibility that the nondisclosed evidence would have made a difference." Commonwealth v. Laguer, 448 Mass. 585, 594 (2007).
Here, there is a reasonable possibility that the nondisclosed crime scene photographs would have made a difference in the outcome of the charges of armed home invasion, armed robbery, and assault and battery by means of a dangerous weapon. At trial, an important question was whether, as the defendant claimed, he could see into the porch from outside. Bergeron testified that the blinds were down, and the prosecutor argued in closing that the defendant's statement had to be false because he could not have seen into the porch with the blinds down. The photographs show the windows to the porch, opaque and with the blinds up. Accordingly, they provide powerful, objective support for the defendant's version of events and rebut the Commonwealth's version. See Commonwealth v. Caldwell, 487 Mass. 370, 377-378 (2021).
The photographs also show that the window on the exterior door to the porch was shattered. Thus, again, they support the defendant's statements that the exterior door shattered when the assailant tried to escape and rebut Bergeron's testimony that the interior (rather than exterior) door to the porch shattered at the beginning of the fight.
Another photograph showed a roll of duct tape in Bergeron's son's bedroom. The victims observed the assailant with duct tape, but the defendant told the police that the duct tape in his pocket had been there since before the break-in. The prosecutor during his closing argued at length that the duct tape in the defendant's pocket proved that the defendant's statement must be false because the victims saw the duct tape. The existence of another roll of duct tape supports the defendant's statement and rebuts the prosecutor's argument.
The exculpatory facts that the photographs corroborate are not "simply . . . detail[s]," Commonwealth v. Iguabita, 69 Mass.App.Ct. 295, 304 (2007), that are "of significance to the case in only a narrow, limited sense." Commonwealth v. Healy, 438 Mass. 672, 681 (2003). Rather, they go directly to the key differences between the defendant's statement and the victims' testimony, differences that were key points in the closing arguments. There is a reasonable possibility that the outcome of the five charges that required the defendant to be the assailant would have been different had this exculpatory mandatory discovery been disclosed prior to trial.
By contrast, the charges of unlawfully carrying a firearm and resisting arrest did not depend on the defendant's being the assailant in the home. No defense of any sort was offered to the charge of resisting arrest. The defendant admitted that he was the person on the porch grabbing the items and his counsel -- preserving credibility with the jury -- specifically admitted in closing argument that the defendant had picked up the firearm. The only defense was that, in his haste, the defendant did not realize that it was a firearm he was handling. Bergeron's son testified that the defendant was "looking for the gun and then he finally found it and booked it out the door." Bergeron testified that the gun "was underneath one of the racks" and the defendant "stayed there until [h]e found it." The defense that the defendant, who stated his familiarity with guns, picked up a firearm from the porch without realizing it and immediately left was tenuous at best. We see no reasonable possibility that the outcome of this charge would have been different had timely disclosure, both of the crime scene photographs and of the ballistics report, been made. See Healy, 438 Mass. at 680.
3. Identification.
"A judge, applying '[c]ommon law principles of fairness,' may decline to admit an unreliable eyewitness identification that resulted from a 'highly' or 'especially' suggestive confrontation with the defendant," even where the suggestiveness is "through no fault of the police." Commonwealth v. Johnson, 473 Mass. 594, 598-599 (2016), quoting Commonwealth v. Jones, 423 Mass. 99, 109 (1996). A defendant challenging an identification on this basis "bears the burden of proving suggestiveness by a preponderance of the evidence." Commonwealth v. McCray, 93 Mass.App.Ct. 835, 841 (2018). To establish suggestiveness, the defendant must show "that there is a substantial risk that [the circumstances surrounding the identification] influenced the witness's identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event." Johnson, supra at 604. If the defendant meets this burden, the judge must then "determin[e] whether the probative value of the relevant evidence was substantially outweighed by unfair prejudice," Commonwealth v. Fielding, 94 Mass.App.Ct. 718, 722 (2019), such that "it would be unfair for a jury to give it any weight." Johnson, 473 Mass. 602.
Normally, "appellate review in this context is limited to whether the judge abused his discretion," or committed "'a clear error of judgment in weighing' the factors relevant to the decision such that the decision [fell] outside the range of reasonable alternatives." Fielding, 94 Mass.App.Ct. at 722, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) . Because of the unusual procedural posture in this case, the defendant argues that we should review to determine whether "proper consideration of the relevant factors may have resulted in exclusion of the identification." Applying this standard, without deciding that it is the proper standard, we discern no realistic possibility that the trial judge would have excluded the identification of the defendant by Bergeron's son.
Both the motion judge who heard the motion to suppress (which was decided before Johnson) and the trial judge concluded that the identification was not particularly suggestive. In this regard, the identifying witness knew that the defendant was in custody but was not asked by anyone to identify the defendant or even to encounter him. Rather, the witness saw the defendant by happenstance while approaching an ambulance to seek medical care. See McCray, 93 Mass.App.Ct. at 841-842.
Regarding the probative value of the identification, the witness saw the defendant's face for "[a]t least three minutes" and made the identification "without hesitation," "within one hour of the crime." Commonwealth v. Phillips, 452 Mass. 617, 628 (2008). In these circumstances, there is no realistic possibility that the trial judge could have found that "the identification [was] so unreliable that it would be unfair for a jury to give it any weight." Johnson, 473 Mass. at 602.
4. Motion to dismiss.
Where the Commonwealth loses or destroys potentially exculpatory evidence, the judge must "determine[] the appropriate remedy," Commonwealth v. Lindsey, 72 Mass.App.Ct. 485, 491 (2008), by "balanc[ing] the Commonwealth's culpability, the materiality of the evidence, and the prejudice to the defendant." Commonwealth v. Williams, 455 Mass. 706, 718 (2010). "[W]e do not disturb the judge's decision absent a clear abuse of discretion." Commonwealth v. Norris, 483 Mass. 681, 694 (2019), quoting Commonwealth v. Kee, 449 Mass. 550, 554 (2007). Accord Lindsey, supra.
Here, as a remedy, the motion judge dismissed three counts of assault with the intent to murder, one count of unlawfully carrying a firearm, one count of unlawful possession of ammunition, and one count of larceny of a firearm. Furthermore, the parties entered into a stipulation that "a court order was in effect for preservation of the firearm . . . for DNA testing prior to test firing" but "the firearm was test fired prior to DNA testing." Defense counsel used this stipulation to powerful effect in his closing argument. See Kee, 449 Mass. at 557 n.8; Commonwealth v. Harwood, 432 Mass. 290, 302 (2000).
In light of the marginal value of the absence of the defendant's deoxyribonucleic acid (DNA) on a firearm that was in his backpack when he was apprehended and that his counsel admitted the defendant had handled, the extensive remedy provided by the motion and trial judges was within their discretion. "[0]ur courts have fashioned or upheld various judicial remedies for the loss of evidence," Commonwealth v. Heath, 89 Mass.App.Ct. 328, 340 (2016), quoting Kee, 449 Mass. at 557, bearing in mind that "[r]emedies for prosecutorial misconduct should be tailored to the injury suffered and should not unnecessarily infringe on competing interests." Commonwealth v. Teixeira, 76 Mass.App.Ct. 101, 109 (2010), quoting Commonwealth v. Cronk, 396 Mass. 194, 199 (1985).
5. Conclusion.
The order denying the defendant's second motion for a new trial is reversed. The defendant's convictions of armed home invasion, armed robbery while masked, and assault and battery by means of a dangerous weapon are reversed, and the verdicts are set aside. The defendant's convictions of resisting arrest and unlawfully carrying a firearm as an armed career criminal are affirmed.
So ordered.
(Blake, Massing & Ditkoff, JJ. )
The panelists are listed in order of seniority.