Commonwealth v. Laguer , 89 Mass. App. Ct. 32 ( 2016 )

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12-P-1785 Appeals Court
COMMONWEALTH vs. BENJAMIN LAGUER.
No. 12-P-1785.
Worcester. November 18, 2015. - January 29, 2016.
Present: Cohen, Grainger, & Wolohojian, JJ.
Practice, Criminal, New trial. Deoxyribonucleic Acid.
Indictments found and returned in the Superior Court
Department on August 4, 1983.
A motion for a new trial, filed on April 28, 2011, was
heard by Richard T. Tucker, J.
John H. LaChance for the defendant.
Sandra L. Hautanen, Assistant District Attorney, for the
Commonwealth.
GRAINGER, J. On January 30, 1984, Benjamin Laguer was
convicted by a jury in Superior Court of unarmed robbery,
breaking and entering in the nighttime with intent to commit a
felony, assault and battery, and aggravated rape.1 On appeal
1
His convictions were affirmed by this court. See
Commonwealth v. Laguer, 20 Mass. App. Ct. 965 (1985).
2
from a denial of the latest in a long series of motions2 for a
new trial, the defendant argues that the motion judge erred in
finding that certain evidence, specifically testimony from the
victim's caretaker and deoxyribonucleic acid (DNA) test results,
did not warrant a new trial, and that he also erred in
concurrently allowing the Commonwealth's motion to dismiss the
defendant's latest motion for a new trial due to fraud on the
court.
As was the case in previous motions considered in the
Superior Court, then reviewed by this court and by the Supreme
Judicial Court, the credibility of the defendant as well as that
of the witnesses and the evidence presented on his behalf is
central to the result. Accordingly we review the motion judge's
recitation of findings, as well as the protracted history of
this case, with emphasis on the degree of trustworthiness
underlying the evidence proffered to support the defendant's
claim "that justice may not have been done." Mass.R.Crim.P.
30(b), as appearing in 435 Mass. 1501 (2001).
2
The parties refer to this as the defendant's ninth motion
for a new trial; eight other motions with that precise caption
are not apparent on the record. Denials of his previous motions
have been affirmed by this court and the Supreme Judicial Court.
See Commonwealth v. Laguer, 410 Mass. 89 (1991); Commonwealth v.
Laguer, 36 Mass. App. Ct. 310 (1994); Commonwealth v. Laguer, 46
Mass. App. Ct. 1108 (1999); Commonwealth v. Laguer, 65 Mass.
App. Ct. 612 (2006); Commonwealth v. Laguer, 448 Mass. 585(2007).
3
Background. The trial. The jury found that the defendant
broke into the apartment of a fifty-nine year old woman,
brutally assaulted her, and raped her over an eight-hour period.
In so doing the jury rejected a defense of misidentification.
The identification evidence at trial was that the victim
initially told the police she was unable to identify the
perpetrator, only describing him as a short black male. The
following day, however, she told the police that her assailant
was the defendant, who lived in the next door apartment.3 She
also identified the defendant from a photograph array, and
identified him as her assailant at trial.
Before trial, and because the victim had a history of
mental health treatment, the defendant moved to obtain evidence
of her mental health condition in order to determine her ability
to testify. The trial judge privately reviewed the victim's
treatment records for the six-month period surrounding the
attack and her identification of the defendant, and determined
that the records provided no basis to question the victim's
competency to testify. However, the trial judge permitted the
defendant to question the victim about her mental condition and
3
The victim further testified that she had seen the
defendant several times going into the apartment next door. She
also testified that she had not identified him initially because
he had threatened to kill her if she did so.
4
any medication she was taking at the time of the attack and the
identification.
No physical evidence linking the defendant to the crime
scene was introduced at trial.4 After a jury found him guilty of
all charges, the defendant was sentenced to life on the rape
charge and, on the other charges, received lesser sentences that
ran concurrently with his life sentence.
Posttrial proceedings. Direct appeal. The defendant
appealed his convictions, arguing that the trial judge committed
an abuse of discretion in denying his request for a psychiatric
examination of the victim, violated his constitutional right to
confrontation, committed error in allowing the prosecutor's
reference during closing arguments to apparently matching socks
found in the victim's apartment and the defendant's apartment,
committed error in not following the model alibi charge pursuant
to Commonwealth v. McLeod, 367 Mass. 500, 502 n.1 (1975), and
committed error in the identification evidence charge. This
court affirmed the judgments of conviction. Commonwealth v.
4
The police had collected several items stained with blood
and bodily fluids at the scene of the crime. Tests conducted to
match the defendant's blood type with any of the bodily fluids
found at the scene were inconclusive. It was later learned that
the defendant had deliberately contaminated the saliva sample
obtained for the purpose of comparison with fluids obtained at
the scene. Other physical evidence included fingerprints that
were not the defendant's, found on the base of a telephone in
the victim's apartment.
5
Laguer, 20 Mass. App. Ct. 965, 966 (1985). The Supreme Judicial
Court denied the defendant's request for further appellate
review. Commonwealth v. Laguer, 396 Mass. 1103 (1985).
Petition for a writ of habeas corpus. Subsequently, the
defendant filed a petition for a writ of habeas corpus, which
was summarily dismissed by the Federal District Court. See
Laguer vs. Bender, U.S. Dist. Ct., No. 86-1237-WF (D. Mass. Nov.
8, 1988).
1989 motion for a new trial. On February 24, 1989, the
defendant filed a motion for a new trial based on ineffective
assistance of trial counsel, and also asserting that the jury
were infected with racial bias. The defendant's claim of
ineffective assistance related, at least in part, to trial
counsel's failure to obtain a pretrial test of the defendant's
blood type, a subject to which we shall return below. See note
4, supra; notes 10 and 11, infra. On direct appellate review
the Supreme Judicial Court vacated the trial judge's denial of
the motion for a new trial and remanded the case "solely for the
purpose of conducting an evidentiary hearing and making a
determination with respect to the truth of [a juror's] affidavit
in so far as it describes ethnically oriented statements
attributed to jurors." Commonwealth v. Laguer, 410 Mass. 89, 99
(1991). The affidavit in question, submitted by juror Nowick,
"described the jury's deliberations as plagued by bigoted
6
remarks about the defendant, who was ethnically Hispanic."
Commonwealth v. Laguer, 36 Mass. App. Ct. 310, 311 (1994).
On remand, the trial judge conducted an evidentiary hearing
at which the defendant called four jurors, including Nowick, to
testify. Under oath Nowick repudiated5 most of the assertions in
his affidavit. Id. at 312. After other witnesses made
contradictory statements,6 the judge found that no offending
statements had been made, and also determined that Nowick had
been subject to "serious lobbying by" the defendant's associates
and had "bec[o]me personally involved in [the defendant]'s
cause."7 Accordingly the judge again denied the motion for a new
trial. This court affirmed. Id. at 315.
1997 motion for a new trial. On May 22, 1997, the
defendant filed another motion for a new trial, claiming his
counsel had been ineffective because he employed peremptory
challenges to strike women from the jury. In an unpublished
5
"Nowick acknowledged that words in his affidavit such as
'invectives,' 'plagued,' 'relentless,' 'bombarded,' 'tainted,'
and 'blatant,' were not in his customary vocabulary, and he
disavowed the idea of proceedings suffused with racial
epithets." Commonwealth v. Laguer, 36 Mass. App. Ct. at 312.
6
Another juror denied racist remarks attributed to him by
Nowick. That juror, however, attributed racist remarks to
Nowick and to "one or two women jurors -- except there were no
women on the jury." Commonwealth v. Laguer, 36 Mass. App. Ct.
at 312.
7
In an interview with the court's investigator Nowick
stated that he "felt like he had been baited and hooked."
7
memorandum and order pursuant to our rule 1:28, we affirmed the
denial of that motion by a different judge of the Superior
Court, noting that the issue had been waived both at trial and
in previous posttrial proceedings and that, rather than
resulting from negligence or incompetence, striking women from
the jury was evidently a strategic decision by counsel from
which the defendant was likely to benefit in a trial involving
"a violent and protracted sexual assault on a fifty-nine year
old woman." See Commonwealth v. Laguer, 46 Mass. App. Ct. 1108(1999).
Motion for DNA testing. On January 13, 2000, the defendant
moved for DNA testing of the physical evidence.8 Due to the
limited amount of biological material available for testing,
another Superior Court judge ordered the DNA analyst to conduct
the testing with great caution and described in thorough detail
how the samples should be handled, transported, and divided.
Both parties were allowed to designate a representative to
observe any testing.
In two reports dated February 4, 2002 and March 21, 2002,
the defendant's designated testing facility concluded that the
8
DNA testing became available in the late 1980's and the
Supreme Judicial Court first considered the admissibility of
test results comparing the DNA of a criminal defendant with DNA
found at a crime scene in Commonwealth v. Curnin, 409 Mass. 218(1991).
8
defendant could not be eliminated as the source of the
biological fluids found on the victim's pubic hair "because he
possesses all of the obligate genotypes and/or alleles . . .
identified in that" pubic hair sample.9 The reports indicated
that the array of possible genotypes from the tested pubic hair
sample "occurs in less than one out of 100 million members of
the Caucasian and Black populations and less than one out of 10
million members of the Mexican American population." The
facility's reports therefore concluded that "[t]hese findings
fail to support [the defendant]'s claim of factual innocence in
the rape."
Admission of evidence tampering. At a parole board
hearing held in 2003, the defendant admitted that in advance of
his trial he had mixed his saliva with that of another inmate
before being swabbed for testing. Commonwealth v. Laguer, 65
Mass. App. Ct. 612, 617 n.9 (2006).10 The evidentiary impact of
the falsified sample may be postulated from the fact that the
pretrial testing produced inconclusive results, while a
9
"Evidence that a defendant is not excluded could suggest
to the jury that a 'link would be more firmly established if
only more [sample] were available for testing.'" Commonwealth
v. Cameron, 473 Mass. 100, 106 (2015), quoting from Commonwealth
v. Nesbitt, 452 Mass. 236, 254 (2008).
10
As noted above, after submitting the falsified saliva
sample to the Commonwealth, the defendant argued in his 1989
motion for a new trial that his trial counsel had been
ineffective for failing to obtain a blood test.
9
posttrial blood test found both the victim's and the defendant's
blood types on a sock used to gag the victim.11
2004 motion for a new trial. The defendant filed another
motion for a new trial on February 11, 2004 arguing that the
Commonwealth failed to disclose an exculpatory fingerprint
report prior to trial. The report in question indicated that
four prints lifted from the telephone base, the cord of which
was used to bind the victim's hands, did not match the
defendant's fingerprints. See note 4, supra. The defendant
obtained the report in 2001, by which time the back page of the
report and the fingerprint impressions themselves were missing.
Another Superior Court judge denied the motion; this court
affirmed the denial, as did the Supreme Judicial Court on
further appellate review. See Commonwealth v. Laguer, 65 Mass.
App. Ct. 612 (2006); Commonwealth v. Laguer, 448 Mass. 585(2007). The Supreme Judicial Court pointed out that "the lack
of evidence that the fingerprints were left on the telephone at
the time of the crime deprived them of probative value."
Commonwealth v. Laguer, 448 Mass. at 592-593. See Commonwealth
v. Laguer, 65 Mass. App. Ct. at 619-622. In addition to the
11
The posttrial blood test indicated the defendant's blood
type to be "B." The victim's blood type was "O." The trial
judge, who ruled on the 1989 motion for a new trial, found that
the posttrial test detected "both blood types 'O' and 'B' on the
sock" used to gag the victim. Commonwealth v. Laguer, 410 Mass.
89, 92 (1991).
10
fact that the fingerprints did not exculpate the defendant, the
record demonstrates that at trial the defendant took full
advantage of the lack of available physical evidence linking him
to the crime.12
Current motion for a new trial. On April 28, 2011, the
defendant filed his most recent motion for a new trial, which
was denied by the motion judge. The defendant's appeal from
that denial is currently before us.
Discussion. Newly discovered evidence. The defendant
based the current motion in part on the alleged statements of a
newly discovered witness, Annie K. DeMartino. The defendant
asserts that his representative discovered DeMartino's potential
testimony long after trial either through meeting her
coincidentally at a political fundraiser, or by reading an
article in a local newspaper written by a reporter who
interviewed her.13
12
In his closing remarks to the jury, defense counsel
emphasized: "There is not one piece of evidence, physical or
otherwise, that puts [the defendant] in [the victim's]
apartment." Commonwealth v. Laguer, 448 Mass. at 596. This
argument, manifestly, was made possible in part by the
contaminated saliva sample referenced above.
13
The contradictory explanations how the defense acquired
knowledge of DeMartino are contained in two separate documents.
In his supplemental memorandum in support of the current motion,
the defendant claims that his current counsel "coincidentally
met [DeMartino] at a political fundraiser in the fall of 2006"
where "DeMartino expressed that she knew of [the defendant]'s
case." In his brief to this court, the defendant claims that
11
DeMartino's proffered testimony is presented in the form of
two unsigned and unverified transcripts of taped interviews
conducted by the defendant's representatives on February 13,
2007 and April 18, 2008.14 Her presumed testimony, gleaned from
the transcripts, would be that she was a health care aide who
assisted the victim at the halfway house where the victim
resided for two years while suffering from aggravated mental
distress following the crime. This period encompassed the time
of the trial; DeMartino was one of the caregivers who
accompanied and comforted the victim in court. In the
transcripts, DeMartino alleges that the victim suffered from
delusions and fear, frequently confusing other dark skinned
males as her attacker. DeMartino also alleges a friendship
between the victim and an Hispanic male other than the
defendant.
The motion judge determined that the proffered testimony
could have been discovered with reasonable diligence at the time
"DeMartino was discovered by a member of the press" who
"interviewed her . . . [and] wrote an article about it in a
local paper in Worcester County." After the defendant's counsel
at the time "learned of this he arranged to interview
[DeMartino] as well."
14
In the transcript dated April 18, 2008 it is unclear who
is interviewing DeMartino. Both transcripts are unverified
although the defendant was aware of the requirement to present
DeMartino's testimony in the form of an affidavit and, according
to the April 18, 2008 transcript, communicated this requirement
to DeMartino herself.
12
of trial, see Commonwealth v. Grace, 397 Mass. 303, 305 (1986);
Commonwealth v. LeFave, 430 Mass. 169, 176 (1999), and was also
discoverable during the extensive period of posttrial
proceedings recounted above, stating: "The prominence of the
issue of [the victim's] competency, and the attention devoted to
it by both counsel and the court, belies any argument that the
defendant was not acutely aware of this issue." We agree; a
single request for the identities of the victim's caregivers was
all that was required.
The motion judge also found that "the purported testimony
of DeMartino, as submitted in the motion record, lacks
attributes of reliability." The statements are unsworn, indeed
the transcripts are unsigned. Assuming DeMartino to be their
source, there is no indication that she reviewed and approved
the transcripted versions. We discern no error in the judge's
determination, especially in the context of the prior
proceedings and submissions.
The motion judge also concluded that there was no
substantial risk that the proffered evidence, admitted at trial
and credited by the jury, would have caused the jury to reach a
different verdict. Commonwealth v. Lo, 428 Mass. 45, 53 (1998).
The judge observed that the testimony would have shown, if
anything, that while the victim was friendly with and unafraid
of men of color prior to the attack, she became fearful of men
13
of color thereafter. The judge did not err in finding that the
defendant was not likely to benefit from such evidence.
DNA test results. After successfully obtaining an order
for DNA testing in 2001, the defendant now asserts that the
inculpatory results entitle him to a new trial because they are
based on a faulty testing procedure. The motion judge found
that there was no evidentiary support for the proposition that
the testing was flawed. Again, there was no error in the
judge's ruling. The allegation of potential migration of DNA
from the defendant's clothing to the pooled sample of collected
pubic hair and fluid samples is simply speculation based on the
conclusory argument that the defendant is innocent.
Moreover, even if the postconviction DNA test results could
be called into question, it would not constitute exculpatory
evidence warranting a new trial. "[D]isbelief of [evidence]
does not constitute evidence to the contrary." Kunkel v. Alger,
10 Mass. App. Ct. 76, 86 (1980). Inculpatory DNA evidence was
not introduced at trial; indeed, no such evidence was available
in 1984. The defendant was convicted on the basis of witness
identification and circumstantial evidence sufficient to prove
his guilt beyond a reasonable doubt. Undermining the
postconviction DNA test results do not detract from that
14
reality.15 The motion judge did not err in concluding that
discrediting the inculpatory DNA test result would not "cast[]
real doubt on the justice of the conviction." Commonwealth v.
Lo, 428 Mass. at 53, quoting from Commonwealth v. Grace, 397
Mass. at 305.
Alleged pretrial plea bargain offer. Among the exhibits
offered in support of the current motion for a new trial, the
defendant included a copy of a document purported to be a letter
sent by the assistant district attorney in charge of the case
(prosecutor) to his trial counsel agreeing to recommend a
twenty-year sentence in exchange for a guilty plea.16 The
Commonwealth asserts, and the motion judge found, that the
letter is "inauthentic." The former prosecutor has submitted an
affidavit that states in relevant part: "I am certain that no
plea offers were ever made to [the defendant]." The defendant's
trial counsel submitted two affidavits, one on April 29, 2010
stating he had "discussed" a plea deal for a twenty-year
15
This case does not fall into the category of cases in
which a reversal of evidentiary reliability warrants a new
trial. See, e.g., Commonwealth v. Liebman, 388 Mass. 483, 489
(1983) (discrediting key witness's testimony); Commonwealth v.
Sullivan, 469 Mass. 340, 352 (2014) ("negat[ing] a key piece of
physical evidence").
16
The apparent import of this document is to support the
defendant's claim that he was unwilling to plead guilty to a
crime he did not commit, even if doing so would avoid the
possibility of a life sentence.
15
sentence with the prosecutor, and one on September 6, 2011
specifying he had never received a formal plea offer in writing
from the prosecutor. In response to these sworn statements the
defendant ineffectually asserts, without any basis, that "[i]t
may be inferred that [his trial counsel] signed an affidavit
drafted by prosecutors to advance their own agenda." Leaving
aside this document's irrelevance to any issue presented by the
current motion for a new trial, we discern no reason to disturb
the motion judge's finding that it is fraudulent.
Conclusion. A motion for a new trial is addressed to the
sound discretion of the judge. Commonwealth v. Clerico, 35
Mass. App. Ct. 407, 411 (1993). The judge's discretion includes
the flexibility to consider the case as a whole, specifically
"to consider in the interest of justice all evidence that might
bear on the issues presented." Commonwealth v. Grace, 397 Mass.
at 312. We conclude that the motion judge's dispassionate and
careful consideration of the defendant's motion and of the
lengthy history of this case resulted in the proper exercise of
discretion, and that there was no error.17
Order denying motion for new
trial affirmed.
17
In view of our assessment of the defendant's failure to
support his motion for a new trial with credible evidence or a
basis in law, we need not reach the motion judge's additional
finding of fraud on the court.