Opinion
21-P-237
10-20-2022
COMMONWEALTH v. SHAWN HUNT.
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
Convicted after a jury trial of murder in the second degree of the victim, Alberto "Tito" Gonzalez, the defendant appeals. He argues that police did not have probable cause to seize and impound his rental car, and so the motion judge should have suppressed evidence that police found in it during a subsequent search pursuant to a warrant. He further argues that the trial judge erred in denying his motion for new trial, which claimed that: (1) the Commonwealth improperly failed to disclose a State police inventory policy, which was exculpatory because would support the defendant's theory that police conducted inventory search on his rental car before the search warrant issued; (2) the Commonwealth withheld exculpatory evidence inducements to a key witness, Lamont Todman, in the form lenient dispositions of Todman's drug offenses while this case was awaiting trial, and trial counsel was ineffective for not having obtained that evidence; and (3) the defendant was entitled to postconviction discovery of undisclosed inducements to Todman in exchange for his trial testimony. We affirm.
Background.
In summary, the trial evidence showed that the victim was shot and killed in a drive-by shooting in New Bedford on the evening of Thursday, November 20, 2003. An eyewitness described the vehicle involved in the drive-by shooting as a Ford Focus that under the streetlights looked teal blue, driven by a Black man wearing a black "doo-rag." About two days later, police seized a royal blue Ford Focus that was rented by the defendant and being driven by Corey Hubbard. In its passenger door pocket was a shell casing of the same caliber bullet as those used in the shooting, in its center console was a doo-rag, and elsewhere in the vehicle was unopened mail addressed to the defendant. Also at the scene of the seizure of the defendant's royal blue Focus was a navy blue Ford Focus (navy blue Focus) rented from the same car dealership and being driven by the key witness, Todman. The Commonwealth's theory was that the shooting stemmed from a fight a month earlier between a group including the victim and Christopher Goode against a group including the defendant, Jonathan Pittman, and Michael Douglas, during which the defendant and Douglas were injured.
Varying descriptions of the vehicle by other witnesses are set forth below in the discussion of the motion to suppress.
Subsequent comparison of a sample of the defendant's deoxyribonucleic acid (DNA) with wearer DNA in a mixture on the doo-rag showed that he could not be excluded as the source of the mixture's minor profile, but that profile was very common, so that the probability of a match in the African-American population was one in two.
Unless otherwise specified, references to a "Focus" mean the one rented by the defendant.
Five years after the drive-by shooting, police interviewed the defendant, who admitted he was injured in the fight, but denied having a problem with Goode. He also denied hanging around with anyone from New Bedford, including Pittman, Douglas, or Hubbard. As to the victim, he said he did not "have a beef with the kid."
Pittman is the defendant's cousin.
Also five years after the shooting, police interviewed Todman for the first time because he had been present at the seizure of the defendant's Focus driving a similar car. He disclosed as follows, to which he testified in the grand jury and at trial. After the fight, the defendant was angry because the victim had been "talking shit" about it. On the evening of the drive-by shooting, within a couple of minutes after the sound of sirens, the defendant, Pittman, and Douglas arrived at Hubbard's apartment in the defendant's Focus and ran inside. Although the weather was warm, Douglas was wearing gloves. The defendant said that they "got the kid," that the defendant had been driving, and that he needed to get out of town. He was carrying a black semiautomatic handgun, which he handed to Hubbard and told him to get rid of it. The defendant gave Hubbard the keys to his Focus, which Hubbard gave to Todman, telling him to clean out the car. Todman took the defendant's Focus to a car wash and quickly vacuumed the floor and seats, vacuuming up a shell casing. He did not look in the door pockets, and did not see the shell casing in the one on the passenger's side.
The defendant moved to suppress evidence found in and on his Focus, arguing that police did not have probable cause to seize it. A Superior Court judge (motion judge) denied the motion to suppress, ruling that when the police towed and impounded that car, they had probable cause to believe that it was an instrumentality of the drive-by shooting of the victim.
As discussed in Commonwealth v. Hunt, 84 Mass.App.Ct. 643, 644-645 (2013), the motion judge allowed without prejudice the defendant's motion to dismiss on the ground that certain grand jury testimony not relevant to this appeal had been fabricated. This court ruled it unlikely that the improper testimony affected the grand jury's decision to indict, particularly given this defendant's motive based on the fight, his statements after the shooting, his rental of the car involved, and the doo-rag and spent shell casing found inside it. Id. at 658.
After trial before a different judge (trial judge), a jury convicted the defendant of second-degree murder. The defendant moved for a new trial, arguing that the prosecution improperly had withheld evidence that Todman was "actively dealing drugs while cooperating with the Commonwealth," and that it had provided undisclosed inducements to Todman in the form of "extraordinarily lenient treatment." The defendant moved for postconviction discovery pursuant to Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001), but the record before us does not contain any argument on the discovery motion, or any ruling on it. In a supplemental motion for new trial, the defendant further argued that a State police policy mandating an inventory search of a towed vehicle was exculpatory evidence, because it would tend to prove that police had conducted an inventory search before the search warrant issued, thus lending support to the defendant's theory that the shell casing was "planted" after police impounded the car. After an evidentiary hearing, the trial judge denied the motions for new trial.
Discussion.
1. Motion to suppress.
The defendant contends that the motion judge erred in denying the motion to suppress evidence police found in his Focus, arguing that it was "merely one of three rented cars" matching the same description. Pointing to the navy blue Focus driven by Todman that police also impounded and a third blue Focus that was rented by Todman (third Focus) and that police were "actively seeking," the defendant argues that police lacked "an individualized belief" that the defendant's royal blue Focus was the car involved in the drive-by shooting, and only developed probable cause based on a trooper's subsequent observation of the shell casing in its passenger door pocket.
a. Findings of fact.
We summarize the facts found by the motion judge, supplemented by uncontested testimony from the motion hearing. Eyewitnesses to the drive-by shooting described the vehicle involved as a dark green, blue, or black four-door car, similar to a Dodge Neon. A named witness told police that on the afternoon of the shooting, on speakerphone calls to the victim, she recognized one of the voices as the defendant's, and heard the callers threaten to kill the victim. Another named witness, the victim's neighbor, told police that about one-half hour before the shooting, the defendant drove up in a small, possibly dark green four-door car and said, "[I'll] be back to get rid of [the victim]." Named witnesses told police that the defendant and Pittman often rented vehicles from a certain Ford dealership, and one described a blue Ford Focus that the defendant had recently rented. From that dealership, police learned that the defendant was renting the royal blue Ford Focus. Police also learned that Todman had rented the third Focus, also blue. Late on the afternoon of Friday, November 21, 2003, police broadcast a "be on the lookout" (BOLO) alert for the defendant's Focus, identifying it by registration number.
That witness did not testify at trial.
That witness also did not testify at trial.
The third blue Focus that Todman rented was a different vehicle than the navy blue one that Todman was operating at the scene of the seizure of the defendant's Focus. The motion judge found that police also broadcast a "be on the lookout" (BOLO) alert for that third Focus, but the record before us shows a BOLO alert only for the defendant's Focus. The discrepancy is immaterial to our analysis.
A few hours later, at 2:10 A.M. on Saturday, November 22, 2003, police found the defendant's royal blue Focus that was the subject of the BOLO, being operated by Hubbard at a gasoline station in Taunton. Also at the gasoline station was the navy blue Focus, not mentioned in the BOLO, being driven by Todman. Both cars were towed and impounded at the State police barracks in Middleborough.
On Monday, November 24, 2003, Trooper David Mackin photographed the exterior of the defendant's Focus. From outside it, Trooper Mackin saw scrape marks on its exterior passenger side and the spent shell casing in its front passenger door pocket. He told that information to Trooper Robert Kilnapp, who included it in his affidavit in support of an application for a warrant to search the defendant's Focus, which issued the following day.
The motion judge ruled that the warrantless seizure of the defendant's Focus was reasonable because police "had probable cause to believe that it was an instrumentality of the drive-by shooting of the victim." The motion judge rejected the defendant's claim that Trooper Mackin conducted a warrantless search when he observed the scrape on the car's exterior and the spent shell casing in its front passenger door pocket, finding that the trooper "did not enter the vehicle, and both the scrapes and spent shell casing were plainly visible as he stood outside."
b. Probable cause to seize defendant's Focus.
In reviewing a ruling on a motion to suppress evidence, we accept the judge's findings of fact absent clear error, and defer to his assessments of the weight and credibility to be given to testimony. The burden is on the Commonwealth to justify the seizure of the defendant's Focus, and in this circumstance it was required to show probable cause to believe that it was an instrumentality of the crime. We review de novo the legal question whether there was probable cause. See Commonwealth v. Gentile, 437 Mass. 569, 573 (2002). To have probable cause to seize the defendant's Focus, the police "must have entertained rationally more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt" (quotations and citations omitted). Id.
The defendant acknowledges that the motion judge did not ground his denial of the motion to suppress on the fact that Hubbard was not listed on the rental agreement for the defendant's Focus. See Commonwealth v. Campbell, 475 Mass. 611, 622 (2016) (absence of driver's name on rental agreement did not give police grounds to impound vehicle). Thus we do not consider that theory.
We conclude that there was no clear error in the motion judge's factual findings, and that police had probable cause to seize the defendant's Focus as an instrumentality of the drive- by shooting of the victim. Police had information from named witnesses that on the afternoon of the shooting the defendant was one of the callers on the speakerphone call in which threats were made to kill the victim, and that shortly before the shooting the defendant had said that he would be back to "get rid of" the victim; police also had a named witness's description of the vehicle involved in the shooting, which matched the defendant's Focus. The police seizure of the defendant's Focus was "grounded firmly in probable cause to believe that evidence [of the drive-by shooting] might be found in [it]." Gentile, 437 Mass. at 573. Contrast Commonwealth v. Jordan, 469 Mass. 134, 146 (2014) (no probable cause to stop rental car, where license plate matched that of car involved in shooting two days before, but police did not know identity of renter or terms of rental arrangement). Merely because Todman was driving the navy blue Focus and had rented yet a third Focus, both of which were the same make and model and similar colors to the defendant's royal blue Focus, did not defeat the probable cause to seize the defendant's Focus, described particularly in the BOLO with information including its registration number. See Commonwealth v. Pinto, 476 Mass. 361, 364 (2017).
2. Motion for new trial.
The defendant moved for a new trial, arguing that, in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), the Commonwealth failed to disclose exculpatory evidence in the form of a State police inventory policy, which the defendant maintains would tend to prove that before obtaining the search warrant police conducted an inventory search of his Focus and did not find the shell casing, which would lend support to his claim that police "planted" the casing. He also argued that lenient dispositions of Todman's cases, including two drug charges while this defendant's case was pending, evidenced that the Commonwealth had made undisclosed promises to Todman.
a. Findings of fact.
We summarize the facts found by the trial judge based on the evidentiary hearing on the motion for new trial, supplemented by our own review of the documentary evidence. Before Todman's grand jury testimony on November 20, 2008, State police Lieutenant Ann Marie Robertson obtained his criminal record and learned that it included several drug cases; Robertson testified that she did not know anything about those cases, most of which had been resolved favorably to Todman. At the time of his grand jury testimony, Todman was on probation for a drug offense. In Robertson's opinion, Todman's criminal record was not strikingly different from those of other witnesses, and the judge concurred with that observation. The Commonwealth promised Todman that if he testified truthfully in this case, he would not be prosecuted for any role in the homicide, including as an accessory after the fact.
In March 2004, Todman was charged with possession of oxycodone and distribution of cocaine in a school zone, but by agreement with the Commonwealth the case was continued without a finding on a reduced charge of simple possession. On another drug charge that originated in April 2004, Todman was acquitted at trial. In a 2006 drug charge, Todman successfully moved to suppress evidence and so the charge was dismissed.
As the defendant does, we focus our attention on the two drug offenses with which Todman was charged in 2010 and 2011, while this defendant's 2009 murder indictment was pending and before the 2015 trial. Both of those involved traffic stops of Todman by State police Lieutenant Mark Cyr, who was married to Robertson. Cyr was assigned to the gang unit and did much of his work with the New Bedford police narcotics unit; he patrolled "high-crime areas" and conducted as many traffic stops as he could. On November 19, 2010, Cyr saw a man get out of a vehicle and "nervously turn[] and look[] in all directions." Police checked the registration of the vehicle, learned that it was expired, and stopped the vehicle. Todman was driving, and three small children were in the back seat. Police searched the vehicle and seized a plastic bag containing forty-nine thirtymilligram oxycodone pills, worth about $1,000 total.
Cyr did not arrest Todman, instead summonsing him to court on a charge of possession of a class B substance with intent to distribute. In Cyr's view, Todman's offense was "fairly small potatoes" for New Bedford; it was "very, very rare" for Cyr to arrest someone with so small a quantity of drugs. Cyr also explained that he did not want to arrest Todman in front of his children. Cyr did not contact the Department of Children and Families (DCF) because he was not concerned for the safety of the children, and the judge credited that testimony. Cyr testified that later, remembering that someone named Todman was involved in a homicide that Robertson was investigating, Cyr asked her what Todman's first name was, and realized it was the same person.
Cyr testified that it would have been within his discretion to simply confiscate the drugs and have them destroyed, and that he did not do so likely because of Todman's criminal record.
General Laws c. 119, § 51A, would have required Cyr, a mandated reporter, to contact DCF if he, "in his professional capacity, ha[d] reasonable cause to believe that a child [was] suffering physical or emotional injury" resulting from abuse or neglect. On cross-examination of Cyr, defense counsel elicited that drug dealing is at times a violent trade, and that the point of sale of drugs is "a dangerous place to be."
Five months later, on April 6, 2011, Cyr again stopped Todman, this time because the car he was driving did not have an inspection sticker, and Cyr recognized him and knew that he was a witness in the investigation of this homicide. A small child was in the car with Todman. Police seized fifteen thirtymilligram oxycodone pills, worth about $450. Cyr again did not arrest Todman, instead summonsing him to court on a charge of possession of a class B substance with intent to distribute. Cyr again did not contact DCF. The judge found that Cyr's decision not to arrest Todman on each of those occasions was a "routine discretionary decision," and that Cyr did not contact DCF because he did not believe the children were in danger.
On July 3, 2012, both of Todman's drug charges were resolved: the 2010 charge was dismissed at the Commonwealth's request, and the 2011 charge was reduced by the Commonwealth to simple possession and continued without a finding for one year. Todman testified in this trial on January 13, 2015.
At the time, this defendant's murder indictment had been dismissed and the case was pending in this court on the Commonwealth's appeal. See n. 5 supra.
Robertson, Cyr, and the trial prosecutor each testified that they knew of no favorable treatment given to Todman in his drug cases in 2012, or at any time, in exchange for his testimony against the defendant at trial in 2015. The trial judge credited their testimony, finding that the defendant "simply has failed to prove that Todman in fact received preferential treatment in exchange for his testimony." The judge further found that the defendant had not shown that trial counsel was ineffective for not having learned of promises given to Todman and used them to impeach him, because there was no evidence of any such promises, and counsel did impeach Todman with the far more powerful evidence that Todman had been promised that he would not be charged with any involvement in this murder, including as an accessory after the fact.
b. Discussion.
A motion for new trial is addressed to the sound discretion of the trial judge. See Commonwealth v. Jacobs, 488 Mass. 597, 600 (2021). Because the judge who ruled on the motion for new trial was also the trial judge, and because he conducted an evidentiary hearing, we extend "special deference" to his denial of the motion. Commonwealth v. Robertson, 88 Mass.App.Ct. 52, 59 n.14 (2015). Contrast Commonwealth v. Pope, 489 Mass. 790, 793-794 (2022) (where motion judge did not preside at trial or conduct evidentiary hearing, court reviewed de novo her denial of motion for new trial). We review the trial judge's decision on the motion for new trial for an abuse of discretion, meaning that we consider whether his "decision resulted from 'a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives.'" Jacobs, supra, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
i. Inventory policy as exculpatory evidence.
Assuming that a warrant was required for the search of the vehicle, and that it would not have been granted but for the discovery of the shell casing in the car, the defendant argues that the State police inventory policy was exculpatory evidence, because it tended to prove that police conducted a warrantless search of the defendant's Focus during the three days before they obtained a warrant, that they did not find the shell casing then, and that, therefore, it must have been planted there by police. He argues that the Commonwealth's failure to disclose the policy and to provide the inventory report that must have been generated after the required inventory search violated Brady, 373 U.S. at 87. In his motion for new trial, to support his claim as to the existence and contents of the policy, the defendant relied on an affidavit of appellate counsel asserting, based on his "review of Massachusetts case law," that the State police have "a policy of conducting an inventory search of all vehicles towed per order of the [State police]."
As the judge noted, the State police inventory policy was not before him; nor is it in the appellate record. From the record before us, it does not appear that the defendant ever moved for discovery of the State police inventory policy, either before trial or in connection with his motion for new trial. To the extent that the defendant contends that an inventory policy was exculpatory such that the Commonwealth was mandated to automatically disclose it, it was his burden to produce an adequate record on that point. See Pope, 489 Mass. at 798. Beyond that, when police impound a vehicle for an investigative purpose, a subsequent inventory search is impermissible. See Commonwealth v. Lek, 99 Mass.App.Ct. 199, 205-206 (2021); Commonwealth v. Baptiste, 65 Mass.App.Ct. 511, 516 (2006). See also Commonwealth v. Habarek, 402 Mass. 105, 109 (1988) (rejecting argument that police should have conducted "immediate inventory search" of car seized as suspected as involved in recent drive-by shooting; "the better policy is to obtain a warrant, when it is practical to do so, even where grounds exist for a warrantless search"). For the purposes of our analysis, we assume that at the time of the towing and impoundment of the defendant's Focus in November 2003 a State police policy required, as appellate counsel averred, "an inventory search of all vehicles towed."
On appeal, the defendant cites to two cases that discuss inventory policies, Commonwealth v. Baptiste, 65 Mass.App.Ct. 511 (2006), and Commonwealth v. Somers, 44 Mass.App.Ct. 920 (1998). Baptiste, supra at 516, quoted a 1998 State police policy stating that an inventory "shall be made" of a vehicle towed "pursuant to a lawful arrest," as applying to a 2002 search; Somers, supra at 923, quoted a 1992 State police policy stating that towed vehicles "are to be" inventoried, as applying to a 1995 search. The defendant does not quote from either of the policies set forth in those cases, or assert that it applied to this 2003 search of the defendant's Focus seized as a result of the BOLO alert. Nor has he provided us with a copy of any State police inventory policy and requested that we take judicial notice of it. Cf. Commonwealth v. Yusuf, 488 Mass. 379, 382 n.3 (2021) (declining defendant's request to take judicial notice of police body-worn camera policy not before motion judge). See Mass. G. Evid. § 202(c) (2021).
Although the defendant's Focus was ultimately towed to the State police barracks, the stop at the gasoline station was initiated by the Taunton police, who secured the Focus prior to the tow. No Taunton police inventory policy was before the judge or in the appellate record.
The defendant is free to seek postconviction discovery of any applicable inventory policy pursuant to Mass. R. Crim. P. 30 (c) (4). On this record, we take no position as to whether any such policy is exculpatory.
Based on evidence before him, including the trial testimony of Trooper Mackin about seeing the shell casing through the window of the defendant's Focus, the judge found that it was "highly speculative" to assume that State police in fact conducted an inventory search, did not find a shell casing, created an inventory report documenting that, failed to disclose the inventory report, and planted a shell casing. On this record, that ruling did not amount to any clear error of judgment or abuse of discretion, see L.L., 470 Mass. at 185 n.27, and we agree that it formed an appropriate basis for denial of the motion.
Based on evidence including Trooper Mackin's testimony, the motion judge found in denying the motion to suppress that "the only search of the vehicle after it was seized was pursuant to a warrant." Of course, the possibility of an inventory search was not raised before the court at that time, and so we do not consider that issue.
For the same reasons, the claim of ineffective assistance based on the failure to elicit evidence of the supposed inventory report, and the claim that a failure to undertake an inventory search might have bolstered the defendant's Bowden defense, also fail. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980) (failure of police to follow procedures permissible ground on which to build defense).
ii. Nondisclosure of claimed inducements to Todman.
The defendant argues that favorable dispositions in Todman's cases show that he received inducements in exchange for his trial testimony, which the Commonwealth failed to disclose in violation of Brady, 373 U.S. at 87. Because the judge who ruled on the motion for new trial also presided at trial, he "was in a 'superior position to assess the credibility of the defendant's claims' of an undisclosed plea deal." Commonwealth v. Upton, 484 Mass. 155, 162 (2020), quoting Commonwealth v. Freeman, 442 Mass. 779, 792 n.14 (2004).
"The Commonwealth has an obligation to disclose any communication that suggests preferential treatment to a key government witness in return for that witness's testimony" (quotation and citation omitted). Commonwealth v. Johnson, 486 Mass. 51, 65 (2020). See Mass. R. Crim. P. 14 (a) (1) (A) (iii), (ix), as amended, 444 Mass. 1501 (2005). In addition, the defendant moved for exculpatory evidence, including any "[p]romises to refrain from prosecuting suspected criminal wrongdoing, or to recommend lenient punishment on a criminal matter." Because the defendant made that specific request, if he established that the Commonwealth did fail to disclose the requested evidence, he would "need only [to] demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure" (citation omitted). Pope, 489 Mass. at 801. Before trial, the Commonwealth disclosed that it had promised, in exchange for Todman's truthful testimony, that it would not prosecute Todman for his involvement in the victim's homicide, including as an accessory after the fact.
To support his theory that the Commonwealth had given additional, undisclosed inducements to Todman in the form of favorable treatment in his cases, the defendant submitted affidavits of his trial and appellate lawyers. Trial counsel averred that lenient dispositions in Todman's prior drug cases suggested that the prosecution "was giving him preferential treatment." Appellate counsel averred that he was "astonished by the leniency" that Todman had received in his District Court drug cases, based on the court papers it was "eminently clear" that the Commonwealth had "ample evidence" to convict Todman of "drug distribution," and counsel had "a good faith belief" that Todman's status as a witness in this case "strongly influenced the leniency from which he benefited." On appeal, the defendant expands on that argument, maintaining that the mere length of Todman's criminal record, despite his prior exonerations, see n.10 supra, rendered him an "incorrigible recidivist" who should have been "disqualified" from having his 2011 drug case continued without a finding, and the only explanation for his lenient treatment was that he had received undisclosed inducements in exchange for his testimony in this case.
The Commonwealth posits that, as to Todman's cases resulting from Cyr's traffic stops, "a likely explanation for [Todman's] favorable dispositions is the Commonwealth's having concerns about its ability to proceed or prevail on motions to suppress." Without reaching the merits of any suppression issues, we note that a judge considering a motion to suppress might be troubled by the repeated traffic stops of Todman arising from police monitoring "high-crime areas" for minor infractions. See Commonwealth v. Long, 485 Mass. 711, 724 (2020).
The trial judge held an evidentiary hearing, at which he heard and credited the testimony of the trial prosecutor adamantly denying that any favorable treatment had been given to Todman in exchange for his testimony against the defendant, other than the promise not to prosecute Todman for involvement in the victim's homicide, including as an accessory after the fact. The judge found: "Although Todman received a lenient disposition of some of his drug charges, there is no credible evidence before this [c]ourt that the outcome of those cases was influenced by the Commonwealth's desire for Todman's cooperation against [the defendant]. Nor is there evidence that Todman harbored some subjective expectation of preferential treatment despite the absence of an actual agreement to provide it." Those findings after an evidentiary hearing by the trial judge based on the testimony of the trial prosecutor, Robertson, and Cyr distinguish this case from Bridges v. Beard, 941 F.Supp.2d 584, 605 (E.D. Pa. 2013), in which the defendant was denied an evidentiary hearing in pursuit of his claim that a key witness was biased in favor of police, as shown by undisclosed police reports documenting his involvement in four shootings and in drug dealing.
Even assuming that Todman's drug charges that were resolved in 2012 would have motivated him to testify at this trial in 2015 in a manner that was favorable to the Commonwealth -- and consistent with his 2008 grand jury testimony -- the defendant has not shown prejudice. The judge concluded that "a much stronger source of motivation" for Todman to testify at this trial was the prospect that he would have faced criminal liability as an accessory after the fact to murder for having vacuumed the defendant's Focus and disposed of one shell casing. The jury was well aware of that motivation and its impact on Todman's credibility, as a result of trial counsel's cross-examination of Todman and the judge's instructions. Cf. Commonwealth v. Jenkins, 458 Mass. 791, 807-808 (2011) (further impeachment of witness by prior convictions would not have amounted to substantial ground of defense, where witness admitted he wiped fingerprints from gun defendant used in murder).
On this record, we conclude that the judge's finding of fact -- that no undisclosed promises, rewards, or inducements were made to Todman in exchange for his testimony at the defendant's trial -- was not clearly erroneous. Thus there was no abuse of discretion in denying the motion for new trial on these grounds. Cf. Upton, 484 Mass. at 165 (trial judge properly denied without evidentiary hearing motion for new trial claiming undisclosed favorable treatment of key witness; "the judge did not abuse his discretion by trusting the prosecutor's unequivocal denials [at sidebar during trial] over the defense counsel's subjectively based thesis").
We reach this decision based solely on the record before us. As discussed below, the defendant may pursue the postconviction discovery that he previously sought.
iii. Ineffective assistance of counsel.
The defendant further argues that his trial counsel was ineffective for not having uncovered evidence of Todman's favorable treatment and used it to impeach him. We assess trial counsel's performance under the Saferian standard: whether it "f[ell] measurably below that which might be expected from an ordinary fallible lawyer," and "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Failure to impeach a witness does not, standing alone, amount to ineffective assistance." Jenkins, 458 Mass. at 805. Because impeaching a witness is usually a strategic decision, "it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion" (citation omitted). Commonwealth v. Smith, 456 Mass. 476, 485 (2010). See Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). See also Commonwealth v. Sifa Lee, 483 Mass. 531, 545 (2019).
In denying the motion for new trial, the judge ruled that trial counsel's performance did not fall below the standard required by the first Saferian prong. Trial counsel's affidavit in support of the motion for new trial averred that before trial he reviewed Todman's criminal record and noted that the dispositions in Todman's prior cases were "lenient" and suggestive of "preferential treatment" by the prosecution, but "neither [he] nor [his] associate pulled the court files" for Todman's prior cases, and he "did not have a strategic basis for opting not to investigate the lenient disposition of Todman's earlier cases." The judge did not credit that affidavit. Instead, the judge ruled that Todman's criminal record did not show "a pattern of dispositions so exceptionally lenient that the average competent criminal defense attorney was required to request the underlying police reports to attempt to uncover preferential treatment." See Commonwealth v. Roberts, 423 Mass. 17, 21 (1996).
Trial counsel died before the evidentiary hearing, and so he did not testify at it. His affidavit did not state whether the defense investigator, a retired New Bedford police detective who testified at trial, "pulled the court files" in Todman's cases.
We need not pause to consider whether under the first Saferian prong trial counsel should have further investigated whether Todman received lenient treatment, because prejudice cannot be shown under the second Saferian prong. In light of the judge's factual finding that the defendant had failed to present any credible evidence that Todman in fact received lenient treatment in exchange for his testimony, it has not been shown that any lapse by trial counsel deprived the defendant of an otherwise available, substantial ground of defense. See Commonwealth v. Dyer, 460 Mass. 728, 752-753 (2011).
c. Denial of postconviction discovery.
The defendant argues that the trial judge erred in denying his motion for postconviction discovery pursuant to Mass. R. Crim. P. 30 (c) (4). We review the denial of a motion for postconviction discovery for an abuse of discretion. See Commonwealth v. Torres, 479 Mass. 641, 647 (2018). See also Commonwealth v. Ortiz, 53 Mass.App.Ct. 168, 177 n.12 (2001). "The purpose of postconviction discovery is to allow a defendant to gather evidence to support an apparently meritorious claim . . . [where] the evidence that can be adduced to support the claim is unknown to the court." Commonwealth v. Vines, 94 Mass.App.Ct. 690, 692 (2019), quoting Commonwealth v. Daniels, 445 Mass. 392, 406 (2005).
As mentioned above, in pursuit of his theory that the Commonwealth had made undisclosed promises to Todman, the defendant sought postconviction discovery of documents in the Commonwealth's possession, including any tending to show that law enforcement suspected Todman of illicit activities between the date of the murder and the end of trial, and any documents "regarding law enforcement's observations, interactions and/or contact" with Todman during that period. The judge scheduled a conference to discuss whether "the defendant's discovery motion represents a live issue requiring a judicial decision." The docket reflects that the conference was held on April 12, 2018, but the record before us contains no transcript of it. Nor does the record before us contain any ruling on the defendant's discovery motion. Some seventeen months after that conference, the judge held a two-day evidentiary hearing on the motion for new trial, during which there was no mention of the discovery motion. In ruling on the motion for new trial, the judge noted that the prosecution's files in Todman's cases "had been destroyed in the ordinary course of business." The judge also inferred that the prosecution's files in Todman's cases "would not have yielded additional helpful information; it hardly seems likely, for example, that they would contain some sort of notation that Todman was an informant and therefore was afforded lenient treatment." By conducting the evidentiary hearing and then ruling on the motion for new trial, the judge implicitly denied the motion for further postconviction discovery. See Commonwealth v. Dubois, 451 Mass. 20, 29 (2008).
As appellant, it was the defendant's obligation to obtain all transcripts "relevant to the appeal." Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1611 (2019). Absent that transcript, we cannot determine if at that hearing some resolution of the defendant's discovery motion was reached.
The record before us does not contain any factual support for that finding. The Commonwealth's memoranda opposing the motion for new trial are not in the record before us.
Given the judge's explicit findings that there was no credible evidence that Todman had been given lenient treatment in his own cases in exchange for his trial testimony, and based on the incomplete record before us, we cannot conclude that the judge abused his discretion in denying the motion for postconviction discovery. Appellate counsel's affidavit averring that he was "astonished by the leniency" Todman had received may not, by itself, amount to sufficient evidence that Todman received leniency in exchange for his testimony, see Upton, 484 Mass. at 164. Even so, we do think that the defendant was entitled on his postconviction discovery motion to discovery of any documents that may evidence favorable treatment of Todman, to the extent that they exist and are in the possession, custody, or control of the prosecution. See Mass. R. Crim. P. 14 (a) (1) (A) (iii) &(ix), 14 (a) (4).
The District Court papers documenting Todman's pleas bear the signatures of Todman's counsel and the prosecutor who negotiated the dispositions of Todman's 2010 and 2011 cases arising from Cyr's traffic stops. "Defense counsel aiming to uncover a secret plea agreement should, at a minimum, attempt to obtain information from the key witness's attorney and the prosecutor who supposedly negotiated the deal." Upton, 484 Mass. at 163. See also Johnson, 486 Mass. at 66 (where key witness had outstanding warrant at time of trial testimony, was arrested five days after trial, and received continuance without finding, existence of undisclosed inducement not shown absent affidavit from witness or plea counsel). Contrast Commonwealth v. Smith, 90 Mass.App.Ct. 261, 267-268 (2016) (where police and two prosecutors' offices "were communicating with each other" regarding key witness and his involvement in their investigations, defendant was entitled to hearing on prosecutor's knowledge of and failure to disclose promises, rewards or inducements given in other cases).
Thus, although we find no abuse of discretion on the record before us, the defendant may, if he chooses, file a motion to compel the Commonwealth to provide the postconviction discovery he sought previously, and any additional discovery to which he is entitled under rule 30 (c) (4). See Dubois, 451 Mass. at 30.
Judgment affirmed.
Order entered February 10, 2021, denying motion for new trial, supplemental motion for new trial, and motion for postconviction discovery, affirmed.
The panelists are listed in order of seniority.