Commonwealth v. Brescia ( 2015 )

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SJC-10686
COMMONWEALTH vs. JAMES E. BRESCIA.
Middlesex. January 6, 2015. - May 8, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Homicide. Practice, Criminal, New trial, Witness, Capital case.
Witness, Credibility. Evidence, Credibility of witness.
Indictments found and returned in the Superior Court
Department on June 26, 2006.
The cases were tried before Wendie I. Gershengorn, J., and
a motion for a new trial, filed on April 15, 2011, was heard by
Douglas H. Wilkins, J.
Bethany Stevens, Assistant District Attorney, for the
Commonwealth.
Alan Jay Black for the defendant.
LENK, J. At the defendant's trial for murder and
conspiracy, the theory of the prosecution was that the defendant
had hired an assassin to kill the victim. The victim was a man
with whom the defendant believed his wife was romantically
2
involved. The defendant took the stand and testified on his own
behalf, asserting that he had requested only that the victim be
threatened or beaten, and that subsequently he had withdrawn
from the arrangement altogether. The defendant was cross-
examined on the same day and on the following day.
After the jury were charged, the defendant was taken to the
hospital, where it was determined that he had suffered a stroke.
Testing later revealed that the stroke had occurred on the night
between the first and second days of the defendant's testimony.
The jury, who never learned of the defendant's stroke, returned
guilty verdicts on both indictments.
The defendant filed a motion for a new trial. Because the
trial judge had retired, the motion was assigned to another
judge, who held a four-day evidentiary hearing and issued a
detailed written decision. The judge determined that the
defendant's then-undetected stroke had affected the course of
his testimony in a manner that well might have damaged his
credibility in the jury's eyes. The outcome of the trial, the
judge explained, had turned in large measure on the jury's
assessments of credibility. Concluding essentially that
"justice may not have been done," Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), the judge ordered a new
trial. The Commonwealth appealed.
We discern no significant error of law or abuse of
3
discretion in the judge's decision that a new trial was
warranted, and we therefore affirm.
1. Background. a. The Commonwealth's case. We describe
the evidence presented by the Commonwealth in some detail. The
defendant and his wife were married in 1998. In 2003, the
defendant's wife filed for divorce; that action was soon
withdrawn, and the couple attempted to reconcile. The
defendant's wife again filed for divorce in June, 2005. At
about the same time, she renewed an acquaintance with the
victim, whom she had dated intermittently from 1984 to 1996.
The two again began to meet in person in June or July of 2005.
The defendant learned of the rekindled connection between
the victim and his wife. He and his wife fought often about
this subject. The defendant's wife testified that the defendant
told her, on one occasion, that "it wouldn't be good for [the
victim's] health" if the victim and the defendant's wife ended
up together; when the defendant's wife told him not to do
something "stupid," the defendant responded, "it won't be [me]
who does it."
The defendant hired a private investigator to follow his
wife. In September, 2005, he also purchased records concerning
the victim from an Internet search company.
The defendant heard about Scott Foxworth, allegedly the
4
assassin who killed the victim,1 from a coworker, Nancy Campbell.
Campbell previously had dated Foxworth. The defendant learned,
among other things, that Foxworth had been incarcerated for
murder, and that he once had offered to have Campbell's husband
"beaten up." The defendant asked Campbell to contact Foxworth,
saying that he "wanted somebody taken care of." Instead,
Campbell gave the defendant Foxworth's telephone numbers.
The defendant contacted Foxworth in October, 2005. The
content of the arrangement made between Foxworth and the
defendant was the key point of dispute at trial. According to
Campbell's testimony, the defendant spoke, at first, of wanting
to have the victim "beaten up"; but later, in approximately
December, 2005, the defendant said that "a beating wasn't
enough," and that if the victim were to die, the crime could not
be traced back to the defendant.2
The defendant telephoned Foxworth sixty-four times over the
months following their initial contact in October, 2005. He
made these calls from pay telephones, using coins and prepaid
1
Scott Foxworth was subsequently convicted of murder in the
first degree in a separate trial. His appeal is pending in this
court.
2
The credibility of Nancy Campbell's testimony was weakened
on cross-examination, primarily in view of the fact that she had
not told police that the defendant wanted the victim killed
until the fourth time she was interviewed. See part 3, infra.
5
cards he purchased for this purpose. On October 14, the
defendant and his mother cashed a check in the amount of $4,459;
the next day, Foxworth made a cash deposit of $1,000.
Sometime in September, 2005, the defendant had left the
home he had shared with his wife. From Christmas Eve of that
year to New Year's Day, however, the defendant stayed at that
house with his wife and their children. The defendant and his
wife were sexually intimate during this period. His wife told
him, however, that she still intended to move forward with a
divorce. Soon thereafter, the defendant wrote to his wife that
their time together over the holidays had intensified his
confusion and his emotions for her. The defendant also sent a
series of electronic mail messages in the same vein to his
wife's sister.
On January 13, 2006, the victim was found dead in his
automobile, parked in a parking garage in Newton next door to
the building where he worked. The cause of death was a gunshot
wound to the head. The victim's wallet, which contained credit
cards and $541 in cash, was recovered from the scene.
A red vehicle was seen at the victim's workplace on the
morning of the shooting. A witness thought that the vehicle
might have been a Ford Taurus. None of the individuals who
worked in that building drove a vehicle of that description.
Foxworth owned a red Taurus, and sometime in 2006, his daughter
6
saw him in that vehicle with a gun.
On January 15, 2006, the defendant asked Charles Merkle, an
acquaintance of his, for $2,500 that Merkle was holding for the
defendant in an envelope.3 The defendant said that he needed the
money to pay a lawyer. Merkle accompanied the defendant to a
fast food restaurant in Andover. The defendant entered the
restaurant with the envelope containing the money, and left
without it.
b. The defense. The defendant testified on his own
behalf, relating the following version of events. The defendant
learned that his wife had reconnected with the victim. He knew
that the victim had a history of drug abuse and drug offenses,
felt that the victim was not a good role model, and "didn't want
[his] children to be around any[body] like that." When the
defendant first spoke to Foxworth, he mentioned that it
"wouldn't bother [him]" to see the victim "get beat up or
something."
Later on, according to the defendant, he asked Foxworth to
"approach[]" the victim and to "engage." Foxworth asked to be
paid $2,000, and the defendant "laughed and . . . said[,] 2,000
dollars just to go talk to somebody?" Foxworth suggested that
3
The defendant had given Charles Merkle an envelope
containing $5,000 around Thanksgiving, and had taken back half
of that money sometime near Christmas.
7
the defendant pay him $1,000 in advance and another $1,000 if
"it stops." In October, 2005, the defendant agreed, and he paid
Foxworth $1,000 in cash. The defendant's understanding was that
Foxworth would "threaten" the victim, and perhaps "beat him if
it came to that"; he never asked Foxworth to kill the victim.
The defendant continued to speak to Foxworth on the telephone,
usually about Foxworth's desire to date Campbell again and his
hope that the defendant would intercede with Campbell on his
behalf.
By early December, 2005, the defendant testified, it
appeared to him that Foxworth was not "interested in doing
anything." The defendant asked Foxworth to return his money and
to "forget this whole thing." The defendant reiterated this
request several times in late December, 2005, and early January,
2006, telling Foxworth also that "things were going well with
the family and . . . it didn't appear that [the defendant]
needed to do anything like that anymore."
After he found out that the victim had been killed, the
defendant called Foxworth, who said, "[W]ell, at least your
problem's taken care of now." The defendant was
"flabbergasted." Foxworth then asked the defendant for the
"other thousand dollars," and told the defendant that if he
didn't pay, "the same would end up happening to [him]." The
defendant obtained the envelope containing $2,500 from Merkle,
8
paid Foxworth $1,000, and kept the remaining $1,500.
c. Conclusion of the trial. The direct examination of the
defendant took place on June 19, 2008, a Thursday. The
defendant was cross-examined on that afternoon and on the
following day. The jury were charged on Monday, June 23, 2008.
The next morning, the judge and the attorneys were informed that
the defendant had suffered a stroke and had been taken to the
hospital. The jury began their deliberations that day without
entering the court room and, therefore, without learning that
anything out of the ordinary had occurred.
The defendant's attorney visited the hospital, where he
spoke with the defendant and with the defendant's doctor. Upon
returning to the court house, defense counsel reported that the
defendant had communicated with him "without obvious
difficulty." The defendant told his attorney that he waived his
right to be present for the remainder of the trial. Defense
counsel's assessment was that this waiver "was made knowingly
and intelligently." Later that day, the jury found the
defendant guilty of both murder in the first degree and
conspiracy.
d. Postconviction proceedings. The defendant moved for a
new trial, arguing that (a) a crucial stage of the trial had
been conducted while he was incompetent; (b) the judge did not
ensure that the defendant validly waived his right to be
9
present; and (c) the defendant was deprived of his right to the
effective assistance of counsel, because his attorney failed to
seek an examination of the defendant's competency, waived the
defendant's right to be present for the end of the trial, and
did not move for a mistrial after learning of the defendant's
stroke. The defendant also filed his direct appeal, which was
stayed pending resolution of the motion for a new trial.
The motion judge held a four-day evidentiary hearing. The
judge heard testimony from the defendant, his trial attorney, a
court officer, the court reporter who had transcribed the trial,
a jailhouse nurse, two medical experts called by the defendant
(a neurologist and a forensic psychiatrist), and a neurologist
called by the Commonwealth. The trial had been videotaped by a
network television station, and the judge thus was able to
consult high-quality video recordings of the defendant's two
days of testimony (as was this court).4
The motion judge made the following findings of fact, which
are not in dispute.
Beginning in the early morning hours of June 20, 2008, the
defendant suffered at least one stroke, "ischemic in nature,
caused by an embolus that blocked blood flow to areas of the
4
The motion judge noted that the video recording was made
"possible only because the Commonwealth allows cameras in the
courtroom."
10
brain." The stroke was not diagnosed when the defendant's
symptoms first arose, but ultimately it was confirmed by a
magnetic resonance imaging scan and by expert analysis.
The first symptom of the defendant's stroke was a severe
headache, which interfered with his sleep on the night following
his first day on the stand. The defendant's headache continued
during the ensuing day. He twice complained to a court officer,
and was told both times that he could not be given aspirin.5
On the defendant's second day of testimony, the court
reporter noticed that the defendant was confusing syntax,
pronouns, names, and the like. During a break, the court
reporter asked the defendant's attorney, "What's up with your
guy?" Defense counsel responded that the defendant was acting
as usual.
The motion judge found that, in hindsight, the court
reporter had been correct. As reflected in the transcripts and
the video recordings, the defendant's "ability to testify was
reduced" on his second day of testimony, as compared both to the
previous day and to the defendant's "usual capabilities." The
defendant sometimes appeared "uncomprehending or hesitant." He
had "difficulty understanding the questions being asked of him,"
5
The judge wrote that a conversation between the defendant
and his attorney, which was captured inadvertently on the video
recording of the trial, was not material to his decision.
11
and "[a]fter understanding the questions, the defendant . . .
had more difficulty than usual in finding and saying the words
he wanted to use." The defendant did not, however, present
incriminating testimony or testimony that was inconsistent with
his theory of defense; his deficits "went to the manner and
timing of his testimony . . . not to the substance." On the
basis of the expert testimony presented, the judge found that
these deficits had been caused by the defendant's stroke.
Proceeding from these findings of fact, the motion judge
rejected the defendant's arguments for a new trial based on
alleged constitutional errors. The judge determined that
(a) the defendant was competent to stand trial at all relevant
times; (b) the trial judge conducted an appropriate inquiry into
the defendant's competency, and her decisions on the basis of
that inquiry involved no error or abuse of discretion; (c) the
defendant executed a knowing and intelligent waiver of his right
to be present at the final stages of his trial; and (d) the
assistance provided by the defendant's trial counsel was not
unconstitutionally ineffective.
Nevertheless, the judge concluded that a new trial was
warranted "under the test of Mass. R. Crim. P. 30 (b) ('justice
may not have been done')." The judge explained that "[t]he jury
could have viewed the defendant's non-responsiveness, claimed
lack of memory and requests for repetition of the question [on
12
his second day of testimony] as disingenuous or intentionally
evasive and therefore as undermining his credibility." In
closing argument, "[t]he Commonwealth . . . seized upon those
difficulties and the defendant's demeanor as proof of
mendacity." And the trial judge instructed the jury, consistent
with the model jury instructions, that a witness's demeanor on
the stand is a factor relevant to assessing his or her
credibility. Given that the defense had "turned upon whether
the defendant's testimony created a reasonable doubt for the
jury," the judge concluded that the unusual circumstances gave
rise to a "basic unfairness or potential for injustice,"
requiring a new trial. The Commonwealth timely appealed.
2. Applicable standards. It is well established that,
"[i]n reviewing the denial or grant of a new trial motion, we
'examine the motion judge's conclusion only to determine whether
there has been a significant error of law or other abuse of
discretion.'" Commonwealth v. Wright, 469 Mass. 447, 461
(2014), quoting Commonwealth v. Weichell, 446 Mass. 785, 799
(2006).6 A judge's findings of fact made after an evidentiary
6
"When the defendant has prevailed on a motion for a new
trial after a conviction of murder in the first degree . . . the
[G. L. c. 278, § 33E,] standard [requiring review for a
substantial likelihood of a miscarriage of justice] does not
apply, for, if we affirm the allowance of the motion and the
defendant is convicted at retrial, he receives § 33E review on
appeal." Commonwealth v. Hill, 432 Mass. 704, 710 n.14 (2000),
13
hearing "will be accepted if supported by the record."
Commonwealth v. Walker, 443 Mass. 213, 224 (2005), citing
Commonwealth v. Bernier, 359 Mass. 13, 16 (1971). If the motion
judge did not preside at the trial, we "regard ourselves in as
good a position as the motion judge to assess the trial record."
Commonwealth v. Wright, supra, quoting Commonwealth v. Weichell,
supra.
The parties disagree about the standard that the judge
should have applied in reviewing the motion for a new trial. As
noted, the judge did not find that the defendant's trial had
been infected by error; the defendant does not challenge this
determination. The Commonwealth argues that, under these
circumstances, a new trial would be warranted only upon a
showing of a "substantial risk of a miscarriage of justice."
Alternatively, the Commonwealth suggests that the defendant
should be held to the standard applicable when a new trial is
sought on the basis of newly discovered evidence. The
defendant, on the other hand, contends that the judge was
permitted "to consider the essentially case-specific issue of
whether there has been a miscarriage of justice on a highly
discretionary standard."
citing Commonwealth v. Martin, 427 Mass. 816, 817-818 & n.2
(1998).
14
For the reasons we describe, our view is essentially that
taken by the motion judge and urged by the defendant.
The point of departure for the resolution of a motion for a
new trial is Rule 30 (b) of the Massachusetts Rules of Criminal
Procedure, which provides that, upon a motion in writing, a
judge "may grant a new trial at any time if it appears that
justice may not have been done." The fundamental principle
established by Mass. R. Crim. P. 30 (b) is that, if it appears
that justice may not have been done, the valuable finality of
judicial proceedings must yield to our system's reluctance to
countenance significant individual injustices.7
Our decisions have crafted a latticework of more specific
standards designed to guide judges' determinations, in various
types of situations, as to whether a new trial should be
ordered. A new trial is required if prejudicial constitutional
error occurred at trial. See Commonwealth v. Martin, 467 Mass.
7The authority of a judge deciding a motion under Mass. R.
Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), is
substantially similar to the authority on a motion under Mass.
R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). See
Commonwealth v. Pring-Wilson, 448 Mass. 718, 732 n.14 (2007),
citing Commonwealth v. Doucette, 408 Mass. 454, 455–456 (1990),
and Commonwealth v. Pope, 392 Mass. 493, 497 (1984) ("A judge
has similar broad discretion to grant a new trial in the
interests of justice under both rules"); Commonwealth v.
Gilbert, 447 Mass. 161, 165-169 (2006) (motions brought under
either rule may result either in new trial or in reduction of
conviction to lesser charged offense).
15
291, 316 (2014); Commonwealth v. Sullivan, 385 Mass. 497, 503
(1982). If a motion for a new trial rests on an unpreserved
claim of nonconstitutional error, a new trial should be granted
only if the defendant demonstrates a "substantial risk of a
miscarriage of justice," Commonwealth v. Childs, 445 Mass. 529,
530 (2005), namely, "a serious doubt whether the result of the
trial might have been different had the error not been made."
Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting
Commonwealth v. Azar, 435 Mass. 675, 687 (2002).8 Newly
discovered evidence warrants a new trial if that evidence "casts
real doubt on the justice of the conviction," in the sense that
the evidence "would probably have been a real factor in the
jury's deliberations." See Commonwealth v. Cowels, 470 Mass.
607, 616-617 (2015), quoting Commonwealth v. Grace, 397 Mass.
303, 305-306 (1986).9
8
The Appeals Court has said, in dicta, that "[w]hen the
basis alleged in the new trial motion is not prejudicial
constitutional error, but some other manifest injustice, then
the determination that justice may not have been done equates
with a substantial risk of a miscarriage of justice."
Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 636 n.9 (2001),
citing Commonwealth v. LeFave, 430 Mass. 169, 171-174 (1999).
But in the decision on which this statement relies, our reason
for applying the "substantial risk of a miscarriage of justice"
standard was that the argument presented had been waived by the
defendant in earlier proceedings. See Commonwealth v. LeFave,
supra at 173-174.
9
For at least two reasons, we do not think that the
standard applicable to motions for a new trial based on newly
16
These specific standards, and others,10 have not eclipsed
the broader principle that a new trial may be ordered if "it
appears that justice may not have been done." This point is
illustrated by our decision in Commonwealth v. Pring-Wilson, 448
Mass. 718 (2007) (Pring-Wilson). The trial judge there excluded
discovered evidence would be appropriate here. First, the basic
facts concerning the defendant's stroke were known to the judge
and the attorneys before the jury had returned a verdict. It is
therefore doubtful that the defendant could "establish that the
evidence was unknown . . . and not reasonably discoverable at
the time of trial." Commonwealth v. Cowels, 470 Mass. 607, 616
(2015), quoting Commonwealth v. Shuman, 445 Mass. 268, 271
(2005). Second, the information as to the stroke that the
defendant suffered during the course of trial does not itself
directly concern the crime of which he stood accused at trial.
In that sense, it is quite unlike the type of evidence that
ordinarily is examined to see if it might have been "a real
factor in the jury's deliberations." Commonwealth v. Cowels,
supra at 617, quoting Commonwealth v. Grace, 397 Mass. 303, 306
(1986). That being said, we do not consider whether, in the
singular circumstances of this case, a new trial would have been
warranted had the jury been informed of the stroke and its
effects on the defendant before they began deliberations.
10
See, e.g., Commonwealth v. Murray, 461 Mass. 10, 20-21
(2011) (where Commonwealth withheld exculpatory evidence not
specifically requested, applicable standard is "the same
standard used to assess the impact of newly discovered
evidence"); Commonwealth v. Daniels, 445 Mass. 392, 404 (2005),
quoting Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992)
(where Commonwealth withheld exculpatory evidence that was
specifically requested, defendant seeking new trial "need only
demonstrate that a substantial basis exists for claiming
prejudice from the nondisclosure"); Commonwealth v. Comita, 441
Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass.
89, 96–97 (1974) (motion for new trial based on ineffective
assistance of counsel must establish "that the behavior of
counsel fell below that of an ordinary, fallible lawyer and that
such failing 'likely deprived the defendant of an otherwise
available, substantial ground of defence'").
17
probative evidence that the victims had histories of violence,
reasoning that the defendant knew nothing of those histories.
See id. at 719. This ruling was correct, since we had not yet
held, in Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005),
that judges would thereafter have discretion to admit such
evidence. The judge in Pring-Wilson nevertheless ordered a new
trial after we decided Commonwealth v. Adjutant, supra, stating
that, in light of the concerns we recognized there, "the
integrity of the defendant's trial was compromised." Pring-
Wilson, supra at 720. We affirmed the grant of a new trial;
although no error had been made and the defendant presented no
newly discovered evidence of his innocence, we could not "say
that the judge's conclusion that 'fairness require[d]' granting
the defendant a new trial was an abuse of her broad discretion
to see that justice is done." Id. at 737 (alteration in
original).
Some guidance as to how judges should decide if "justice
may not have been done," in the absence of error or new
evidence, is provided by our older decision Commonwealth v.
Lombardi, 378 Mass. 612 (1979) (Lombardi). The defendant there
suffered from permanent amnesia, which destroyed his ability to
remember the events of the crime he was charged with committing.
We held that amnesia does not itself render a defendant
incompetent to stand trial; but that "[t]he appropriate
18
test . . . is whether a defendant can receive, or has received,
a fair trial." Id. at 615. We stressed that "[s]uch a question
of fundamental fairness can only be determined on a case by case
basis." Id. at 616. We also provided a non-exhaustive list of
factors to be considered, including
"the nature of the crime, the extent to which the
prosecution makes a full disclosure of its case . . . , the
degree to which the evidence establishes the defendant's
guilt, the likelihood that . . . [a] defense could be
established but for [the defendant's condition], and the
extent and effect of [the condition]."
Id. A judge weighing whether a new trial is warranted in light
of these and similar factors must keep in mind that "[a]
defendant is entitled to a fair trial but not a perfect one,
'for there are no perfect trials.'" Commonwealth v. Graves, 363
Mass. 863, 872-873 (1973), quoting Brown v. United States, 411
U.S. 223, 231-232 (1973). The judge also must focus on the
probable effect of the circumstances on the jury's decision-
making, and not on his or her own "personal assessment of the
trial record," see Commonwealth v. Tucceri, 412 Mass. 401, 411
(1992), in order to "preserve[] . . . the defendant's right to
the judgment of his peers." Id.In sum, extraordinary fact patterns can frustrate even
meticulous efforts to do justice. Situations that are not
encompassed by the more specific standards delineated in our
case law nevertheless may require judges to exercise their
19
"broad discretion to see that justice is done." Pring-Wilson,
448 Mass. at 737. In such cases, judges must determine whether
the defendant "can receive, or has received, a fair trial."
Lombardi, 378 Mass. at 615. This determination must be made "on
a case by case basis," taking into account a number of specific
factors. See id. at 616.11
11
Judges weighing whether justice may not have been done in
those rare cases not governed by more specific standards may, in
some instances, find direction in our body of decisions
reviewing capital convictions pursuant to G. L. c. 278, § 33E.
We have noted certain points of similarity between our authority
under § 33E and that of judges deciding motions for
postconviction relief. See Commonwealth v. Woodward, 427 Mass.
659, 668-669 (1998) (postconviction judge may, and we must,
consider all of the evidence); Commonwealth v. Carter, 423 Mass.
506, 513 (1996) (both § 33E and Mass. R. Crim. P. 25 [b] [2]
provide variety of remedies including reduction of conviction
to lesser charged offense). See also Commonwealth v. Rolon, 438
Mass. 808, 820 (2003), quoting Commonwealth v. Gaulden, 383
Mass. 543, 555 (1981) (decision whether to reduce verdict
"should be guided by the same considerations" in both contexts);
note 7, supra. Importantly, like judges deciding if "justice
may not have been done," we grant relief under § 33E not only
because of errors at trial, but also "for any . . . reason that
justice may require." See Commonwealth v. Colleran, 452 Mass.
417, 431 (2008). In § 33E appeals, we review every issue for --
at a minimum -- a "substantial likelihood of a miscarriage of
justice." "Under that standard, 'a new trial is called for
unless we are substantially confident that, if the error had not
been made, the jury verdict would have been the same.'"
Commonwealth v. Figueroa, 468 Mass. 204, 229 (2014), quoting
Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998). We
never have held that postconviction judges should apply the
"substantial likelihood of a miscarriage of justice" standard to
determine whether a new trial (or another remedy) is warranted.
See, e.g., Commonwealth v. Marrero, 459 Mass. 235, 244 (2011),
quoting Commonwealth v. Williams, 453 Mass. 203, 204–205 (2009)
(ineffective assistance of counsel claims are subject, on § 33E
review, to test "more favorable to a defendant" than that of
20
3. Application. In view of the foregoing principles, we
conclude that the motion judge made no significant error of law
and that he did not abuse his discretion. See Commonwealth v.
Wright, 469 Mass. 447, 461 (2014), quoting Commonwealth v.
Weichell, 446 Mass. 785, 799 (2006).
The motion judge applied essentially the framework we have
just described. He stressed that he was relying on the rule
that a new trial may be ordered if "justice may not have been
done." "Ultimately," the judge wrote, "the [m]otion raises the
issue whether justice may not have been done, given the nearly
unique facts of this case." The judge stated that, in
addressing this issue, he drew "helpful guidance" from our
decision in Lombardi, 378 Mass. at 616, in which we asked
"whether a trial of the defendant would be unfair in a due
process sense." The judge did not assume that the defendant is
entitled to a perfect trial, but rather to one that is
"fundamental[ly] fair[]." He noted also that "[i]t is not for a
judge to say whether a reasonable doubt exists as to the fact or
degree of [the defendant's] guilt after reweighing the evidence,
Commonwealth v. Saferian, supra at 96, applied by postconviction
judges). Nevertheless, where no more specific standard applies,
judges' decisions as to whether justice may not have been done
may benefit from consideration of whether it is possible to be
"substantially confident" that "the jury verdict would have been
the same" if not for a problem that occurred at trial, and from
our cases answering that question in a variety of situations.
21
credibility and arguments in light of what we now know." These
statements correctly describe the applicable law.
The decision that the judge was required to make was a
difficult one. The "nature of the crime" with which the
defendant was charged was heinous. See Lombardi, supra. There
was no suggestion that the prosecution had provided imperfect
"disclosure of its case," or that it had engaged in any
misconduct whatsoever. See id. Moreover, as the judge
recognized, "the Commonwealth's case was strong, particularly
regarding the defendant's motive and contacts with Foxworth."
The evidence about the nature of the defendant's
arrangement with Foxworth was somewhat weaker, however. The
Commonwealth's most direct evidence on this point was provided
by Campbell, the defendant's coworker, who testified that the
defendant eventually told her that "a beating wasn't enough,"
and that (in essence) it would be better if the victim were to
die. Campbell was testifying pursuant to a grant of immunity,
which might have led the jury to question her credibility. And
as cross-examination revealed, she at first told police that the
defendant had never said to her that he wanted the victim
killed. In fact, Campbell did not inform police that the
defendant had wanted Foxworth to kill the victim in any of her
first three interviews with police, or in a twenty-two-page
document that she wrote, after her third interview, detailing
22
her discussions concerning Foxworth with the defendant.
The remainder of the evidence presented by the Commonwealth
arguably was consistent with the defendant's own account. The
jury could have accepted the defendant's explanation that his
frequent conversations with Foxworth were not about a plot to
kill the victim, but rather often concerned Foxworth's wishes
that the defendant help him reconnect with Campbell, or the
defendant's inquiries as to when Foxworth was planning to take
action. Similarly, the jury could have believed that, in late
December, 2005, and early January, 2006, the defendant had
withdrawn from the agreement, as he claimed, and was seeking a
refund of the money he had paid Foxworth. Moreover, they could
have "believe[d] all, some, or none of the testimony of any
witness," including the defendant. See Commonwealth v. Ortiz,
470 Mass. 163, 167 (2014), quoting Commonwealth v. Gomes, 459
Mass. 194, 203 (2011).
Under these circumstances, the likelihood that "[a] defense
could be established" by the defendant, see Lombardi, 378 Mass.
at 616, turned on whether the jury would believe the defendant's
testimony that he had not asked Foxworth to kill the victim.
Various aspects of a witness's testimony on the stand, including
his demeanor, whether his answers are consistent with prior
statements, and whether he appears to be avoiding the questions
asked, can affect the jury's determinations of credibility. See
23
Commonwealth v. Louraine, 390 Mass. 28, 37-38 (1983). We agree
with the motion judge's determination that, in essence, the
"extent and effect" of the defendant's stroke materially
affected his chances of mounting a successful defense. See
Lombardi, supra.The defendant's difficulty understanding questions and
communicating answers on the second day of his testimony are
apparent from the video recording and transcript of that day's
proceedings. A few illustrations among many are reproduced in
the margin.12 The written transcript attaches the annotation
12
The cross-examination of the defendant on that day began
as follows:
Q.: "I'd like to talk to you about your relationship with
Scott Foxworth . . . . You met him prior to his going
away to prison in August of 2002, isn't that correct?"
A.: "Can you ask that again please, I'm sorry."
Q.: "You first met Scott Foxworth prior to August of 2002
when he went to prison for three years?"
A.: "I don't understand what you're asking me."
Q.: "You met Scott Foxworth prior to August of 2002?"
A.: "2002? No."
". . .
Q.: "So, the answer to [the] question, did you meet Scott
Foxworth prior to him going away to prison in August
of 2002, is, yes, right?"
A.: "Yeah, I'm sorry, Adrienne, I've got a headache."
24
"[sic]" to the defendant's testimony seventeen times; no such
annotations appear in the transcription of his testimony on the
previous day, either on direct examination or on cross-
examination. Fifteen times, the defendant asked that a question
be repeated, or expressed confusion about its meaning; this had
happened once on the previous day. Almost three dozen times,
the defendant responded to questions by saying that he did not
know the answer; this, too, had happened once on the previous
day. In other instances, the defendant appeared to answer an
entirely different question from the one that had just been
posed. Many of these exchanges could have suggested deliberate
evasiveness to the jury.13
On the crucial question of the instructions that he had
given to Foxworth, the defendant's testimony was (on his second
day of testimony) incoherent: "I didn't say I wanted him to get
beat . . . . I didn't specifically tell Scott that I wanted him
to beat him. I eventually discussed saying that I wouldn't mind
seeing him get beat but that wasn't until afterward [sic] I had
talked to him and told him that I just wanted him to go talk to
him."
Later, asked about his finances, the defendant said: "I
paid -- I was paying the mortgage. I was paying some expenses
to pay expenses. I was paying the house in Waltham. I was
giving my money some money."
13
Again, a small sample of exchanges is illustrative.
First:
Q.: "[Y]ou knew that when the divorce was final that [the
victim] would be able to have access to your children,
correct?"
25
A.: "I don't understand."
". . .
Q.: "Did you testify yesterday that . . . you contacted
Scott Foxworth because you didn't want Ed around your
children until the divorce was final?"
A.: "My final wasn't until much, much, much later."
Q.: "Do you understand the question that I am asking, Mr.
Brescia?"
A.: "I guess -- I guess I don't."
And subsequently:
Q.: "When did you, uh, give [Foxworth] the green light?"
A.: "Probably prior to [when Foxworth was in the
hospital]. I remember he -- his surgically got
delayed (sic)."
Q.: "So, was it before or after [an argument between the
defendant and his wife] at the Framingham Union
Hospital . . . ?"
A.: "Was what?"
Q.: "When you decided to give Scott Foxworth the green
light?"
A.: "I don't know if it was before and (sic) after; I
don't recall."
And finally:
Q.: "You said that . . . it had to do with the fact that
[the victim] was seeing your kids during the pendency
of the divorce, correct?"
A.: "I don't know."
26
The manner in which the prosecutor framed and delivered her
questions on cross-examination suggested time and again that, in
the prosecutor's view, the defendant was not answering her
questions responsively. On one such occasion, when the
defendant failed to provide an appropriate answer, the
prosecutor said, "Wait. Did you testify here yesterday? Do you
remember that?"
The inference that the pattern of the defendant's testimony
indicated prevarication was pressed more explicitly in the
prosecutor's closing argument, delivered before the defendant's
stroke was discovered. The prosecutor said:
"Let's look at the defendant's testimony. Make no
mistake about it, he wasn't confused by the questions that
were being asked him. He couldn't keep his story straight
from one minute to the next. It's hard to keep track of
what you're saying when you're just making it up as you go
along . . . . He certainly was able to answer the questions
his attorney asked him. Some of the questions I asked him,
answers didn't come easy. To some of them, they didn't
come at all."
Q.: "Well, I'm asking you about what you thought and what
you felt and what you believed; you don't know what
you thought, felt, or believed?"
A.: "What question?"
". . .
Q.: "[I]s it your testimony that your issues with [the
victim] were over his access to your children during
the divorce because he wasn't a suitable role model?"
A.: "What day? I don't know."
27
The prosecutor's argument also drew on the defendant's stated
inability to recall important details:
"[The defendant] didn't remember when he approached
Foxworth. He didn't remember where he approached Foxworth.
He didn't remember when he decided and he didn't remember
when he paid the one half up front . . . . Is that
believable?"
The trial judge's instructions would have permitted the
jury to draw the inferences invited by the prosecutor. "In
determining the credibility of a witness," the judge said, the
jury could consider, among other things, "the demeanor of the
witness as the witness spoke to you from the witness stand," as
well as "the accuracy of the witness'[s] recollection and the
degree of intelligence shown by the witness."
Again, the defendant's request for a new trial posed a
close question. The Commonwealth had painstakingly presented a
powerful case. The damage wrought by the defendant's stroke was
concentrated primarily in the manner and style of his testimony,
rather than its substance. Still, we do not think that the
motion judge's conclusion that a new trial is warranted was an
abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014). The fairness of the defendant's trial was
hampered by an extraordinary confluence of factors: the second
day of the defendant's testimony addressed issues that lay at
the heart of the case against him. In the words of the motion
28
judge, the symptoms of the defendant's stroke were severe enough
on that day to injure his "apparent credibility for medical
reasons unrelated to his actual credibility." Yet those
symptoms were not of a kind that could have prompted the judge
or the attorneys to postpone the remainder of the defendant's
testimony. The defendant's symptoms also would not have
communicated to the jury that his failure to answer questions
cogently was the result of a physical impairment. The fact that
the defendant had been healthy on his first day of testimony
created what the jury could have seen as a suspicious contrast
between the defendant's relative ease in answering his own
attorney's questions and his greater difficulty in answering
those posed by the prosecutor. Finally, it is not likely that
these weaknesses in the defendant's testimony went unnoticed by
the jury, given that they were highlighted by the prosecutor
both during cross-examination and in closing argument.
In the highly unusual circumstances presented, there was no
abuse of discretion in the judge's decision that "it appears
that justice may not have been done."
Order allowing motion for
a new trial affirmed.