Opinion
21-P-420
05-31-2022
COMMONWEALTH v. JASON D. BRIDDON.
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 23.0
The defendant, Jason D. Briddon, was convicted after a Superior Court jury trial of rape, G. L. c. 265, § 22 (b), and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). A panel of this court affirmed the convictions on direct review but vacated an order denying the defendant's motion for a new trial and remanded for an evidentiary hearing. Commonwealth v. Briddon, 97 Mass.App.Ct. 1122 (2020). The panel concluded that it was manifestly unreasonable for trial counsel not to have contacted the defendant's ex-wife, Wendy Twiraga -- an alibi witness at the defendant's first trial -- before the defendant's retrial.Accordingly, the panel remanded for an evidentiary hearing on whether this failure deprived the defendant of a substantial ground of defense. On remand, the judge concluded that trial counsel's failure to contact Twiraga did not deprive the defendant of a substantial ground of defense because Twiraga had a Fifth Amendment privilege against testifying, and trial counsel could not have introduced her testimony at the defendant's retrial without violating his ethical responsibilities.
The defendant's first trial resulted in a mistrial.
The panel remanded the case "for the sole purpose of such a hearing by which the judge may assesses the potential and value of [Twiraga's] testimony in order to reassess the motion for a new trial. "
The defendant now appeals from this order denying his motion for a new trial. We conclude that defense counsel ethically could have introduced Twiraga's testimony. Further concluding that the absence of this testimony deprived the defendant of a substantial ground of defense, we reverse and remand for a new trial.
1. Standard of review.
"We review the denial of a motion for new trial 'only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Indrisano, 87 Mass.App.Ct. 709, 719 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). "When, as here, the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Jacobs, 488 Mass. 597, 600 (2021), quoting Commonwealth v. Perkins, 450 Mass. 834, 845 (2008).
To prevail on a motion for a new trial based on ineffective assistance of counsel, "the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Prado, 94 Mass.App.Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). As the prior panel already held that it was manifestly unreasonable for trial counsel not to have contacted Twiraga before the defendant's retrial, we ask only whether the motion judge erred or abused his discretion in finding that this failure did not "likely deprive[] the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Hampton, 88 Mass.App.Ct. 162, 166 (2015), quoting Commonwealth v. Egardo, 426 Mass. 48, 52 (1997).
2. Ability to introduce the alibi witness's prior testimony.
A witness cannot be compelled to testify "unless it is 'perfectly clear, from a careful consideration of all the circumstances in the case, . . . that the [testimony] cannot possibly have such tendency' to incriminate." Commonwealth v. Cotto, 471 Mass. 97, 120 (2015), quoting Commonwealth v. Funches, 379 Mass. 283, 289 (1979). Here, after holding two in camera hearings and two open-court hearings, the judge found that Twiraga's "invocation of the privilege [was] proper in the circumstances of the case." See Commonwealth v. Johnson, 486 Mass. 51, 62 n.12 (2020), quoting Commonwealth v. Martin, 423 Mass. 496, 503 (1996). In addition, the judge found that Twiraga "had sufficiently expressed [her] intent to invoke the privilege against self-incrimination" if she were called to testify. Hasouris v. Sorour, 92 Mass.App.Ct. 607, 612 (2018). Because Twiraga would have invoked her privilege, she would have been unavailable as a witness. See Id. at 611 ("in the context of a criminal proceeding, a valid invocation of the privilege against self-incrimination renders a witness unavailable").
The basis for Twiraga's privilege must remain under seal. See Pixley v. Commonwealth, 453 Mass. 827, 834 (2009) ("Having compelled such testimony [in a Martin hearing], the court has an obligation to ensure that the compelled testimony not be used in any way, directly or indirectly, against the witness in any criminal case").
Neither party challenges the judge's finding that Twiraga had a Fifth Amendment privilege or that Twiraga would have invoked her privilege at retrial, rendering her unavailable as a witness. We have reviewed the sealed transcripts and conclude that these findings are well-supported. See Pixley v. Commonwealth, 453 Mass. 827, 835 (2009). We turn, therefore, to whether Twiraga's prior testimony would have been admissible at trial.
Prior recorded testimony of an unavailable witness may be admitted "if the prior testimony was given under oath in a proceeding where the issues are substantially the same as the current proceeding, and the party against whom it is being offered had a reasonable opportunity and similar motivation to cross-examine the witness." Commonwealth v. Robinson, 451 Mass. 672, 674 (2008) . Here, Twiraga's testimony was given under oath at the defendant's first trial, and the Commonwealth cross-examined her at length. Accordingly, it was admissible at the retrial. See Commonwealth v. Sena, 441 Mass. 822, 833-834 (2004) (former testimony properly admitted where, "[a]t the first trial, the defendant had every opportunity and motive to question [the unavailable witness] about what he saw" and "in fact cross-examined him extensively"); Commonwealth v. Beauchamp, 49 Mass.App.Ct. 591, 601 (2000) (defendant's testimony at first trial admissible where "first trial involved the very same parties and issues -- the same crime was charged and the same . . . [defense] in the same circumstances was raised"). Contrast Commonwealth v. Steven, 29 Mass.App.Ct. 978, 980 (1990) (Commonwealth did not have same motive for cross-examination at trial as it did at suppression hearing).
The motion judge nevertheless concluded that trial counsel could not have introduced Twiraga's testimony at the retrial because counsel would have violated Mass. R. Prof. C. 3.3, as appearing in 426 Mass. 1383-1384 (1997), by offering it after Twiraga had invoked her privilege against self-incrimination. We disagree.
The defendant's constitutional right to the effective assistance of counsel "does not secure representation outside the purview of our rules of professional conduct." Commonwealth v. Leiva, 484 Mass. 766, 781-782 (2020) (interpreting rule 3.3 [e]). Former Massachusetts Rule of Professional Conduct 3.3 (a) (4), as appearing in 426 Mass. 1301, 1383 (1997), prohibits a lawyer from "knowingly[] . . . offer[ing] evidence that the lawyer knows to be false." In this context, "knowingly" and "knows" "denote[] actual knowledge of the fact in question." Mass. R. Prof. C. 9.1 (f), as appearing in 426 Mass. 1432 (1997). See Mass. R. Prof. C. 3.3 comment 8, as appearing in 471 Mass. 1420 (2015) ("The prohibition . . . only applies if the lawyer knows that the evidence is false"). A lawyer does not have "actual" knowledge of "unknown information, even if a reasonable lawyer would have discovered [such information] through inquiry." Leiva, supra at 786, quoting 2 Restatement (Third) of the Law Governing Lawyers § 120 comment c (2000) .
After the retrial, the rules of professional conduct were amended, and former Rule 3.3 (a) (4) became Rule 3.3 (a) (3), but the applicable provisions were not changed in substance. See 471 Mass. 1416-1417. Both versions of the rule authorize the narrative method of presenting a defendant's perjurious testimony. See Leiva, 484 Mass. at 783; Mass. R. Prof. C. 3.3 (e), as appearing in 426 Mass. 1383-1384 (1997), and 471 Mass. 1417-1418 (2015).
Rule 3.3 does not apply if a lawyer merely suspects that a witness's testimony may be untruthful. Although the rule is intended "to prevent the trier of fact from being misled by false evidence," Mass. R. Prof. C. 3.3 comment 5, as appearing in 471 Mass. 1420 (2015), "[o]ur system[] . . . hedges against the risk that judgment will be rendered on false premises by providing for rigorous cross-examination and reserving the task of distinguishing truth from falsity to the jury." Leiva, 484 Mass. at 784 n.19.
Here, defense counsel would have had no reason to think --let alone "know" -- that Twiraga's testimony from the first trial was false. Had Twiraga asserted her privilege against self-incrimination, the judge would have held an in camera hearing and found that Twiraga's invocation of the privilege was proper. The judge would have been barred from revealing the basis for Twiraga's privilege. See Pixley, 453 Mass. at 836-837 ("disclosure of . . . testimony at the Martin hearing to defense counsel or the defendant is prohibited by art. 12 [of the Massachusetts Declaration of Rights] and the Fifth Amendment").
Even if trial counsel would have assumed that the basis of Twiraga's privilege would have been a possible perjury prosecution, he still would not have known that Twiraga's testimony at the first trial was false. For the privilege to apply, Twiraga's answers at the first trial need not "in themselves support a conviction" of perjury. Commonwealth v. Alicea, 464 Mass. 837, 842 (2013), quoting Commonwealth v. Freeman, 442 Mass. 779, 785 (2004). Her testimony need only threaten "possible exposure to perjury charges" by "furnish[ing] a link in the chain of evidence needed to prosecute [her]." Johnson, 486 Mass. at 60-61, quoting Commonwealth v. Funches, 379 Mass. 283, 289 (1979). Even if Twiraga's testimony at the first trial was true, so long as the government could reasonably assert that it was false, she could invoke the privilege against self-incrimination if her truthful testimony at the retrial would assist the government in prosecuting her for perjury at the first trial. Moreover, defense counsel would not have known which of Twiraga's statements from the first trial were true or false, or even whether she was telling the truth at the first trial or at the Martin hearing at retrial. Of course, we do not mean to imply that potential perjury charges were in fact the basis of the claim of privilege; that basis is properly under seal. See Alicea, 464 Mass. at 843. We discuss this merely to explain why rule 3.3 would not prevent the introduction of Twiraga's prior testimony even under that scenario.
For these reasons, defense counsel would not have violated rule 3.3 by seeking to introduce, at the retrial, Twiraga's prior recorded testimony. Contrast In re Griffith, 440 Mass. 500, 505-506, 508-509 (2003) (attorney engaged in misconduct that "threatened the integrity of the trial" where client responded to interrogatories by falsely denying knowledge of decedent's medical history after attorney had reviewed decedent's hospital records); In re Foley, 439 Mass. 324, 334-335 (2003) (imposing three-year suspension of lawyer who "embraced" defendant's idea of creating fabricated story, "concocted" elaborate fabricated story, instructed defendant to invent fake characters and visit site of story before trial, and presented story to prosecutor in hopes of "influenc[ing] the outcome of the case," even though case did not go to trial).
3. Prejudice.
The determinative question, therefore, is whether the absence of Twiraga's testimony "likely deprived the defendant of an otherwise available, substantial ground of defence." Prado, 94 Mass.App.Ct. at 255, quoting Saferian, 366 Mass. at 96. "[A] defense is 'substantial' for Saferian purposes where [the court has] a serious doubt whether the jury verdict would have been the same had the defense been presented." Commonwealth v. Miranda, 484 Mass. 799, 830 n.46 (2020), quoting Commonwealth v. Millien, 474 Mass. 417, 432 (2016). Accord Commonwealth v. Dowds, 483 Mass. 498, 504 (2019) ("the question is whether counsel's error likely influenced the jury's verdict").
The motion judge did not consider the potential effect of the omitted evidence, having concluded that it could not have been introduced.
At trial, the defendant admitted to being with the victim on the night of the crime and to driving her home, but he denied bringing her to another location and raping her. Contrast Commonwealth v. Salazar, 481 Mass. 105, 114 (2018) ("trial counsel chose to ride two horses into battle"). Having chosen to argue what counsel described as "straight denial," "counsel was required to pursue [that] defense [] effectively." Id. at 113. "[A]ny evidence that would undercut [the Commonwealth's case] by placing the defendant elsewhere when the [crime] occurred would necessarily be important." Commonwealth v. Diaz Perez, 484 Mass. 69, 76 (2020).
The victim testified that the defendant brought her to another location, raped her, then dropped her off at her house when it was getting light outside. Inconsistent with this timing, Twiraga testified that the defendant came home around 3 A.M., at which point she and the defendant began arguing because the defendant was supposed to help with child care in the morning.
Twiraga's testimony was not cumulative, contrast Jacobs, 488 Mass. at 603-604, as she was "the defendant's sole corroborating witness." Hampton, 88 Mass.App.Ct. at 171. The defense presented no other corroborating evidence, "[t]he case [being] a duel of credibility." Id. at 168. Contrast Salazar, 481 Mass. at 113, 116 (no substantial likelihood of miscarriage of justice from omitted evidence of defendant's intoxication where there was other evidence of intoxication).
Moreover, the probable effect of Twiraga's testimony "is not entirely theoretical: the defendant's first trial, at which [the witness] testified that the defendant had been . . . with [her] when the [crime] occurred, resulted in a mistrial." Diaz Perez, 484 Mass. at 76. Accord Commonwealth v. Pittman, 60 Mass.App.Ct. 161, 171 (2003) ("When the jury at the defendant's second trial had [the witness's] testimony . . ., they were unable to reach a verdict"). Lastly, although the jury could view the defendant's then-marital relationship with Twiraga "as supplying strong motivations for [her] to fabricate an alibi for the defendant, " Jacobs, 488 Mass. at 604; cf. Commonwealth v. Hudson, 446 Mass. 709, 725 (2006) ("there is obvious weakness in any alibi testimony of a defendant's girl friend"), "credibility assessments are for the jury." Diaz Perez, supra at 78. In light of the evident difficulties between the defendant and Twiraga, her testimony was not so devoid of credibility that a jury could not have believed it. See Id. at 77-78 ("The question before us is whether the missing testimony likely could have influenced the jury's verdicts, not whether the jury must have believed it").
Twiraga denied such a motivation on cross-examination.
In sum, "we lack substantial confidence that the jury verdict would have been the same," Commonwealth v. Rhodes, 482 Mass. 823, 829 (2019), were it not for trial counsel's "failure to introduce the most compelling evidence of the defendant's [theory]." Salazar, 481 Mass. at 113. Accordingly, we reverse the order denying the defendant's motion for a new trial. The defendant's convictions are vacated, the verdicts are set aside, and the case is remanded to the Superior Court for a new trial.
Of course, if Twiraga is otherwise available, there appears to be no reason the Commonwealth could not grant her immunity from prosecution pursuant to G. L. c. 233, § 20E, in which case her live testimony would be available at a retrial.
So ordered.
The panelists are listed in order of seniority.