Opinion
12-P-1349
03-25-2015
COMMONWEALTH v. EDWARD BETTENCOURT.
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
After a jury-waived trial in the Superior Court, the defendant, a former lieutenant in the Peabody police department (department), was convicted of twenty-one counts of unauthorized access to a computer system under G. L. c. 266, § 120F. The charges had stemmed from the creation of twenty-one unauthorized online civil service accounts. The trial judge denied the defendant's motion for a new trial that contended the findings of guilt were against the weight of the evidence, and the defendant filed a notice of appeal from that denial and from the convictions. Over four years later the defendant filed an omnibus "renewed motion for postconviction relief" and a motion for postconviction discovery. A motion judge, who was not the trial judge, denied both motions in a written memorandum of decision and the defendant again appealed. We have consolidated that appeal with the defendant's prior appeal.
The motion sought various forms of relief including a new trial or dismissal of the indictment.
Discussion. 1. Grand jury evidence. a. False testimony. The defendant argues that Sergeant Breen knowingly provided false testimony to the grand jury that differed in two respects from his trial testimony. Specifically, Breen stated to the grand jury that he was told his promotion examination score by the defendant before Breen himself accessed his score on December 21, 2004. Breen also stated that during their discussion the defendant showed him a list on the computer containing the scores and rankings of Breen and his competitors, which Breen "believe[d]" "was [displayed on] a [c]ivil [s]ervice website." The defendant learned that Breen would likely testify differently at trial when the defendant was provided an interview report by the prosecution the day before trial began. Breen told the interviewer that the inculpatory conversation took place between Christmas and New Year's Day, rather than before December 21, and that the defendant had done "something on the computer," then "showed him a hand-written list" and told him he "was third on the list." At trial Breen testified consistently with the interview, and denied that he had seen the computer screen.
The defendant moved for dismissal of the indictments because "Breen is the only witness in this entire case who says, 'I see [the defendant] manipulating a computer. I see him on a [c]ivil [s]ervice [w]ebsite and that's how he told me my score before I got it.'" Interpreting the requirements of Commonwealth v. Salman, 387 Mass. 160 (1982), the trial judge denied the motion. In Salman, a police officer testified before the grand jury that he had shown photographic arrays to several robbery victims and they had identified the defendant from an array, yet the affidavit of the defense investigator indicated that these witnesses had never been shown any photographs by the police department. Id. at 163, 166. The court in Salman held that the knowing presentation by the Commonwealth of false testimony to the grand jury provides grounds for dismissing an indictment. Id. at 166. Here, the evidence is far more muddled and failed to meet that high standard.
By the end of the prosecutor's examination of Breen, it was obvious that at least one of the grand jurors was confused about the list the defendant had purportedly shown Breen on the computer and asked Breen how the defendant could access such a list when he was only logging into individual accounts. Breen launched into a description of a list that, other witnesses made clear, was only available much later, after an appeal process had run. The grand juror pressed, "But the list you looked at then, it did not have the scores on it?" Breen said, "No." Breen agreed that the defendant had given him the scores of his competitors "through conversation." When the grand juror specifically asked him if the defendant "showed [him] a screen that had all the information including the scores for all [of his competitors]," Breen responded, "I'm pretty sure that's what he did, yes." Finally, the grand juror queried, "And you don't know whether that's something that he made or created?" to which Breen answered, "I don't know."
In addition, Breen gave three answers before the grand jury as to the timing of this conversation: first, he said it occurred before December 21, then he said he did not remember, and finally, "[I]t was probably" December 21.
Contrary to the knowing presentation of false testimony, Commonwealth v. Salman, 387 Mass. at 166, what appears from the transcript is that Breen had little memory of the details surrounding his discussion with the defendant, a fact the grand jury appear to have recognized in their pointed questioning. More importantly, the most damaging information in Breen's testimony -- that the defendant had disclosed to Breen his competitors' scores and where Breen ranked among those individuals -- did not change between the grand jury and the trial.
Even the motion judge noted in his decision endorsing the trial judge's decision to deny the motion to dismiss that "Breen's trial testimony, while different in some respects from that presented to the grand jury, is equally incriminating with respect to who created the fictitious civil service accounts."
In any event, we have no doubt that Breen's equivocal testimony regarding whether he actually saw the defendant access a computer screen had little influence on the grand jury's decision to indict where they also had before them a highly incriminating web of circumstantial evidence. See, e.g., Commonwealth v. Carr, 464 Mass. 855, 867 (2013).
As the motion judge explained,
"The first four accounts created on December 25th were for four of the five members of the Peabody police department who sat for the captain's promotional exam. The fifth member of the department who sat for that exam was the defendant. No account was created for him that night. An account was opened with a user name that was actually a nick name that the defendant used with that officer. The only account opened for a [p]olice officer not from Peabody was an account for a Salem police officer with whom the defendant had recently spoken and asked if she had taken the civil service exam. Each of the twenty-one officers whose accounts were created and accessed during those early morning hours on December 25th testified that he/she did not access or create accounts during that time period. Expert evidence was offered that the same person created all twenty-one of the accounts during this approximately four hour period that ended at 4:50 AM on December 25, 2004."
b. Rumors. The motion judge ruled that there was "no justification" for rumors of the defendant's guilt to have been brought to the attention of the grand jury during the questioning of two Peabody police officers. He added, and we agree, that "[n]onetheless, where the grand jury heard very substantial other evidence," dismissal is not warranted, a conclusion bolstered by the prosecutor's instruction to the grand jury limiting the use of such evidence. See generally Commonwealth v. St. Pierre, 377 Mass. 650, 656 (1979).
2. Renewed motion for postconviction relief. a. Failure to disclose agreed-upon and exculpatory evidence. After trial the defendant obtained a copy of an internal department memorandum dated one and one-half years before the crimes that discussed attempts by individuals in the department "to gain access to unauthorized portions of the department computer system" and the recent need to "change numerous passwords with the system." The defendant has failed to show, however, the relevancy of this somewhat stale information to the unauthorized access of governmental websites on the particular night in question here. We also agree with the motion judge that the pretrial discovery order that required the production of any "documents or other materials . . . indicating the identity of all Peabody [p]olice personnel who have previously made complaints of unauthorized access to their department computers and/or unauthorized use of their passwords within the . . . department" (emphases supplied), does not sweep this memorandum within its purview.
Further, the motion judge properly reasoned that the defendant has not shown any prejudice from the Commonwealth's purported failure to produce discovery materials that showed when "the [d]efendant [had] logged onto the Peabody [p]olice [d]epartment computer or computers" between November, 2004, and January, 2005. Such information would have added nothing to the trial where the evidence showed that it was not unusual for the defendant to leave the computer in his office logged-in under his user identification, a point the defense capitalized on when it argued that someone else could have easily committed the crimes under that user identification.
b. False and misleading evidence presented at trial.
(1) Parking space signage. The defendant provided postconviction material that suggested the parking sign at the front of the building that read "Watch Commander Only" -- and that had been pointed out on the view -- was not installed until after the crimes. Contrary to the defendant's claim however, the sign was hardly the only evidence that the defendant parked his vehicle there after 4:00 A.M. on the night in question. Specifically, the evidence shows that the defendant worked as the watch commander that morning. The station surveillance video recording depicts the defendant pulling into the parking space now labeled "Watch Commander Only" shortly after he arrived for work, at about 12:20 A.M., and entering the building. The recording also shows the defendant leaving the station at about 3:00 A.M. and the vehicle in the space in question immediately backing up and leaving the parking lot -- which coincides with other evidence that the defendant left the station at that time to assist another officer. A vehicle returns to that spot about one hour later, but the individual who exits the vehicle is not identifiable on the video recording, although the unauthorized access to the civil service website recommences shortly thereafter. In addition, the surveillance recording shows the defendant leaving the station at shortly after 8:00 A.M., at the end of his shift.
(2) Access to watch commander's office. To the extent the observations from the view may have suggested that the watch commander's office was secured, other evidence at trial made clear it was regularly available to other officers or dispatchers because the two computers in that office were the only ones in the station that had Microsoft Word for writing up reports.
(3) False testimony. The testimony of Chief Champagne affirming the accuracy of photographs of the exterior of the station that included the subsequently installed "Watch Commander Only" sign, as well as Detective Faletra's testimony identifying the defendant based on his having parked in the "watch commander's space" were at most, arguably negligent. Compare Commonwealth v. McLeod, 394 Mass. 727, 743-744 (1985) (requiring knowing presentation of false testimony and prejudice).
3. Postconviction discovery. Where the defendant offered only generalized, speculative, and conclusory reasons for seeking postconviction discovery related to computer use, he failed to make a prima facie showing that the discovery sought was "reasonably likely to uncover evidence that might warrant granting a new trial." Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). See Mass.R.Crim.P. 30(c)(4), as appearing in 435 Mass. 1501 (2001). Even were we to assume that the materials broadly described in the defendant's discovery request were to exist, the defendant has utterly failed to make a showing that these materials, if fully developed, would alter the overwhelming circumstantial evidence of guilt regarding his activities in the Peabody police station on Christmas morning in 2004.
The defendant sought discovery of improper attempts to gain access to the internal computer system; evidence of any individual user account being "used by a different person"; any user number change because of security reasons; and all documentary and physical evidence of anyone having been "logged on to the computer system using [the defendant's] log in numbers."
The defendant's additional request for postconviction discovery of any promises, inducements, or rewards to Breen overlooks the requirement that the Commonwealth is mandated to produce such information and the defendant has failed to show that it breached this duty. See Mass.R.Crim.P. 14(a)(1)(A)(ix), as amended, 444 Mass. 1501 (2005).
4. Evidentiary hearing. For the reasons stated above, no substantial issue was raised and, therefore, the motion judge did not abuse his discretion in denying the defendant's request for an evidentiary hearing.
Judgments affirmed.
Orders denying motion for new trial, renewed motion for postconviction relief, and motion for postconviction discovery affirmed.
By the Court (Kafker, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 25, 2015.