Commonwealth v. Tavares ( 2023 )

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SJC-11375
COMMONWEALTH vs. OMAY TAVARES.
Suffolk. October 3, 2022. - February 24, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Homicide. Constitutional Law, Assistance of counsel. Practice,
Criminal, Assistance of counsel, New trial, Capital case.
Evidence, Exculpatory.
Indictments found and returned in the Superior Court
Department on April 1, 2010.
A motion for a new trial, filed on January 7, 2019, was
heard by Beverly J. Cannone, J.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
Elizabeth A. Billowitz for the defendant.
BUDD, C.J. On October 17, 2011, the defendant, Omay
Tavares, was convicted of murder in the first degree in
connection with the January 7, 2010, shooting death of George
2
Thompson.1 In 2019, the defendant filed a motion for a new trial
asserting ineffective assistance based on trial counsel's
failure to investigate exculpatory evidence provided by the
Commonwealth.2 After an evidentiary hearing, the motion judge,
who was not the trial judge, allowed the defendant's motion.
The matter is now before this court on the Commonwealth's appeal
from the motion judge's ruling. We affirm.
Background. We present the relevant factual and procedural
background as taken from the record, reserving certain details
for the discussion.
1. Pretrial. The defendant initially was assigned counsel
from the Committee for Public Counsel Services. However, a
family friend hired trial counsel to represent the defendant for
a flat fee of $5,000, learning only after the fact that counsel
recently had completed a one-year bar suspension for gross
incompetence resulting in his clients' imprisonment.3 In
preparation for what would be his first murder trial as lead
attorney, counsel requested and received court-ordered funds to
1 The defendant also was convicted of unlawful possession of
a firearm, unlawful carrying of a loaded firearm, and unlawful
possession of ammunition.
2 The defendant's direct appeal has been stayed pending
disposition of his motion for a new trial.
3 Counsel disclosed his disciplinary history to the
defendant's family friend only after she confronted him with the
report of his suspension from the Board of Bar Overseers.
3
hire experts in the fields of cell site location information
(CSLI) and ballistics, but did not retain an investigator to
find or speak with witnesses.
On September 23, 2011, approximately two weeks before the
trial was scheduled to begin, the prosecutor advised counsel
that the Boston police department was in possession of a proffer
from a confidential informant containing information about an
alleged third-party shooter involved in the victim's murder.
Counsel was not provided with a redacted copy of the proffer
until October 4, 2011, one day before trial was to begin.4
According to the proffer, two individuals, "H.H.," who was
armed with a Taurus nine millimeter handgun, and "another man,"
went to the victim's apartment intending to rob the victim of
money and marijuana. When the victim lunged for the gun, he was
shot and killed.5 Trial counsel failed to request a continuance
to investigate the information contained in the proffer letter
and failed to inform the defendant that it existed.
2. Trial. The evidence presented to the jury was as
follows. On the evening of January 7, 2010, a light-skinned
male, approximately six feet tall, wearing a hooded sweatshirt
4 It is not apparent from the record why there was a delay
in providing trial counsel with a redacted copy of the proffer.
5 The proffer did not name the other man but described him
as having been arrested for the murder.
4
and skullcap, and identifying himself as "O," came to the
victim's apartment. A conversation between O and the victim
escalated to a loud disagreement, and then O pulled a gun from
his waistband, pointed it at the victim, and fired three shots.
The medical examiner later determined that the victim died from
multiple gunshot wounds to the head and torso. The bullets were
shot from a nine millimeter firearm.
An investigation revealed that the last call the victim
received prior to his death came from the defendant's cell
phone. CSLI data indicated that the defendant's cell phone
activated the cell tower closest to the victim's apartment
building at approximately the same time as the shooting, and a
latent fingerprint recovered from the exterior doorknob of the
victim's apartment belonged to the defendant. Investigators
also recovered a photograph of a hand holding a firearm, taken
on January 14, 2010, from the defendant's cell phone. Two
witnesses who saw the shooter at the victim's apartment on the
night of the killing were shown a photographic array that
included the defendant's photograph, but neither was able to
make a positive identification.
While being interviewed by police, the defendant
acknowledged that he and the victim previously had had a
disagreement over the price at which the victim had sold the
defendant some marijuana. After the interview, the defendant
5
sent a text message to an unknown individual that stated, "Yo, I
got bagged." During a search of the defendant's home, police
recovered marijuana and $500 cash, as well as clothing matching
the description of clothing worn by the individual who came to
the victim's apartment on the night of the shooting. The murder
weapon was not recovered.
At trial, counsel argued that police failed to investigate
other leads, see Commonwealth v. Bowden, 379 Mass. 472 (1980),
and that the defendant had been misidentified as the shooter.6
However, he failed to use any of the information contained in
the proffer that supported these arguments. Indeed, when H.H.,
the man alleged in the proffer to be a third-party culprit,
appeared in court on the first day of jury empanelment and, in
counsel's presence, was ordered by the judge to be available for
trial, counsel did not request a continuance to interview him,
or take any other measures to capitalize on the presence of H.H.
The defendant was convicted of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
cruelty.
3. Posttrial. When the defendant obtained new counsel, he
learned of the proffer letter and moved for a new trial based on
6 To support the misidentification argument, trial counsel
called the defendant's mother, girlfriend, and work supervisor
as witnesses to argue that the defendant's traits and habits
were inconsistent with the description of the shooter.
6
ineffective assistance of counsel. Trial counsel submitted an
affidavit in support of the motion and testified at the
evidentiary hearing. Although he recalled being made aware of
the proffer letter containing potential third-party culprit
evidence, he did not recall investigating it.
The motion judge concluded that trial counsel provided
constitutionally ineffective assistance and allowed the
defendant's motion for a new trial. The Commonwealth timely
appealed.
Discussion. 1. Relevant standards for ineffective
assistance of counsel claim. A judge "may grant a new trial at
any time if it appears that justice may not have been done."
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).
Where a motion for a new trial is based on ineffective
assistance of counsel, the defendant must show that (1) the
"behavior of counsel [fell] measurably below that which might be
expected from an ordinary fallible lawyer" and (2) such failing
"likely deprived the defendant of an otherwise available,
substantial ground of defence." Commonwealth v. Saferian, 366
Mass. 89, 96 (1974).
We review the judge's decision to grant the defendant a new
trial for error of law or abuse of discretion. Commonwealth v.
Lessieur, 488 Mass. 620, 627 (2021). Citing Commonwealth v.
Diaz Perez, 484 Mass. 69, 74 (2020), the defendant contends that
7
we should employ the substantial likelihood of a miscarriage of
justice standard pursuant to G. L. c. 278, § 33E (§ 33E). In
Diaz Perez, we stated that because the case involved murder in
the first degree, we reviewed the judge's decision to grant a
motion for a new trial based on an ineffective assistance claim
under the § 33E standard. Id. However, that was incorrect
because the defendant's direct appeal had been stayed pending
the outcome of the appeal from the decision on the new trial
motion. Id. at 71. As the § 33E standard applies only in
connection with the plenary review of direct appeals from
convictions of murder in the first degree, it was not the
appropriate standard to apply to review the decision to grant a
new trial alone.7 See Commonwealth v. Alvarez, 433 Mass. 93, 101
7 We acknowledge that we have not always specifically stated
that the § 33E standard is applicable when reviewing decisions
on ineffective assistance of counsel claims only where we are
deciding direct appeals from convictions of murder in the first
degree. Compare, e.g., Commonwealth v. Ayala, 481 Mass. 46, 62
(2018), Commonwealth v. Kolenovic, 478 Mass. 189, 192-193
(2017), Commonwealth v. Laurore, 437 Mass. 65, 72 (2002),
Commonwealth v. Frank, 433 Mass. 185, 187 (2001), and
Commonwealth v. Coonan, 428 Mass. 823, 826-827 (1999), with
Commonwealth v. Yat Fung Ng, 489 Mass. 242, 249 (2022), S.C.,
491 Mass. 247 (2023), Commonwealth v. Hung Tan Vo, 427 Mass.
464, 469 (1998), Commonwealth v. Plant, 417 Mass. 704, 715
(1994), and Commonwealth v. Wright, 411 Mass. 678, 682 (1992),
S.C., 469 Mass. 447 (2014). We acknowledge that this has led to
some confusion. However, we are not aware of any other
instances beyond Diaz Perez in which we improperly applied the
§ 33E standard in similar circumstances. We note that the
defendant was not prejudiced by the error as we affirmed the
judge's decision to grant a new trial. See Diaz Perez, 484
Mass. at 70. Moreover, we do not suggest that the case would
8
n.8 (2000), citing Commonwealth v. Hill, 432 Mass. 704, 710 n.14
(2000) ("Where the defendant's motion for a new trial was
allowed and the matter is before us on the Commonwealth's
appeal, we do not apply the substantial likelihood of a
miscarriage of justice standard provided by . . . § 33E").
2. Application. "The duty to investigate is one of the
foundations of the effective assistance of counsel, because
counsel's strategic decisions can be adequate only if counsel is
sufficiently informed about the available options."
Commonwealth v. Long, 476 Mass. 526, 532 (2017). Where an
ineffective assistance of counsel claim is brought, "a
particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments." Strickland v.
Washington, 466 U.S. 668, 691 (1984). That is, although trial
counsel need not descend into every rabbit hole, he or she "has
a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary." Id.Here, counsel was informed of a proffer indicating that
someone other than his client had gone to the victim's home on
the evening of the killing with an intent to rob the victim and
have turned out differently under the correct standard: as the
prevailing party below, the defendant would have benefited from
the deferential error of law or abuse of discretion standard of
review.
9
carrying the same caliber firearm as that used in the killing.
Qualitatively different from a rumor or neighborhood gossip, a
proffer is a written legal agreement between the government and
an individual in which the individual agrees to provide
information about one or more crimes to the government in
exchange for the government's promise that any information
provided by the individual will not be used against him or her
later in court. See United States v. Lopez, 219 F.3d 343, 345
n.1 (4th Cir. 2000). Cf. Commonwealth v. Bolduc, 375 Mass. 530,
540 (1978) (mere speculation that exculpatory facts exist
insufficient to support ineffective assistance claim).
Given the significance of the information, counsel was
required to provide a satisfactory reason for not making use of
it. At the motion hearing, counsel asserted that he did not
request a continuance to investigate the proffer because he
feared his witnesses might not be available at a later date.
The judge rejected this explanation as a reasonable tactical
decision, noting that "there [was] no evidence in the record to
support that premise," and that, at any rate, the defendant's
primary witness "could not provide a confident alibi." The
judge thus concluded that the decision not to investigate fell
"measurably below that which might be expected from an ordinary
fallible lawyer." See Alvarez, 433 Mass. at 101-102 (no
reasonable tactical judgment in failing to obtain or review
10
defendant's medical evidence where such investigation would have
aligned with defense at trial); Commonwealth v. Haggerty, 400
Mass. 437, 442 (1987) ("Failure to investigate the only defense
a defendant has, if facts known to or with minimal diligence
accessible to counsel support that defense, falls beneath the
level of competency expected").
The Commonwealth denies that counsel acted unreasonably,
arguing that the proffer evidence was more inculpatory than
exculpatory because it supported the theory that the defendant
was involved in the shooting. We do not define the term
"exculpatory" as narrowly as does the Commonwealth here.
"[E]vidence is exculpatory if it provides some significant aid
to the defendant's case, whether it [(1)] furnishes
corroboration of the defendant's story, [(2)] calls into
question a material, although not indispensable, element of the
prosecution's version of the events, or [(3)] challenges the
credibility of a key prosecution witness" (quotation and
citation omitted). Commonwealth v. Pope, 489 Mass. 790, 800
(2022).
Here, the proffer evidence had the potential to aid the
defendant in each of these ways. It suggested that H.H. was the
shooter, thereby corroborating the mistaken identity claim; it
undercut the Commonwealth's theory that the defendant was the
sole shooter in the victim's murder; and it challenged the
11
credibility of the two witnesses who reported that only one man
came to the victim's home on the night of the shooting.
The judge additionally concluded that the second prong of
the Saferian test was met, as the proffer evidence would have
bolstered the defendant's Bowden defense by suggesting that the
Commonwealth failed to investigate the possibility that someone
other than the defendant committed the crime,8 and by supporting
a new and compelling third-party culprit defense. See
Commonwealth v. Alcide, 472 Mass. 150, 161-163 (2015) (trial
counsel's failure to introduce significant discovery that
supported defendant's third-party culprit defense constituted
ineffective assistance); Commonwealth v. Phinney, 446 Mass. 155,
162-166 (2006), S.C., 448 Mass. 621 (2007) (trial counsel's
failure to read and use exculpatory police reports constituted
ineffective assistance).
On this point, the Commonwealth contends that even if the
proffer evidence had been used, it would have supported another
theory under which the jury could have chosen to convict the
defendant: felony-murder. This argument is unavailing. The
Commonwealth's theory at trial was that the defendant was the
8 According to the judge's memorandum of decision, at the
time of the murder both H.H. and the confidential informant were
members of a gang that "had frequently been tipped off by
members of the [Boston police department] as to its and
[F]ederal investigations into [the gang's] activities."
12
lone shooter. The prosecutor neither presented evidence of a
joint venture, nor requested instructions on felony-murder.
Thus, what otherwise might have happened if the case had been
tried differently is purely speculative.9 Cf. Commonwealth v.
Quiles, 488 Mass. 298, 306-307 (2021), cert. denied, 142 S. Ct.
1237 (2022) (conviction upheld where jury were instructed on and
had clear opportunity to consider alternate theory of felony-
murder even though defendant was not charged with predicate
felony).
The judge noted that the Commonwealth's evidence against
the defendant was "strong," but "not overwhelming." Where, as
here, use of the proffer evidence could have raised a reasonable
doubt as to whether the defendant murdered the victim, we cannot
say that the judge erred or abused her discretion in concluding
that counsel's assistance constitutionally was ineffective.
Order allowing motion for a
new trial affirmed.
9 The Commonwealth also argues that the proffer would have
been inadmissible at trial because it contains multiple layers
of hearsay. Regardless of its admissibility, on which we do not
opine, the proffer contained evidence that the defendant could
have used in the preparation of his defense.