Commonwealth v. Bonnett , 472 Mass. 827 ( 2015 )

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SJC-11496
COMMONWEALTH vs. DARKENS BONNETT.
Essex. May 8, 2015. - September 24, 2015.
Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.
Homicide. Constitutional Law, Assistance of counsel. Practice,
Criminal, Assistance of counsel, Opening statement,
Presence of defendant, Identification of defendant in
courtroom, Failure to object, Argument by counsel, Argument
by prosecutor, Disclosure of identity of informer,
Disclosure of evidence in possession of Federal
authorities, Capital case. Evidence, Cross-examination,
Identification, Videotape, Consciousness of guilt,
Disclosure of evidence, Informer, Relevancy and
materiality. Witness, Cross-examination, Privilege.
Identification.
Indictment found and returned in the Superior Court
Department on September 15, 2010.
The case was tried before Howard J. Whitehead, J., and a
motion for a new trial, filed on January 27, 2014, was heard by
him.
Jeanne M. Kempthorne for the defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
2
LENK, J. The victim, Vincent Gaskins, was shot and killed
in a parking lot across the street from a nightclub in Lynn.
The shooting came on the heels of an argument between the victim
and Brandon Payne, a friend of the defendant. A Superior Court
jury convicted the defendant of murder in the first degree on a
theory of deliberate premeditation. The trial judge
subsequently denied the defendant's motion for a new trial. On
appeal from his conviction and from the denial of his motion for
a new trial, the defendant claims that (a) his trial counsel
rendered constitutionally ineffective assistance; and (b) on the
eve of trial, the judge erred by denying the defendant's motion
for disclosure of the identity of an informant who, according to
a report prepared by the Federal Bureau of Investigation (FBI),
had heard that Payne, not the defendant, had shot the victim.
We reject the defendant's ineffective assistance of counsel
claim, but remand for further proceedings in connection with his
motion for disclosure of the informant's identity. We do not
now see cause to exercise our authority under G. L. c. 278,
§ 33E, to reduce the verdict of murder in the first degree or to
order a new trial.
1. Background. The evidence at trial included the
following. Soon after 1 A.M. on a night in November, 2009,
police found the victim lying on the ground in a parking lot
across the street from a nightclub, with a gunshot wound in the
3
area of his right ear. The victim was taken to the hospital,
where he died two days later.
A .22 caliber Beretta firearm was located at the crime
scene. The firearm did not have a magazine in it. Without a
magazine, it could have been loaded manually with one cartridge.
A cartridge casing that had been discharged from the gun was
found by the sidewalk of the parking lot. A spent projectile
recovered from the victim's body was consistent with that of a
.22 caliber projectile.
The events of the night of the shooting were described by
Sheffery Johnson, the victim's cousin. Johnson testified that,
on the day of the shooting, she picked up Payne in her truck.
Johnson and Payne drove to a parking lot across the street from
the nightclub. After they sat in the truck for some time,
Johnson saw the victim leaving the nightclub. At about the same
time, she saw a "dark skinned guy," wearing a gray sweat suit,
dancing outside the nightclub. Johnson identified that man in
court as the defendant. According to Johnson, Payne had
introduced her to the defendant, to whom Payne referred as "his
boy Black," "[a] couple days before" the shooting.
The victim and his girl friend walked over to Johnson's
truck. Payne and the victim had been involved in "some tension"
several months before. Payne got out of the truck and walked
over to the victim. Then Payne, the victim, and the victim's
4
girl friend stood behind the truck and conversed. Johnson, who
noticed that the victim was "getting upset," walked over and
joined the group. Johnson heard Payne and the victim arguing.
The victim said, "See, that's why I don't want you fucking with
my sister" -- apparently referring to Johnson -- because you got
a smart-ass mouth." Payne, for his part, asked the victim, "Why
you keep throwing your hands in your pocket?" Johnson "s[aw] a
shadow pass [her]," but did not "focus[] on who it was."
Eventually, the victim suggested that he and Payne "go
around the corner," "shoot the ones," and "dap up." This meant,
according to Johnson, that the two men would have a fistfight
and, after one of them had won, would "shake hands, and that was
going to be it." Johnson demurred, announcing that "[t]here's
no fighting [her] cousin," grabbing Payne, and swinging him
around back toward the truck.
As soon as Johnson's back was turned, she heard a "pop"
from the direction of where the victim had been standing. When
she turned around, Johnson saw the defendant standing over the
victim's body, trying to tuck a gun into his pants,1 and then
running off.2
1
In her grand jury testimony, with which she was impeached
on cross-examination, Sheffery Johnson stated that she saw the
defendant put "something" in his pants, and that she could not
see that object. A police officer testified that, in an
interview some hours after the shooting, Johnson stated
repeatedly that she had not seen a gun.
5
Although, in court, Johnson identified the defendant as the
man who had been dancing outside the club and who was standing
over the victim's body, defense counsel's cross-examination, as
well as the testimony of a police officer called by the defense,
indicated that earlier she had thought otherwise. In December,
2009, Johnson was shown a photographic array. She picked out an
individual who was not the defendant as a person involved with
the shooting. Johnson selected the defendant's photograph as
"familiar to her," but said that she "did not think he was there
that night." She also told a police officer that "she did not
get a good look [at] the face of the person after the shooting."3
Johnson's trial testimony was corroborated, in part, by a
confession reportedly made by the defendant to another witness,
Joseph Burns. Burns was in Federal prison at the time of trial,
and he acknowledged that he was cooperating with the authorities
in the hope of earning a lighter sentence. According to Burns,
he and the defendant had done "business" together: Burns had
sold the defendant guns, and had bought "crack" cocaine from
him. The guns were .25 and 9 millimeter and one .22 caliber.
Burns stated that, several months after the shooting, in early
2
Neither the victim's girl friend, who appeared before the
grand jury, nor Brandon Payne was called to testify at trial.
3
The officer testified that Johnson had not known the name
of the shooter. He could not recall if she had known the
shooter's nickname.
6
2010, he met the defendant in Lynn, to which the defendant
recently had returned from New Jersey. The defendant told Burns
that he and the victim "had words after the club," that the
defendant "told [the victim] [to] take that around the corner,"
and that the defendant then "shot [the victim] in the face."
The gun "didn't have a clip to it so there was only one round in
it, in the chamber." On the day after that conversation, the
defendant asked Burns to take him to the scene, to see if the
firearm was still there. Police officers testified that the
press were never informed that the gun found at the scene did
not have a magazine in it, or that, in a confrontation involving
the victim, words were exchanged about "going around the
corner."4
Forensic evidence tied the defendant to the crime. Two
latent prints were identified on the weapon found at the scene.
One, a palm print on the back strap of the gun, was of
sufficient quality and quantity to be analyzed. A police crime-
scene analyst testified that, in his opinion, the palm print on
4
In corroboration of Joseph Burns's testimony, the
Commonwealth offered testimony from Thomas Arrington, the
defendant's roommate at the time of the shooting. Arrington
testified that he saw the defendant at various times with
several guns, none of which was a .22 caliber. See note 16,
infra. The roommate asked the defendant if he was involved in
the shooting, and the defendant shrugged.
7
the gun was the defendant's.5 Biological matter detected on the
gun contained a mixture of deoxyribonucleic acid (DNA) from at
least two individuals. The defendant's DNA matched the major
male profile found in that mixture. The probability that the
DNA profile of a randomly selected African-American individual
would match the major profile was one in 2.1 trillion.6 Payne
was found to be a potential contributor to the mixture. The
probability that a randomly selected African-American individual
would be a potential contributor to the mixture was one in
eight. The victim was excluded as a contributor to the mixture.7
5
The analyst spoke of "individualizing" prints based on
their "unique" characteristics, stating twice that "[n]o two
individuals have ever been found to have the same unique
sequence of" print characteristics. The defendant does not
contend that this testimony ran afoul of our admonition that
"opinions expressing absolute certainty about, or the
infallibility of, an 'individualization' of a print should be
avoided." See Commonwealth v. Gambora, 457 Mass. 715, 729 n.22
(2010). Regardless of whether the analyst's testimony exceeded
permissible bounds, a question we need not decide, it did not in
any event give rise to a substantial likelihood of a miscarriage
of justice. The defendant did not deny that he had touched the
gun, a fact supported also by the deoxyribonucleic acid (DNA)
evidence. See id. at 728-729.
6
The record reveals that the defendant is African-American,
and it suggests that Payne may be as well.
7
The officer who had collected biological material from the
gun and from the defendant testified at trial, as did the
analyst who had generated the DNA profiles of the defendant, the
victim, and Payne. The analyst who had generated the DNA
profile of the material taken from the gun, Kathleen Gould, was
unavailable to testify. Testimony was offered by a chemist who
had reviewed Gould's work, Cailin Drugan. As required, Drugan's
testimony was devoted to Drugan's own analysis, not to the
8
Finally, five video recordings were presented at trial.
Two were security video recordings filmed at establishments
located near the crime scene. The recordings provided little
information about the circumstances of the shooting, primarily
because of the poor quality of one recording and the unhelpful
vantage point of the other. The remaining recordings showed
portions of police interviews with the defendant, with Johnson,
and with Burns.8 The interview with the defendant revealed that
he had a distinctive tattoo that Payne had as well. The
interview also showed the defendant denying, in the face of
repeated accusations by police, that he had been at the club or
the parking lot on the night of the shooting.
The jury were charged on the fourth day of testimony, and
returned a guilty verdict on the same day. Represented by new
counsel, the defendant filed a motion for a new trial, asserting
that his trial counsel had provided constitutionally ineffective
assistance. We remanded the motion to the Superior Court.
After an evidentiary hearing, the motion was denied by the trial
judge.
"facts or data underlying [Drugan's] opinion." See Commonwealth
v. Tassone, 468 Mass. 391, 399 (2014), and cases cited.
8
The recording of Burns's interview was played during his
cross-examination but was not made an exhibit. The recording of
Johnson's interview was not shown during trial, but it was
marked as an exhibit, and the jury were informed that they could
watch an excerpt of that exhibit upon request. The record
suggests that no such request was made.
9
2. Ineffective assistance of counsel. The defendant
points to an array of ways in which, in his view, the assistance
provided by his trial counsel was ineffective. The standard
that governs ineffective assistance claims is two-pronged.
First, a defendant asserting such a claim must demonstrate
"serious incompetency, inefficiency, or inattention of
counsel -- behavior of counsel falling measurably below that
which might be expected from an ordinary fallible lawyer."
Commonwealth v. Boria, 460 Mass. 249, 252 (2011), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We have
emphasized that "[t]rial tactics which may appear questionable
from the vantage point of hindsight, do not amount to
ineffective assistance unless 'manifestly unreasonable' when
undertaken." Commonwealth v. Johnson, 435 Mass. 113, 133-134
(2001), quoting Commonwealth v. Haley, 413 Mass. 770, 777-778
(1992). A tactic that was reasonable in the circumstances,
given the information available at the time, will not support an
ineffective assistance claim "[r]egardless whether counsel
intended the strategy." Commonwealth v. Jenkins, 458 Mass. 791,
806 (2011).
The second prong of the ineffective assistance of counsel
standard is, ordinarily, that counsel's inadequate performance
"likely deprived the defendant of an otherwise available,
substantial ground of defence." Commonwealth v. Saferian, supra10
at 96. In an appeal from a conviction of murder in the first
degree, we apply the test "more favorable to a defendant" of
whether there is a substantial likelihood that a miscarriage of
justice occurred. See Commonwealth v. Marrero, 459 Mass. 235,
244 (2011), citing Commonwealth v. Williams, 453 Mass. 203, 204–
205 (2009). Under this test, we examine "whether there was an
error in the course of the trial (by defense counsel, the
prosecutor, or the judge) and, if there was, whether that error
was likely to have influenced the jury's conclusion."
Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469
Mass. 447 (2014).
The defendant's ineffective assistance claim was first
presented on a motion for a new trial. We review the denial of
such a motion for "a significant error of law or other abuse of
discretion," Commonwealth v. Forte, 469 Mass. 469, 488 (2014),
quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986),
granting "special deference" to the rulings of a motion judge
who, like the judge here, also presided at trial. See
Commonwealth v. Forte, supra, quoting Commonwealth v. Grace,
supra. Nevertheless, on appeal from a conviction of murder in
the first degree, the defendant "has the benefit of our
independent review, pursuant to G. L. c. 278, § 33E . . . of the
11
entire record." Commonwealth v. Carter, 423 Mass. 506, 513
(1996).
Against the backdrop of these principles, we examine the
specific missteps that the defendant attributes to his counsel.
a. Concession that the defendant was at the scene. The
defendant's first argument is that his attorney erred by
conceding that the defendant was present at the scene of the
crime. Counsel made this concession in passing in his opening
statement, stating that, after the shot was fired, "Everyone
leaves. They walk away . . . . Everyone, including Sheffery
Johnson and Brandon [Payne] and [the defendant]."
This tactic was not manifestly unreasonable. "When the
evidence implicating the defendant is strong, and a concession
does not undercut viable defenses, a tactical concession . . .
is securely within the realm of effective representation."
Commonwealth v. Evelyn, 470 Mass. 765, 771 (2015), quoting
Commonwealth v. Arriaga, 438 Mass. 556, 581–582 (2003). This
kind of concession commonly is "part of a litigation strategy to
boost [the defendant's] credibility with th[e] jury."
Commonwealth v. Ramsey, 466 Mass. 489, 496 n.8 (2013). The
evidence tying the defendant to the crime, including the
fingerprint evidence, the DNA evidence, and the detailed
confession that the defendant reportedly made to Burns, was
strong. It was not unreasonable for his attorney to focus on
12
the argument that the defendant was not the shooter, and to
enhance the credibility of that defense by conceding a fact that
did not contradict it.
b. Johnson's testimony. Next, the defendant argues that
his attorney erred in connection with two aspects of the
testimony provided by Johnson.
First, on direct examination, Johnson was asked whether
Payne (her date, and the defendant's friend) had gone anywhere
after the shooting, to which she responded, "I just remember
saying, 'Who the fuck was that that just shot my cousin?' And I
was like, 'Your fucking boy just killed my cousin? Who the fuck
was that?' And he said, 'Black. That was Black.'" Defense
counsel did not move to have the out-of-court statements of
Johnson and Payne stricken.9
We cannot say that counsel's failure to challenge Johnson's
own out-of-court questions to Payne was manifestly unreasonable.
Given that Johnson was the only percipient witness to testify,
the prospects of a successful defense depended, to some degree,
on undermining her identification of the defendant (which had
occurred soon before the exchange about which the defendant
complains). To this end, defense counsel's cross-examination of
9
In closing argument, the prosecutor referred to Payne's
out-of-court statement, saying, "Brandon [Payne] who told
Sheffery [Johnson] he was the one who did it, he was the one who
shot him, calls him Black."
13
Johnson, and his closing argument, stressed that Johnson had not
seen the victim being shot.10 As the judge explained in his
written decision on the defendant's motion, this line of defense
stood to gain also from Johnson's testimony on direct
examination that, immediately after the shooting, Johnson asked
questions suggesting that she did not know who the shooter was.11
Payne's reported response, "That was Black," did not serve
the defense's objectives in the same fashion. But we agree with
the judge that counsel's failure to request that this remark be
stricken did not create a substantial likelihood of a
miscarriage of justice. For at least two reasons, Payne's
reported words were unlikely to carry significant weight with
the jury. First, as the judge noted, Payne himself was present
at the scene -- indeed, it was he, not the defendant, who had
been quarreling with the victim. Payne thus had a palpable
incentive to shift attention away from himself. In addition,
given Johnson's fervent belief, by the time of the trial, that
10
Counsel also reminded the jury, in his argument, that
Johnson had failed to identify the defendant at a photographic
array conducted shortly after the shooting.
11
Although the judge stated otherwise, the record indicates
that defense counsel did not provide an explanation for why he
left Johnson's out-of-court statements unchallenged.
Nevertheless, the reasonableness of counsel's course of action
undermines the ineffective assistance claim regardless of
whether counsel consciously articulated the reasons for his
actions. See Commonwealth v. Jenkins, 458 Mass. 791, 806
(2011).
14
the defendant was the shooter, her stated recollection of
Payne's words was likely to be accorded limited credence. We
are persuaded that, in the context of the physical and
testimonial evidence as a whole, Johnson's impassioned
recounting of Payne's answer to her questions did not affect the
result.
The second piece of Johnson's testimony with which the
defendant takes issue occurred on cross-examination. In the
course of his questioning, defense counsel showed Johnson an
excerpt from one of the security camera recordings. While
counsel was locating the relevant portion of the recording,
Johnson exclaimed:
"You can see him clearly come from the side of the
building and blow my cousin's fucking brains out. Are you
stupid? You clearly can see a hand come out and he blew my
fucking cousin's brains out. Period. He did, him, Black,
Barnett [sic], or whatever the hell his name is . . . . He
killed my fucking cousin."
The judge told Johnson repeatedly to "[h]old on," instructing
her to "wait until there's a question." Defense counsel did not
move to strike Johnson's outburst.
We discern neither ineffective representation nor prejudice
to the defense. Johnson was both the victim's cousin and
herself the physically impaired survivor of a different shooting
that occurred sometime before trial (a fact known to counsel,
although not disclosed to the jury). Defense counsel could
15
properly have expected that Johnson would be a volatile witness.
As the motion judge explained, counsel's questioning elicited
"loud and hyper emotional" testimony from Johnson that
"detracted from her credibility." Although this testimony
included Johnson's exclamation that the video recording showed
the defendant to be the shooter, the jury could see otherwise
with their own eyes.12 See Commonwealth v. Womack, 457 Mass.
268, 275 (2010). Consequently, Johnson's emotional and plainly
incorrect description of the recording provided a benefit to the
defense, by diminishing the degree to which her testimony could
be perceived as accurate and reliable.
c. Johnson's in-court identification. The defendant's
next contention is that his counsel should have moved in limine
to prevent Johnson from identifying the defendant in court as
the man she had seen dancing outside the nightclub and standing
over the victim's body. As previously mentioned, when Johnson
was shown a photographic array soon after the shooting, she
selected an individual who was not the defendant as a person
involved with the shooting, and stated that she did not think
that the defendant's photograph depicted a man present at the
scene.
12
We make this observation based on our own review of the
recording. The judge, of course, saw the recording at trial.
16
In Commonwealth v. Collins, 470 Mass. 255, 262 (2014)
(Collins), expanding on the holding in Commonwealth v. Crayton,
470 Mass. 228, 241-242 (2014) (Crayton), we announced that, in
future cases, in-court identifications generally will not be
permitted where a witness participated in a pretrial
identification procedure that "produced something less than an
unequivocal positive identification." An attorney is "not
ineffective for failing to make an objection that would have
been futile under the prevailing case law," however. Crayton,
supra at 261, citing Commonwealth v. Conceicao, 388 Mass. 255,
264 (1983). We therefore must evaluate defense counsel's
failure to challenge Johnson's in-court identification testimony
under the law as it was at the time of the trial.
Before Collins and Crayton, an in-court identification was
excluded primarily if, "in the totality of the circumstances, it
was 'tainted by an out-of-court confrontation . . . that [was]
so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.'"
Commonwealth v. Bastaldo, 472 Mass. 16, 31 (2015), quoting
Crayton, 470 Mass. at 238 (omission and alteration in original).
In all but unusual cases, an impermissibly suggestive out-of-
court confrontation would render an in-court identification
inadmissible only if the confrontation had been "arranged by the
Commonwealth." See Commonwealth v. Alcide, 472 Mass. 150, 165
17
(2015), quoting Commonwealth v. Bol Choeurn, 446 Mass. 510, 520
(2006). "An in-court identification was admissible in the
absence of any prior out-of-court confrontation." Commonwealth
v. Bastaldo, supra, citing Crayton, supra.
The defendant does not suggest that Johnson's
identification was tainted by any suggestive out-of-court
confrontation, whether orchestrated by the Commonwealth or
otherwise. Contrast Commonwealth v. Alcide, supra at 153-154
(after failing to make unequivocal identifications of defendant
in photographic arrays, two witnesses encountered defendant's
photograph in newspaper articles; one witness also reported
being shown photograph of defendant at district attorney's
office). Accordingly, defense counsel's failure to challenge
Johnson's identification testimony did not amount to ineffective
assistance.
d. Videotaped police interview. As noted, the jury were
shown a video recording of a police interview with the
defendant. Portions of the recording were redacted. The
defendant contends that his counsel was ineffective for failing
to object to two aspects of the redacted recording.
First, the defendant points out that the recording included
out-of-court statements made by the officers. The relevant
portion of the interview was as follows:
18
Q.: "November 22, 2009, there was an incident at
Soriano's. You know what Soriano's is, right?"
A.: "It's like a club."
Q.: "I know you were there . . . out in the parking
lot."
A.: "No."
Q.: "There's a video with you in it."
A.: "Yeah?"
Q.: "Right? I know you were there."
A.: "I'm gonna see the video?"
Q.: "I can show you the video. I don't have it with
me now . . . . But I know you were there."
A.: "I wouldn't be able to vouch for that."
Q.: "People have told me you were there. I got you
on a video there. A kid, [the victim], . . . was killed
there . . . ."
A.: "You think I had something to do with that too?"
Q.: "No, man. Were you there? 'Cause it doesn't
look good if you tell me you weren't there and I can
clearly see it on video, wearing a grey sweatsuit, right?
You own a grey sweatsuit, right? . . ."
A.: "Nah . . . . That ain't got nothing to do with
me, bro."
At the hearing on the defendant's motion for a new trial,
his trial attorney explained that he chose to cooperate with the
admission of the recorded interview as "effectively a way of
[the defendant] getting up on the stand and being able to
testify he wasn't there without him taking the stand." This
19
line of reasoning does often support the strategic judgment that
the introduction of out-of-court denials of guilt will benefit
the defense. See Commonwealth v. Barbosa, 457 Mass. 773, 799
(2010), cert. denied, 131 S. Ct. 2441 (2011); id. at 799-800
quoting Commonwealth v. Diaz, 453 Mass. 266, 274 (2009),
overruled on another ground by Commonwealth v. Womack, supra;
Commonwealth v. Merola, 405 Mass. 529, 548 (1989). Here,
however, the defendant was shown on the recording denying that
he had been at the club on the night of the shooting -- a
position that defense counsel had conceded in his opening was
not the case. The recorded interview consequently was likely to
harm the defense, by suggesting that the defendant had been
untruthful upon his arrest.
For related reasons, however, the recording would have been
admissible over objection, if one had been made. It is true
that "if a defendant is charged with a crime and unequivocally
denies it, that denial is not admissible in evidence."
Commonwealth v. Morse, 468 Mass. 360, 375 n.20 (2014), quoting
Commonwealth v. Diaz, supra.13 The defendant's denials here,
13
"The rationale for the rule is that '[e]xtrajudicial
accusatory statements made in the presence of a defendant, which
he has unequivocally denied, are [inadmissible] hearsay.'"
Commonwealth v. Morse, 468 Mass. 360, 375 n.20 (2014), quoting
Commonwealth v. Womack, 457 Mass. 268, 272 (2010). Such
accusatory statements shed their hearsay character when they are
offered not for the truth of the matters asserted, but to
provide context for admissible statements of the defendant. See
20
however, were not of the requisite unequivocal character that
would render them inadmissible. In particular, when told by
police that a video recording showed him at the club, the
defendant first asked "Yeah?" and then wondered aloud whether he
would be permitted to see that video recording. And although he
had initially responded in the negative when told that police
knew he had been in the parking lot where the victim was shot,
the defendant subsequently said only that he "wouldn't be able
to vouch for that." These were "equivocal response[s] that
could be construed as self-incriminating and therefore
admissible," Commonwealth v. Lewis, 465 Mass. 119, 127 (2013);
the true meaning of these responses "was for counsel to argue
and the jury to determine." Id. Furthermore, to the extent
Commonwealth v. Pytou Heang, 458 Mass. 827, 855 (2011); United
States v. Walter, 434 F.3d 30, 33-35 (1st Cir.), cert. denied,
547 U.S. 1999 (2006). Although the defendant does not so argue,
it may have been appropriate for his attorney to request an
instruction limiting the jury's consideration of the officers'
recorded statements to this nonhearsay purpose. See
Commonwealth v. Carrion, 407 Mass. 263, 275 (1990); Mass.
G. Evid. § 105 (2015). Even assuming that such an instruction
should have been requested and given, we discern no substantial
likelihood of a miscarriage of justice. The officers'
statements played an insubstantial role in the evidentiary
picture presented at trial. In particular, the jury would have
seen for themselves that the defendant was not, as the officers
stated, identifiable on a video recording of the crime scene.
See Commonwealth v. Womack, supra at 275. There was no
suggestion at trial that the officers' mention of "people" who
reported seeing the defendant at the scene referred to
individuals other than the trial witnesses. And the statement
that "it doesn't look good" if the defendant were to say falsely
that he was not at the scene was a commonsense observation, not
a fact otherwise unknown to the jury.
21
that the defendant denied being at the nightclub on the night of
the shooting, the evidence suggested, as defense counsel
conceded, that that denial was a "false statement," admissible
"to show consciousness of guilt." See Commonwealth v. Lavalley,
410 Mass. 641, 649 (1991). In sum, defense counsel's failure to
challenge the admission of the recording made no difference.
The defendant's second complaint about the recorded
interview is that the recording showed him wearing handcuffs.
Defense counsel did not overlook that issue at trial. Before
the Commonwealth introduced the video, counsel informed the
judge that his "[n]umber one concern" was that "the video has
[the defendant] being interviewed while he has handcuffs on his
hands." Counsel argued that "[it] would be prejudicial for the
jury to see that." The judge disagreed, reasoning essentially
that the probative value of the recording was not "substantially
outweighed by the danger of unfair prejudice or the risk of
misleading the jury." See Commonwealth v. Scott, 470 Mass. 320,
330 (2014), quoting Commonwealth v. Pytou Heang, 458 Mass. 827,
851–852 (2011).
Although defense counsel arguably failed to preserve an
objection to that ruling, this omission worked no harm on the
defense. "The weighing of the prejudicial effect and probative
value of evidence is within the sound discretion of the trial
judge, the exercise of which we will not overturn unless we find
22
palpable error." Commonwealth v. Bonds, 445 Mass. 821, 831
(2006). No such palpable error occurred here. As the judge
noted, the admission of a recording showing the defendant to
have been handcuffed at the police station, soon after being
arrested, does not signal to the jury that the judge has
determined the defendant to be dangerous.14 Such a recording is
thus less prejudicial than an order that the defendant be
handcuffed in the court room. On the other side of the scale,
the recorded interview of the defendant was probative both of
the defendant's ties to Payne and of a consciousness of guilt.
A preserved objection to the recording thus would have been
fruitless.
e. Gun and drug sales. The defendant argues that his
attorney should have objected to Burns's testimony that Burns
had sold the defendant guns, and that the defendant had sold
Burns drugs. At least one question posed by defense counsel
also referred to these transactions. Again, we discern neither
14
The judge did not address a related issue posed by the
recording, namely, that portions of it revealed, at least to an
attentive viewer, that the defendant had been arrested and
handcuffed in connection with a different, subsequent
investigation. It is possible that this issue could have been
averted if defense counsel had requested additional redactions
to the recording. In any event, we are confident that
presentation of this issue would not have altered the judge's
highly discretionary decision to admit the recording, and that
any inference by the jury that the defendant may have been
involved in a later, undescribed incident would not have
influenced their decision.
23
ineffective assistance nor the requisite prejudice to the
defense.
Defense counsel explained, in connection with the
defendant's motion for a new trial, that his goal in coping with
Burns's testimony was to suggest that it was not plausible that
the defendant would have confessed to Burns. In order to
achieve this aim, counsel sought to stress that "[t]heir
business relationship was just that, a business relationship."
This theme was pursued in counsel's cross-examination, which
revealed that Burns and the defendant "never really hung around"
and that "[e]very time [Burns] met with [the defendant] was
either to sell a gun or to buy drugs." In closing, counsel
disparaged Burns's assertion that "someone who . . . knows him
only for business, has confessed to him about shooting someone."
This tactic was not unreasonable. And although it is possible
that counsel could have pursued the same approach while more
artfully skirting the precise nature of the defendant's role in
his business dealings with Burns, we cannot say that counsel's
performance fell "measurably below" what would be expected of an
"ordinary fallible lawyer." Commonwealth v. Boria, 460 Mass.
249, 252 (2011), quoting Commonwealth v. Saferian, 366 Mass. 89,
96 (1974).
Nor did counsel's performance on this score create a
substantial likelihood of a miscarriage of justice. In his
24
decision on the defendant's motion for a new trial, the judge
indicated that he would have denied a motion to exclude the
evidence that Burns had sold guns to the defendant, if one had
been made. Such a decision would not have been reversible
error. Evidence showing a defendant's access to firearms may be
"admissible for purposes other than showing a defendant's bad
character or criminal propensity," Commonwealth v. McGee, 467
Mass. 141, 157 (2014) (McGee), if the probative value of that
evidence "outweigh[s] the likelihood that [it] will have an
impact on the jury unfair to a defendant." Id., quoting
Commonwealth v. Toro, 395 Mass. 354, 358 (1985). Our recent
decisions have indicated that this standard typically will not
be satisfied by evidence showing only "a person's general
acquaintance with weapons," McGee, supra, quoting Commonwealth
v. Toro, supra, particularly where the weapons in question
"definitively could not have been used in the commission of the
crime." McGee, supra, quoting Commonwealth v. Barbosa, 463
Mass. 116, 122 (2012). Here, while the Commonwealth did not
suggest that the victim was shot with a gun sold by Burns,15
there also was no "forensic evidence establish[ing] that the
weapon[s] could not have been used to commit the crime." See
15
Burns testified that he regularly obliterated the serial
numbers from firearms before selling them. The gun recovered at
the scene of the shooting had an identifiable serial number on
it.
25
McGee, supra at 157-158, citing Commonwealth v. Barbosa, 463
Mass. at 123. And the evidence in question was not only
probative of the defendant's access to firearms; it also
represented significant information for the jury to consider in
assessing Burns's credibility.16 In addition, the judge provided
an appropriate limiting instruction, stating that the jury could
consider "testimony concerning certain involvement that [the
defendant] may have had in the trafficking of guns" only as to
"whether [the defendant] had access to a firearm at or around
the time of the killing" and "as to the relationship between Mr.
[Burns] and [the defendant]." See McGee, supra at 158, and
cases cited. Finally, the evidence that the defendant had
purchased guns "received only 'scant attention' at trial." Id.,
quoting Commonwealth v. Barbosa, supra at 124.17 Counsel's
failure to object was, again, without consequence.
16
Similarly, the testimony of Arrington, the defendant's
roommate, that he had seen the defendant with guns, but not with
a .22 caliber, see note 4, supra, was probative of Burns's
credibility, because it tended to confirm Burns's testimony that
he had sold the defendant a variety of guns. Other factors
noted in our discussion of Burns's testimony also would have
countered any claim (which the defendant does not make) that the
admission of Arrington's testimony was reversible error, and, by
extension, any claim (also not made) that defense counsel's
failure to object to that testimony amounted to ineffective
assistance.
17
The evidence that the defendant had sold drugs to Burns
received even less attention at trial, and was unlikely to sway
the jury's view of whether the defendant was guilty of murder.
26
f. Closing arguments. The defendant's last pair of
complaints about his attorney's performance concerns the closing
arguments. One of these criticisms concerns defense counsel's
own argument; the other, counsel's failure to challenge a
portion of the prosecutor's argument.
Defense counsel's closing was devoted to the argument that
the Commonwealth had failed to prove that the defendant was the
shooter. According to the defendant, his attorney was remiss in
failing to argue also that the shooter did not premeditate the
killing. The judge understood this argument to suggest that
counsel should have taken the inconsistent position, "I didn't
do it, but if I did, it wasn't murder in the first degree." We
do not think that the argument is so lightly dismissed. It
would have been consistent, and conceivably beneficial, for
counsel to have argued that the defendant was not proved to be
the shooter, and that the shooter -- whoever he was -- was not
proved to have acted with premeditation. Even so, we cannot say
that the approach taken by counsel was manifestly unreasonable.
As indicated earlier, a tactical decision to focus on the most
important or promising lines of defense, while relinquishing
others, can serve to enhance the credibility of a defense, in
part by warding off the impression that a defendant is grasping
at straws. See Commonwealth v. Ramsey, 466 Mass. 489, 496 n.8
27
(2013).18 The fact that the tactic chosen "may appear
questionable from the vantage point of hindsight" does not
suffice to support an ineffective assistance claim. See
Commonwealth v. Johnson, 435 Mass. 113, 133-134 (2001), quoting
Commonwealth v. Haley, 413 Mass. 770, 777-778 (1992).
Lastly, the defendant contends that his attorney should
have objected to the prosecutor's statement, in closing, that
the defendant "waited in the shadows like a coward" before
shooting the victim. Any error on this score does not warrant
reversal. Johnson testified that, while Payne and the victim
were arguing, she "s[aw] a shadow pass [her], but, . . . never
focused on who it was." In the security camera footage, the
entire scene appears to be bathed in shadows, whether due to the
late-night hour, the poor quality of the recordings, or both.
At worst, the prosecutor's remark was a minor embellishment, see
Commonwealth v. Roy, 464 Mass. 818, 834 (2013), citing
Commonwealth v. Sanna, 424 Mass. 92, 107 (1997), and counsel's
failure to object to that remark did not give rise to a
substantial likelihood of a miscarriage of justice.
g. Cumulative effect. Considered both separately and
cumulatively, the missteps that the defendant attributes to his
counsel do not rise to the level of a violation of rights
18
Otherwise put, a reasonably effective attorney could have
been concerned that the jury might overlook the subtlety of the
claim, "I didn't do it, and whoever did it did not premeditate."
28
requiring a new trial. The assistance provided to the defendant
by his attorney was sufficiently effective to render the trial
fair, even if not perfect, and that is all that can be asked.
See Commonwealth v. Brescia, 471 Mass. 381, 391 (2015), quoting
Commonwealth v. Graves, 363 Mass. 863, 872–873 (1973) ("[a]
defendant is entitled to a fair trial but not a perfect one,
'for there are no perfect trials'"); Commonwealth v. Mahar, 442
Mass. 11, 20-21 (2004) (Sosman, J., concurring), quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984) ("the purpose
of the effective assistance guarantee of the Sixth Amendment [to
the United States Constitution] is . . . to ensure that criminal
defendants receive a fair trial").
3. Unidentified informant. The defendant's other claim of
error concerns rulings made by the judge with regard to the
disclosure of the identity of a purportedly confidential
informant. One week before trial, defense counsel received from
the Commonwealth a report prepared by the FBI, apparently
produced as a document containing "facts of an exculpatory
nature" pursuant to Mass. R. Crim. P. 14 (a) (1) (A) (iii), as
amended, 442 Mass. 1518 (2004). The report recounted a meeting
between an informant and three law enforcement agents: an FBI
special agent, and two officers of the Lynn police department,
who also served as "task force officers." The report described
the informant as "[a]n individual, who is in a position to
29
testify." According to the report, the informant "heard from
someone that the word on the streets of Lynn" was that "PAYNE
shot and killed [the victim]. Immediately after the shooting,
PAYNE provided the pistol to [the defendant], aka BLACK, and
ordered him to get rid of the weapon." The report added that
the informant knew that the defendant had "moved from New Jersey
to Lynn, MA, shortly before [the victim's] murder."
Upon receiving this report, defense counsel moved for an
order requiring the Commonwealth to provide him with the name
and address of the informant. A judge of the Superior Court,
who was not the trial judge, ordered the Commonwealth to
"inquire of [the Lynn police officers] as to the identity of 'an
individual, who is in a position to testify.'" On the first day
of jury selection, defense counsel told the trial judge that the
prosecutor had responded that "the Lynn officers were not
authorized to disclose any of that information to counsel."
Counsel requested that the Commonwealth "still be ordered to
provide . . . that information." He explained that, "if [he]
knew the name of that someone, [he] would send an investigator
out to speak to that person to see if there's any relevant
evidence."
At the judge's request, the prosecutor telephoned an
assistant United States attorney (AUSA) involved with the FBI's
dealings with the informant. After that conversation, the
30
prosecutor told the judge that, according to the AUSA, the
informant was considered to be "a confidential source," who "may
be in a position to testify at some point down the road." The
prosecutor reported that the Lynn police officers were "not
authorized to disclose" information about the informant's
identity, which those officers had acquired "in their capacity
as members of the [F]ederal task force." He said also that the
AUSA had "explain[ed] . . . [that] in the [F]ederal rules, they
don't have to disclose [whether a witness will testify] until
[twenty-one] days before trial . . . . And [the AUSA] wouldn't
get into any of that with me and I didn't ask."
The judge then denied the defendant's motion for disclosure
of the informant's identity. The judge also declined to permit
defense counsel to pose questions about the informant's identity
to the Lynn police officers. The defendant preserved his
objections to these rulings.
The judge gave two reasons for his rulings. The first
concerned the fact that the informant's identity was held by the
FBI, not by State prosecutors or police. The second reason was,
in essence, that the defendant had no right to learn of the
informant's identity, irrespective of which body held that
information. Taking up these reasons in order, we conclude that
neither suffices to support the judge's rulings.
31
a. Dual sovereignty. The judge's first stated reason was
that the "[F]ederal government is a separate sovereign," which
"has refused to comply." The judge reasoned that "the way we
have to look at it is it's as though the United States was
Bolivia. And Bolivia has refused to give us the information."
For purposes of our discussion, we adopt the far-from-certain
premise that the information reported by the prosecutor sufficed
to establish that the Commonwealth possessed no knowledge of the
informant's identity.19 Even so, we do not share the analysis
offered by the judge.
We have recognized for many years that the interface
between State and Federal sovereigns in criminal investigations
and prosecutions "creates a potentiality for unfairness which
would need correction if realized in practice." Commonwealth v.
Liebman, 379 Mass. 671, 674 (1980) (Liebman I), S.C., 388 Mass.
483 (1983) (Liebman II). In order to allay this concern, we
have held that "in dual sovereignty situations . . . 'the burden
of securing Federal cooperation should be placed on the State
prosecutor rather than on the defendant.'" Commonwealth v.
Lykus, 451 Mass. 310, 327 (2008), quoting Liebman I, supra at
19
Notwithstanding the limited, second-hand information
relayed by the prosecutor, it remains unclear whether the
investigation that gave rise to the Federal Bureau of
Investigation report was conducted jointly with the
Commonwealth, and what role, precisely, the Lynn police officers
played in that investigation.
32
675. See Matter of Pressman, 421 Mass. 514, 518 (1995);
Commonwealth v. Donahue, 396 Mass. 590, 598-600 (1986). In an
instructive case, the defendant moved unsuccessfully to obtain
Federal grand jury minutes, to which he would have been entitled
had the grand jury been convened by the State (or, it appeared,
had the trial been conducted in Federal court). Liebman I,
supra at 674-675. We remanded with instructions that the
district attorney be required "to take whatever steps are
appropriate to secure the minutes in question." Id. at 675.
"If the Federal court . . . refuses to send to the State court
the requested transcripts," we said, the State indictment would
be dismissed. Id. See Commonwealth v. Lykus, supra;
Commonwealth v. Donahue, supra at 598-599; Liebman II, supra at
486-487.
The same analysis applies here. Assuming that the
defendant is entitled to the information that he seeks, that
entitlement must not be foiled by "[t]he introduction of two
sovereignties," each able to withhold information by asserting
its independent sovereignty. See Liebman I, 379 Mass. at 674.
"[C]ooperation between State and Federal prosecutors is and
should be common enough" that the equitable course, here, too,
is to require that the Commonwealth bear the onus of securing
33
Federal cooperation. See Commonwealth v. Donahue, 396 Mass. at
600, quoting Liebman I, supra at 675.20
b. Informant privilege. The second reason the judge gave
for his rulings was that the information relayed in the FBI
report "is so remote that it does not warrant penetrating what
appears to be a claim of informant privilege." This line of
reasoning, while relevant to an appropriate examination of the
defendant's motion for disclosure of the informant's identity,
should not have been the beginning and end of that examination.
"The government's privilege not to disclose the identity of
an informant has long been recognized in this Commonwealth."
Commonwealth v. Dias, 451 Mass. 463, 468 (2008) (Dias), and
cases cited. This "informant privilege" may be asserted where
the Commonwealth otherwise would be required to provide an
informant's identity to a defendant as part of its discovery
obligations.21 Roviaro v. United States, 353 U.S. 53, 59 (1957)
20
A different analysis applies where a defendant asserts
after trial that, although no judicial error occurred, the
prosecutor "suppress[ed] . . . evidence favorable to an accused"
concerning a confidential informant. See Commonwealth v. Daye,
411 Mass. 719, 728 (1992), quoting Brady v. Maryland, 373 U.S.
83, 87 (1963). A determination that the undisclosed information
was held only by the Federal government may defeat this type of
claim, because "[t]he prosecutor cannot be said to suppress that
which is not in his [or her] possession or subject to his [or
her] control." Commonwealth v. Donahue, 396 Mass. 590, 596
(1986).
21
There is apparently no disagreement that, absent the
assertion of the informant privilege, the identity of the person
34
(Roviaro). The justification for permitting the Commonwealth to
maintain an informant's anonymity is the need to encourage
"citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials." Id.The analysis of whether an informant's identity should be
kept confidential or disclosed may best be described as
generally occurring in two stages. The first stage involves
preliminary determinations as to (a) whether the Commonwealth
has properly asserted an informant privilege, and (b) whether
the defendant has adequately challenged the assertion of the
privilege as an impermissible interference with his or her right
to present a defense. The second stage of the analysis then
involves a balancing test, introduced by the United States
Supreme Court in Roviaro, supra, in which the interest of the
public in protecting the anonymity of informants is weighed
against the defendant's right to defend himself.
The preliminary stage calls for the two following
inquiries. First, "[t]he scope of the [informant] privilege is
limited by its underlying purpose." Id. at 60. Accordingly,
the privilege may be asserted only where disclosure would
endanger the informant or otherwise impede law enforcement
efforts. See id.; Puerto Rico v. United States, 490 F.3d 50, 62
who provided the information detailed in the report produced to
the defendant would be discoverable under Mass. R. Crim. P.
14 (a) (1) (A) (iii), as amended, 442 Mass. 1518 (2004).
35
(1st Cir. 2007), cert. denied, 552 U.S. 1295 (2008).
Ordinarily, the facts indicating whether or not the privilege
would serve its underlying purpose are within the Commonwealth's
control.
Second, if the Commonwealth properly has asserted an
informant privilege, the defendant may request that the
privilege be set aside on the grounds that it "interferes with a
fair defence." Commonwealth v. Johnson, 365 Mass. 534, 544
(1974), S.C., 372 Mass. 185 (1977) (Johnson). A defendant
making such a claim is required to present "some offering so
that the trial judge may assess the materiality and relevancy of
the disclosure to the defense, if that relevancy is not apparent
from the nature of the case and the defense offered thereto."
Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013) (Kelsey),
quoting Commonwealth v. Swenson, 368 Mass. 268, 276 (1975).22
The relatively undemanding nature of this standard is the result
of the fact that, again, the details concerning privileged
information sought by the defendant ordinarily are not in his or
22
We have said that this requirement of materiality asks
"whether disclosure [is] needed . . . for a fair presentation of
[the defendant's] case." Commonwealth v. Kelsey, 464 Mass. 315,
323 (2013) (Kelsey). See Commonwealth v. Dias, 451 Mass. 463,
469 (2008) (Dias), quoting Commonwealth v. Lugo, 406 Mass. 565,
571 (1990), and Commonwealth v. Ennis, 1 Mass. App. Ct. 499,
501–502 (1973) ("standard of materiality or something roughly
akin thereto" has been described variably with terms "'helpful,'
'material,' 'relevant,' [and] 'important'").
36
her possession. See Commonwealth v. Hernandez, 421 Mass. 272,
276 (1995), quoting Johnson, supra at 547.
The second stage of the analysis is undertaken if the
privilege both has been asserted properly by the Commonwealth
and has been challenged adequately by the defendant. Then the
judge must decide whether the informant's identity and
concomitant information are sufficiently "relevant and helpful
to the defense of an accused" that it must be disclosed. See
Dias, 451 Mass. at 468, quoting Roviaro, supra at 60-61. This
determination requires the judge to engage in Roviaro's
"balancing [of] the public interest in protecting the flow of
information against the individual's right to prepare his [or
her] defense," taking into account "the crime charged, the
possible defenses, the possible significance of the [privileged]
testimony, and other relevant factors." Dias, supra at 468-469,
quoting Roviaro, supra at 62.
The judge's denial of the defendant's motion for disclosure
of the informant's identity here was not grounded in an informed
application of this framework. Beginning with the element of
the preliminary inquiry concerned with the Commonwealth's
assertion of the informant privilege, a meager basis at best was
presented to believe that the privilege was appropriately being
invoked. All of the information concerning the informant was
conveyed to the judge second-hand, by a State prosecutor with no
37
personal knowledge of the circumstances. The prosecutor could
say only, in essence, that the Federal government did not wish
to reveal the informant's identity at that time -- and that the
AUSA involved "wouldn't get into any of that . . . and I didn't
ask." No details were provided with regard to whether the
authorities were treating the individual interviewed by the FBI
as a confidential informant who must remain anonymous. And no
facts presented indicated that disclosure of the informant's
identity would imperil the informant or injure other law-
enforcement interests.23 While it is possible that the
importance of concealing an informant's identity is, in some
instances, self-evident, we do not think that it was here,
particularly in view of the statement in the FBI report that the
informant was "in a position to testify." This enigmatic
statement at least called for further inquiry.
The other element of the preliminary analysis, namely, the
adequacy of the defendant's contention that the informant
privilege should give way to his right to present a defense, may
have been the focus of the judge's remark that the information
contained in the FBI report was "remote." For at least two
reasons, however, the remoteness of that information did not
23
Among the matters that remained unexplored when the judge
made his rulings was the nature of the investigation in which
the informant was involved, see note 19, supra, including
whether that investigation was connected in any way to the crime
for which the defendant was being tried.
38
itself establish that the informant's identity was not material
and relevant to the defense. With regard to relevancy, the
defendant posited at trial that the victim had been shot by
another man; the informant's report that Payne was the shooter
was thus intensely relevant to the theory of the defense.
Contrast Kelsey, supra at 326 (identity of percipient witness
not obviously relevant to defense where defendant did not
apparently intend to pursue defense of misidentification).
As for the materiality of the informant's identity, it is
true that, according to the FBI report, the information relayed
by the informant concerned the "word on the streets of Lynn";
standing alone, "'word on the street' carries no indicia of
reliability." Commonwealth v. Silva-Santiago, 453 Mass. 782,
804 (2009). Still, the informant apparently was able to provide
details that went beyond a threadbare rumor, such as the fact
that both Payne and the defendant had handled the murder weapon
(which was compatible with the DNA evidence) and the fact that
the defendant had traveled to New Jersey (which dovetailed with
Burns's trial testimony). See id. at 804-805 (reliability of
"word on the street" may be bolstered by showing "that the
'word' came from a percipient witness" or by other facts
rendering that "word" inherently plausible). At a minimum, the
question whether the informant was a percipient witness to the
39
shooting, or whether he had spoken to a percipient witness,
should have been explored.
Moreover, in some circumstances, knowledge of the
informant's identity can offer substantial aid to the defense
even if the informant himself cannot provide testimony
sufficiently relevant and reliable to be admitted at trial. See
Dias, supra at 473 ("While calling the informant as a witness
might be one way of putting that information to good use in this
case, it is not the only way, and it may not be as useful to the
defense as knowledge of his [or her] identity before trial");
Roviaro, supra at 64 ("The desirability of . . . interviewing [a
confidential informant] in preparation for trial . . . was a
matter for the accused rather than the Government to decide");
United States v. Saa, 859 F.2d 1067, 1074 (2d Cir. 1988), cert.
denied, 489 U.S. 1089 (1989) and cases cited ("the right under
Roviaro to information about an informant [is] not merely so
that the defense can call the informant to testify, but so that
it can seek to interview him first"). Here, there was no
apparent reason to doubt that, by employing an investigator or
other means, the defendant might have explored whether the
informant knew other pertinent information, whether the person
who had told the informant about the "word on the streets of
Lynn" could be identified, and whether that person could
elaborate on the sources and substance of his or her
40
information. The Commonwealth was of course free to endeavor to
persuade the judge that disclosure of the informant's identity
would yield little of value to the defense.24 If the judge were
persuaded, upon a proper showing, that the informant's identity
would be unlikely to lead the defendant to more than second- or
third-hand "word on the street," the conclusion that the
defendant had made an inadequate showing of materiality might
have been warranted. But no such showing was undertaken.
We need not speculate about what the results of a second-
stage Roviaro balancing exercise might have been, had the judge
properly determined that the Commonwealth appropriately asserted
the informant privilege and that the defendant made an adequate
offering concerning the materiality and relevancy of the
informant's identity to the defense.25 The point is that
"[t]here was no attempt by the judge at orderly appraisal of the
actuality of any threat and the materiality of the [information]
24
"In a case where it is not clear from the record that
disclosure of an informant's identity would provide something
material to the defense, a judge may hold an in camera hearing
to assist in making that determination." Dias, supra at 472.
"The nature of the in camera hearing is left to the discretion
of the judge, who may, in light of the particular facts,
determine whether the presence of counsel is necessary or
appropriate." Id. at 472 n.15, citing Commonwealth v. Lugo, 23
Mass. App. Ct. 494, 504 (1987), S.C., 406 Mass. 565 (1990). See
generally Commonwealth v. Shaughessy, 455 Mass. 346, 354 (2009),
and cases cited.
25
Any second-stage balancing in which the judge may have
engaged implicitly was premature and, consequently, misplaced.
41
sought. Nor was any compromise considered that might allow
disclosure while minimizing danger to the [informant]."
Johnson, 365 Mass. at 546. See Kelsey, 464 Mass. at 327-328.
We remand for further proceedings to conduct the requisite
"orderly appraisal" of the relevant factors in accordance with
the framework we have described.
We envision that those proceedings will include the
following. Upon remand, a hearing should be held to reconsider
the defendant's pretrial motion for disclosure of the
informant's identity. If the judge determines that the motion
was meritorious,26 the defendant should be afforded a reasonable
interval to try to interview the informant and to investigate
pertinent information, if any, that the informant may provide.
If the defendant then successfully presents evidence that "might
create a reasonable doubt that did not otherwise exist, a new
trial may be appropriate. If . . . not, the verdict and
judgment may be permitted to stand." Liebman I, 379 Mass. at
676.27 Because the defendant preserved the issue prior to the
26
If the pretrial motion was not meritorious, but new
circumstances permit the informant's identity to be disclosed
(whether now or in the future), the defendant may seek a new
trial upon a showing that newly discovered evidence "would
probably have been a real factor in the jury's deliberations."
Commonwealth v. Cowels, 470 Mass. 607, 617 (2015), quoting
Commonwealth v. Grace, 397 Mass. 303, 305–306 (1986).
27
In Commonwealth v. Liebman, 388 Mass. 483, 487 n.4
(1983), we noted that the standard of review delineated in
42
current appeal, the reconsidered decision on the merits of his
pretrial motion -- and, if that motion is allowed, the decision
as to whether information uncovered as a result warrants a new
trial -- will be appealable as decisions on a postconviction
motion filed before direct appeal. See Liebman II, supra;
Liebman I, supra.
4. Conclusion. We reject the defendant's claim that he
was denied the right to effective assistance of trial counsel.
We remand the matter to the Superior Court for further
proceedings consistent with this opinion concerning the
defendant's motion for disclosure of the informant's identity.
On our review of the entire record now before us, pursuant to
G. L. c. 278, § 33E, we do not discern cause to reduce the
verdict of murder in the first degree or to order a new trial.
So ordered.
Commonwealth v. Liebman, 379 Mass. 671, 676 (1980), is "less
exacting . . . than the constitutional requirements of [Federal
decisions]." More recently, we clarified that an asserted right
to disclosure of an informant's identity is a constitutional
claim that, when preserved, is reviewed "to determine whether
the error, if any, was 'harmless beyond a reasonable doubt.'"
Kelsey, supra at 319, quoting Commonwealth v. Bacigalupo, 455
Mass. 485, 495 (2009).