Opinion
21-P-466
07-11-2022
COMMONWEALTH v. MICHAEL COLLINS.
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
A jury found the defendant, Michael Collins, guilty of murder in the second degree for the killing of Myles Lawton, G. L. c. 265, § 1; armed assault with intent to murder for the shooting of Pierre Laguerre, G. L. c. 265, § 18 (b); and possession of an unlicensed firearm, G. L. c. 269, § 10 (a.) -Following his convictions, the defendant filed his first motion for a new trial; the motion was denied. The defendant pursued a consolidated appeal from his convictions and from the order denying his first motion for a new trial. The Supreme Judicial Court affirmed the defendant's convictions and the order denying his first motion for a new trial. Commonwealth v. Collins, 470 Mass. 255, 273 (2014). The defendant then filed a second motion for a new trial; the motion was denied, and the defendant filed a notice of appeal. Thereafter, the defendant filed a third motion for a new trial, which also was denied.
The defendant was indicted for murder in the first degree but was found guilty only of the lesser included offense. The jury found the defendant not guilty of armed robbery of Laguerre, G. L. c. 265, § 17.
The defendant filed a motion to reconsider the denial of the second motion for a new trial; the motion was denied, and the defendant filed a notice of appeal. Because the defendant raises no argument addressing the order denying his reconsideration motion, we need not discuss that order further. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) .
The defendant appeals from the orders denying his second and third motions for a new trial. As to the denial of the second motion for a new trial, the defendant argues that the judge erred in denying the motion because evidence of a prior bad act (the Chelsea shooting) should not have been admitted at his trial and his first appellate counsel was ineffective for failing to raise the issue in the defendant's direct appeal. As to the denial of the third motion for a new trial, the defendant argues that the judge erred in denying the motion because a report issued by the President's Council of Advisors on Science and Technology (the PCAST report) and materials considered and elicited in the course of a pretrial evidentiary hearing in United States vs. Tibbs, No. 2016 CF119431 (D.C. Super. Ct. Sept. 5, 2019) (Tibbs), constitute newly discovered evidence which would have resulted in the firearms identification testimony not being admitted at trial. We affirm.
Background.
We summarize the evidence at trial relevant to this appeal, reserving discussion of what the defendant contends is newly discovered evidence. On December 5, 2006, a man that Laguerre only knew by the name "Goodie" shot Laguerre and Lawton in Lawton's girlfriend's apartment located in Dorchester. The wounded Laguerre told a police officer that "Goodie" had shot him. Later, when presented with an array of photographs, Laguerre identified the defendant as the shooter and wrote on the back of the photograph, "That's him, Goodie. He shot me and [Myles Lawton]." Collins, 470 Mass. at 258 n.3. A neighbor who heard the commotion identified the defendant as a man he saw exiting the apartment holding a firearm as he fled the scene wearing a New York Mets jacket. The day after the shooting, the defendant and his girlfriend exchanged the white Mercury Mountaineer the girlfriend had rented for a white Ford Explorer. Three hours later, they exchanged the Explorer for a red Chevy Trailblazer. The defendant was arrested in Washington, D.C. on December 21, 2006. He had business cards in his pocket at the time of his arrest with the name "Goodie" on them. There was a New York Mets jacket on the backseat of the car in which he was a passenger.
For an additional summary of the evidence at trial, see Collins, 470 Mass. at 257-259.
"A Boston police officer testified that Laguerre said that 'Goldie' had shot him. But Laguerre testified that he did not know anyone named 'Goldie,' and that the mistake might be attributable to Laguerre's thick accent." Collins, 470 Mass. at 258 n.3.
The defendant was also implicated in the shooting of John Arnold in Chelsea on July 28, 2006 (the Chelsea shooting), six months prior to the incidents in the present case. On the day after the Chelsea shooting, while at the hospital, Arnold told the police that he had been shot by Goodie and that he knew Goodie to be Michael Collins. Two days later, the police returned to the hospital to present Arnold with an array of photographs. Arnold identified the defendant as the shooter from the Chelsea shooting by placing a check mark on a photograph of the defendant. At trial, Arnold testified that he did not remember talking to the police at the hospital, he did not remember the photographic array, nor did he remember telling the police that Goodie had shot him. Arnold also claimed that he did not know Michael Collins, and he stated that he was "not a snitch." Arnold was impeached with evidence that he testified differently before the grand jury and at a motion hearing before trial, but this evidence was not admitted substantively, only for the purpose of evaluating Arnold's credibility.
The check mark was placed in an area above where it asked for initials because Arnold was unable to write due to his arm being in a cast.
Arnold's previously sworn testimony was that he was asked by the police about the identity of the individual who shot him and that the police showed him some photographs. He also testified that he did not pick anybody out of the photographs he was shown.
On January 22, 2007, after both the Chelsea shooting and the shootings at issue in this case, a highway maintenance worker found a firearm near a highway on-ramp in Boston. The police compared spent shell casings from the Chelsea shooting and the spent shell casings collected from the shootings of Laguerre and Lawton in Dorchester, with spent shell casings collected from the test-firing of the firearm that had been found by the highway maintenance worker. "Detectives from the Boston police department firearms analysis unit testified that in their opinion the Chelsea casings, the Dorchester casings, and the test-fired casings were fired from the same firearm, and that there was only a 'small' probability that they were fired from different weapons." Collins, 470 Mass. at 259.
As to the evidence admitted about the Chelsea shooting, the trial judge instructed the jury that "any such evidence can be used only for a very limited purpose, and it is this: Only to show any knowledge, intent, identity, motive, course of conduct or method material to proof of the crimes charged here." The judge also instructed the jury that the Chelsea shooting evidence:
"cannot be used to show that the defendant committed the acts charged in [this case], nor may it be used to show in any way that the defendant had a so-called criminal personality or a bad character. Nor, may it be used to show that if he committed any of the acts in Chelsea in July 2006 that he must have committed the acts charged in Boston in December 2006."
Discussion.
1. Ineffective assistance of counsel.
The defendant argues that the judge erred in denying his second motion for a new trial because appellate counsel was ineffective for failing to raise the argument that the probative value of the Chelsea shooting was outweighed by its prejudicial effect during the defendant's direct appeal. We disagree.
"Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant." Commonwealth v. Montez, 450 Mass. 736, 755 (2008). To prevail, "the defendant bears the substantial burden of demonstrating both that (1) the conduct of his counsel fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and (2) this conduct 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Henry, 88 Mass.App.Ct. 446, 452 (2015), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) . "The standard for determining ineffective assistance of appellate counsel is the same standard set forth in" Saferian, 366 Mass. at 96. Commonwealth v. Aspen, 85 Mass.App.Ct. 278, 281 (2014). "When assessing whether appellate counsel's behavior fell below the standard of an ordinary, fallible lawyer, we focus on whether appellate counsel 'failed to raise a significant and obvious issue . . . which . . . may have resulted in a reversal of the conviction, or an order for a new trial." Id. at 282, quoting Commonwealth v. Sowell, 43 Mass.App.Ct. 229, 232 (1993).
"It is well settled that the prosecution may not introduce evidence of a defendant's prior or subsequent bad acts for the purpose of demonstrating bad character or propensity to commit the crime[s] charged." Commonwealth v. Barrett, 418 Mass. 788, 793 (1994). However, such evidence is admissible if it "pertains to the defendant's knowledge, intent, motive, method, identity, or some other relevant issue at trial." Commonwealth v. Leonard, 428 Mass. 782, 786 (1999), citing Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) . "These matters are 'entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.'" Commonwealth v. Childs, 94 Mass.App.Ct. 67, 71 (2018), quoting Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert, denied, 138 S.Ct. 1038 (2018).
While appellate counsel's affidavit averred that she "believe[d] this to be an issue which [she] should have included in [the defendant's] appellate brief" and "it would not have detracted from other issues raised," we are not persuaded that the defendant met the first prong of the Saferian test. Saferian, 366 Mass. at 96. The trial judge properly admitted the evidence of the Chelsea shooting at trial for the purpose of establishing identity, see Leonard, 428 Mass. at 785-786; therefore, appellate counsel did not fail to raise an issue that was significant and obvious. See Aspen, 85 Mass.App.Ct. at 282. The defendant challenges the probative value of the Chelsea shooting evidence as "extremely low" compared to its "exceptional" prejudicial effect. There is no palpable error here where the judge, in his broad discretion, admitted the Chelsea shooting evidence with limiting instructions for the jury as to how they were and were not to use the evidence. We presume the jury followed these instructions. See Commonwealth v. Facella, 478 Mass. 393, 408-409 (2017). The Chelsea shooting evidence bore directly on the issue of the defendant's identity, showing that the defendant had the means to commit the crime and that the firearm was consistent with the weapon used in the shootings of Lawton and Laguerre.
In the defendant's direct appeal, appellate counsel raised five arguments, all of which the Supreme Judicial Court considered before issuing a decision that announced a new rule that "where the eyewitness did participate before trial in a nonsuggestive identification procedure and made something less than an unequivocal positive identification of the defendant[,]" Collins, 470 Mass. at 262, the in-court identification will be treated as an in-court showup and "admit[ted] ... in evidence only where there is 'good reason' for its admission." Id. at 261, quoting Commonwealth v. Crayton, 470 Mass. 228, 241 (2014). The Court affirmed the order denying the defendant's first motion for a new trial. The Court also concluded that there was "compelling evidence of the defendant's guilt" at trial. Collins, 470 Mass. at 266 (footnote omitted).
The defendant also points to Arnold's testimony to suggest that evidence that the defendant was the person who shot Arnold in Chelsea was "questionable and contradicted." It is unquestionable that Arnold's testimony at trial contradicted his earlier sworn testimonies. Arnold's trial testimony was also at odds with the trial testimony of the police officers. It was for the jury to determine the credibility of Arnold's testimony at trial as well as the testimony of the police officers that Arnold had identified Goodie as the person who shot Arnold. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
Given our conclusion that the trial judge properly admitted the Chelsea shooting evidence, and that appellate counsel's failure to raise this argument on the defendant's direct appeal did not fall "measurably below that which might be expected from an ordinary fallible lawyer," Saferian, 366 Mass. at 96, we need not reach the second prong of Saferian. The judge did not err in denying the defendant's second motion for a new trial.
2. Newly discovered evidence.
The defendant argues that the PCAST report and the facts established in Tibbs constitute "newly available evidence" which would have resulted in exclusion of the firearms identification testimony. "To prevail on a motion for a new trial based on newly discovered evidence, a defendant must meet the two-prong test set forth in Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The defendant must establish, first, that the evidence is newly available or newly discovered and, second, that the evidence casts real doubt on the justice of the conviction." Commonwealth v. Lessieur, 488 Mass. 620, 627 (2021) (quotations omitted). "Newly discovered evidence is evidence that was unknown to the defendant or counsel and not reasonably discoverable by them at the time of trial." Commonwealth v. Sullivan, 469 Mass. 340, 350 n.6 (2014), citing Grace, 397 Mass. at 306. "Moreover, the judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Grace, 397 Mass. at 306. The standard is not whether the verdict would have been different, but whether the evidence would have been a "real factor" in the jury's deliberations. Id. The addition of further information or new studies into a "preexisting debate does not amount to 'newly discovered evidence' for the purposes of a new trial motion." Commonwealth v. Shuman, 445 Mass. 268, 275 (2005).
It is undisputed that the PCAST report was published (2016) and the Tibbs materials were elicited (2019) after the defendant's trial (2009) had already concluded. The PCAST report concluded that "firearms analysis currently falls short of the criteria for foundational validity." In Tibbs, a District of Columbia superior court judge conducted a Daubert hearing on the admissibility of the firearms identification testimony. The question before the judge was whether firearms toolmark matching analysis was based upon reliable principles and methods such that the proffered testimony was admissible under Daubert. The testimony, affidavits, and studies in Tibbs undermined the validity of firearms identification methodology.
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
While the PCAST report and Tibbs were both issued after the defendant's trial concluded, the reports relied on by defense counsel at trial in this case in 2009 highlighted the same concerns. The PCAST report and Tibbs, while undoubtedly broadening our understanding of ballistics evidence, only added to an ongoing debate; they did not present new information. "[E]xpert testimony may not be considered newly discovered for purposes of a new trial motion simply because recent studies may lend more credibility to expert testimony that was or could have been presented at trial." Shuman, 445 Mass. at 275. See, e.g., Lessieur, 488 Mass. at 627. The same is true here. "To hold otherwise would provide convicted defendants with a new trial whenever they could find a credible expert with new research results supporting claims that the defendant made or could have made at trial." Shuman, 445 Mass. at 275.
Here, the trial judge held a full evidentiary hearing pursuant to Daubert-Lanigan to address the admissibility of the ballistics evidence. The defendant has not demonstrated that, even with the benefit of the PCAST report and Tibbs, the testimony of the ballisticians would have been excluded. Even in Tibbs, the judge held that this type of testimony was admissible so long as the ballistician did not give an unqualified opinion. Here, in a ruling that proved prescient, the judge limited the opinion of each ballistician to whether "there is ... a small probability that [the ballistics] came from a different weapon, or in his opinion a significant probability that it came from the same weapon." See Commonwealth v. Pytou Heang, 458 Mass. 827, 848 (2011).
See Commonwealth v. Lanigan, 419 Mass. 15 (1994).
Even if the PCAST report and Tibbs were newly discovered evidence, the defendant fails to demonstrate a substantial risk that the jury would have reached a different conclusion had the ballisticians' testimonies been further limited because, as the Supreme Judicial Court concluded (a conclusion with which we agree), there was "compelling evidence of the defendant's guilt" at trial. Collins, 470 Mass. at 266 (footnote omitted). Both Teresa Jones and Laguerre, who were in the apartment, identified the defendant as the person who shot Lawton and Laguerre; that night Laguerre told a police officer that "Goodie" shot him; and a neighbor identified the defendant as the man he saw leaving the apartment carrying a firearm. The defendant and his girlfriend changed cars repeatedly just after the shootings; and the defendant travelled to Washington, D.C., where he was arrested with business cards identifying him as "Goodie" and where he was in possession of a New York Mets jacket.
The judge did not err in denying the defendant's third motion for a new trial.
Orders entered January 10, 2020, and March 15, 2021, denying second and third motions for new trial affirmed.
Order entered February 28, 2020, denying motion for reconsideration affirmed.
Green, C.J., Sullivan & Henry, JJ.
The panelists are listed in order of seniority.