Opinion
18-P-769
05-24-2019
COMMONWEALTH v. RAFAEL TORRES.
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
Rafael Torres appeals from the order denying his motion for a new trial on the basis of newly discovered evidence. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). This was the defendant's third posttrial challenge to his conviction of trafficking in 200 grams or more of cocaine. G. L. c. 94C, § 32E (b) (4). After a nonevidentiary hearing on the motion, the motion judge, who was also the trial judge, characterized the evidence as newly discovered, but found that the defendant did not make an adequate showing of a substantial issue, and denied the motion. We affirm.
Background. The defendant's claim of newly discovered evidence was based on newspaper articles reporting that the Lowell Police Department's Special Investigation Section (SIS), and specifically Detective Thomas Lafferty, had used confidential informants later deemed to be unreliable by other law enforcement agencies. According to the news articles, Lafferty was investigated after one of his confidential informants told the State Police, in October 2012, that another of Lafferty's informants (who had also informed for other SIS detectives) was planting drugs on suspects. The defendant also relied on newspaper reports summarizing an independent investigation commissioned by the Lowell Police Department. The defendant claimed the investigator found that the SIS was unsupervised, that informants were unsupervised and that one of Lafferty's informants believed he could plant evidence without consequences. The defendant claimed that had the investigator's report been available to him at trial, he would have sought additional discovery regarding the cooperating witness in his case, and the informant procedures of the Lowell Police Department. The judge credited the evidence as newly discovered, and assumed the existence of the evidence as alleged. The judge concluded that the defendant had failed to make an adequate showing of a substantial issue, and denied the motion.
The defendant did not request an evidentiary hearing and has not requested one on appeal.
The defendant neither requested nor reviewed the report in support of his motion for a new trial.
The judge took "judicial notice" of the facts contained in the newspaper reports, and the news accounts of the investigator's reports. He also reviewed a decision on a motion for summary judgment in a related civil rights action in the United States District Court for the District of Massachusetts. Representations made by the defendant regarding media reports of an investigation are not the "kind[] of facts that may be judicially noticed," Mass. G. Evid. § 201(b) (2019), and are not a proper subject of judicial notice. See Commonwealth v. Hilaire, 92 Mass. App. Ct. 784, 789 n.7 (2018). Nor are disputed facts referred to in court pleadings a proper subject of judicial notice. See Commonwealth v. O'Brien, 423 Mass. 841, 848-849 (1996). We take what appears to be a short-hand reference to judicial notice to mean that, for the purpose of the motion, the judge assumed all of the representations made by the defendant to be true.
Discussion. "We only disturb the denial of a motion for a new trial where there has been a 'significant error of law or other abuse of discretion.'" Commonwealth v. Hernandez, 481 Mass. 189, 195 (2019), quoting Commonwealth v. Grace, 379 Mass. 303, 307 (1986). "A defendant seeking a new trial on the ground of newly discovered evidence bears the burden of demonstrating that (1) the evidence 'is in fact newly discovered'; (2) the newly discovered evidence is 'credible and material'; and (3) the newly discovered evidence 'casts real doubt on the justice of the conviction' (quotation and citation omitted)." Commonwealth v. Pina, 481 Mass. 413, 435 (2019). If, considering "the seriousness of the issue itself and the adequacy of the showing that has been made with respect to that issue," the judge determines that "no substantial issue is raised by the motion or affidavits," then "the judge may rule on the motion 'on the basis of the facts alleged in the affidavits without further hearing.'" Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), quoting Mass. R. Crim. P. 30 (c) (3).
The newspaper articles relied on by the defendant -- and assumed to be true by the judge for the purpose of ruling on the defendant's motion -- reported that Lafferty and the SIS failed to supervise confidential informants. There was no confidential informant involved in the defendant's case, nor did the Lowell Police Department have any role in handling the cooperating witness. After a joint investigation by the New Hampshire and Vermont Drug Task Forces recovered approximately three ounces of cocaine from the home of Jeremy Herrell in New Hampshire, Herrell cooperated with the New Hampshire Drug Task Force, and named the defendant as his supplier. In cooperation with the New Hampshire police, Herrell arranged a purchase of eight ounces of cocaine from the defendant in Lowell on October 1, 2007. That day, Detective Felix Figueroa of the SIS acted on information supplied by the New Hampshire police and applied for a warrant to search the residence where the transaction was planned. The Lowell Police supplied five of the ten officers involved in the resulting search, with Figueroa acting as the lead officer. The New Hampshire Drug Task Force and Drug Enforcement Agency supplied five additional officers. Lowell Police Captain Jonathan Webb and Lafferty searched the master bedroom of the two-bedroom apartment. Captain Webb found four bags of cocaine in the pocket of a shirt in the closet. Lafferty found a shoe box containing two bags of cocaine. No confidential informant was involved in the case, and no confidential informant had the opportunity to plant drugs on the defendant. We cannot say that the judge abused his discretion in denying a motion brought on this basis.
The defendant's affidavit in support of his motion stated that "I know for a fact [Lafferty] planted [cocaine] because I did not have access to cocaine and I didn't own or have any cocaine." This claim was rejected by the judge as unfounded, and was disavowed by the defense counsel on appeal.
There was, to be sure, ample evidence at trial of sloppy investigative techniques and the failure to follow police protocol. The defendant extensively cross-examined Lafferty and other officers on their various failures to follow policies and procedures with respect to the recovery, handling, and preservation of evidence. As the judge acknowledged in detailed written findings, there were "several unfortunate happenings in this investigation." However, the defendant did not make a more generalized attack on the department's investigative practices a basis for his motion for new trial. He neither requested nor conducted discovery, and did not ask for or provide a copy of the independent investigator's report. Compare Commonwealth v. Daniels, 445 Mass. 392, 405-407 (2005). See Mass. R. Crim. P. 30 (c) (3)-(4). Instead, he asked the judge to rely on representations regarding confidential informants that failed to demonstrate a nexus between the police misconduct alleged (misconduct by unidentified informants) and his own case, which involved an identified cooperating witness. Compare Commonwealth v. Scott, 467 Mass. 336, 351-352 (2014); Daniels, supra at 407. On the basis of the limited record before him, the judge did not abuse his discretion when he concluded that "the motion and supporting materials did not make an adequate showing." Goodreau, 442 Mass. at 355.
The defendant vigorously argued those points in closing and requested and received the Bowden instruction. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).
Order denying third motion for new trial affirmed.
By the Court (Sullivan, Massing & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 24, 2019.