Commonwealth v. Smith , 90 Mass. App. Ct. 261 ( 2016 )

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15-P-413 Appeals Court
COMMONWEALTH vs. BRIAN SMITH.
No. 15-P-413.
Suffolk. June 9, 2016. - September 15, 2016.
Present: Carhart, Maldonado, & Henry, JJ.
Practice, Criminal, New trial, Disclosure of
evidence. Privileged Communication. Evidence, Privileged
communication, Motive, Disclosure of evidence. Attorney at
Law, Attorney-client relationship. Cooperation with
Government Agents.
Indictments found and returned in the Superior Court
Department on May 3, 2005.
A motion for a new trial, filed on February 21, 2012, was
considered by Janet L. Sanders, J.
Michelle Menken for the defendant.
Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
CARHART, J. The defendant appeals from the denial of his
motion for a new trial without an evidentiary hearing. Because
we conclude that the defendant has raised several substantial
2
issues, we remand the case to the Superior Court for an
evidentiary hearing.
Background. 1. The trial. On August 18, 2006, the
defendant was convicted by a Suffolk County Superior Court jury
of armed home invasion, armed assault with intent to murder, and
unlawful possession of a firearm (the Suffolk County case). His
convictions were affirmed on appeal. Commonwealth v. Smith, 75
Mass. App. Ct. 196 (2009) (Smith I), S.C., 458 Mass. 1012
(2010). We summarize the facts underlying the convictions,
which are set forth in full in Smith I.
On the evening of March 13, 2005, Kenneth Lowe and his
girlfriend Niki Semnack were in Lowe's apartment in the
Charlestown section of Boston, where Lowe had spent much of the
evening ingesting "crack" cocaine. Around 11:30 P.M., Lowe
heard a knock at the door and saw the defendant through the
peephole. Lowe and the defendant had been friends for about
eight months, and they usually smoked crack cocaine together.
Lowe opened the door, and the defendant told him that a friend
was downstairs and wanted Lowe to "take him up the street." 1
Lowe declined, and, at that point, a white man wearing a
1
"Although Lowe was not in the business as a crack cocaine
supplier, he would routinely acquire the drug for other people,
including the defendant, in exchange for a share of the drugs.
When the defendant visited Lowe for crack cocaine he would
frequently bring other people with him and Lowe was happy to act
as a runner for their crack purchases as well." Id. at 197.
 3
"hoodie" with a bandana covering his face ran up the stairs
holding a large silver gun. Smith I, supra at 197.
"Lowe immediately tried to close the door, but the
defendant placed his foot in the doorway, leaving a two- to
three-inch gap. Lowe observed the masked man reach over
the defendant and insert the gun into the apartment through
the gap in the door. The masked man either said, 'You
mother f[-]cker' or, 'get the mother f[-]cker.' The
defendant mumbled something and then both he and the masked
man pushed on the door to open it. Lowe was able to keep
the door from opening further.
"The masked man then pulled the gun out of the door crack
and as he did so, the gun went off, but the shot did not
enter the apartment. Lowe tried to slam the door shut, but
was unable to close it because the security chain was
caught between the door and the frame. Lowe then heard the
defendant say, 'what the f[-]ck you doing man.' He heard
them have a brief discussion and then they started pushing
on the door again. As Lowe started to tire, they managed
to open the door enough to insert the gun between the door
and the frame. The gunman was trying to angle the gun
towards Lowe's head." Id. at 197-198.
The gun fired again and the bullet hit a picture on the
wall. Lowe managed to close and lock the door. He heard two
people leave the building then he called the police. Id. at
198.
2. Posttrial discovery. One week earlier, according to
the Suffolk County district attorney's office (Suffolk district
attorney), Lowe had witnessed the homicide of his and the
defendant's mutual friend. The Suffolk district attorney
believed that the defendant "wanted to kill Lowe as a direct
result of Lowe's capacity as a witness to th[at] homicide." The
Suffolk district attorney agreed not to prosecute Lowe in
4
connection with three drug transactions he had facilitated
between February and March, 2005, in exchange for Lowe's
testimony in that murder case, which testimony helped the
Suffolk district attorney obtain an indictment against someone
other than the defendant.
About one week after the home invasion, Lowe agreed to help
Massachusetts State police officers investigating drug dealing
in Charlestown. In or around May 6, 2005, while the defendant
was being held on the Suffolk County case, a State police
lieutenant shared with the prosecutor in that case "credible
information that [the defendant] was planning on posting the
100k [$100,000] bail . . . and then getting out and murdering
Kenny Lowe." By this time Lowe already had been "sent out of
state for safety concerns." On May 26, 2005, a Boston police
detective applied for a warrant to search the defendant's
residence for evidence relating to a 1991 homicide, based upon
information he had received from Lowe in April, 2005, and Lowe
"received promises of protection at the time as a package deal
for his help . . ."
Meanwhile, the State police and the Norfolk County district
attorney's office (Norfolk district attorney) were investigating
the defendant's involvement in an October 21, 2004, armored car
robbery and shooting. On November 15, 2005, Lowe returned to
the Commonwealth and testified before a Norfolk County grand
5
jury about the defendant's actions following the robbery.
Indictments issued charging the defendant with armed robbery,
assault with intent to murder, assault and battery by means of a
dangerous weapon, larceny of a motor vehicle, various firearm
offenses, and being an accessory before the fact (the Norfolk
County case).
3. New trial motion. On February 21, 2012, the defendant
filed a motion for a new trial arguing that, in violation
of Brady v. Maryland, 373 U.S. 83 (1963), the Commonwealth had
failed to disclose before trial that Semnack was poised to
testify in a murder trial the day after the home invasion, that
Lowe was cooperating with, and receiving benefits from, the
Commonwealth in connection other cases involving the defendant,
and that the State police were recording the defendant's
telephone calls from jail. The defendant alleged that the
courtroom was closed in violation of his right to a public
trial, and that new evidence regarding Lowe's drug use on the
night of the incident casts serious doubt on Lowe's credibility.
Following discovery and a nonevidentiary hearing, a judge other
than the trial judge made written findings and denied the motion
on the papers.
Discussion. 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). "The judge may
6
decide the motion on the basis of affidavits without further
hearing, 'if no substantial issue is raised by the motion or
affidavits.'" Commonwealth v. Stewart, 383 Mass. 253, 257
(1981), quoting from Mass.R.Crim.P. 30(c)(3), 378 Mass. 901
(1979). Deciding whether to grant a new trial, or "whether to
decide the motion on the basis of affidavits or to hear oral
testimony, is left largely to the sound discretion of the
judge[,]" ibid., whose decision "will not be reversed unless it
is manifestly unjust or infected with prejudicial constitutional
error." Commonwealth v. Grant, 440 Mass. 1001, 1002 (2010).
"In determining whether a 'substantial issue' meriting an
evidentiary hearing . . . has been raised, we look not only at
the seriousness of the issue asserted, but also to the adequacy
of the defendant's showing . . ." Stewart, supra at 257-258.
Here, the defendant submitted documents reflecting Lowe's heavy
involvement with the Commonwealth as a witness against the
defendant, the transcript of Semnack's testimony in the
unrelated trial, an affidavit from Stephen Reznikow (an inmate
who contradicts Lowe's testimony), and copies of recordings made
and listened to by the State police of the defendant's
conversations while in jail. The judge found these materials
insufficient to raise a substantial issue regarding the
Commonwealth's compliance with its discovery obligations, Lowe's
credibility and violations of the defendant's attorney-client
7
privilege. We will address the issues separately, beginning
with the one we find most troubling.
1. Monitored telephone calls. On October 25, 2004,
Attorney Charles Rankin sent letters to the Norfolk district
attorney and the State police stating that he represented the
defendant in connection with the Norfolk County case. Attorney
Rankin previously had represented the defendant in a Federal
case, as well. See United States v. Smith, 101 F.3d 202 (1st
Cir. 1996). In 2010, the Norfolk district attorney provided
successor defense counsel in the Norfolk County case with copies
of telephone calls made by the defendant and recorded by the
State police while the defendant was being held in the Suffolk
County case. In a call recorded on May 3, 2005, the defendant
and Attorney Rankin discussed the Suffolk County case. The
defendant describes the events surrounding the home invasion,
along with what turned out to be his defense at trial. The
defendant never spoke to the police or gave a statement
regarding the Suffolk County case, and he did not testify at
trial.
The motion judge found that the recording did not raise a
substantial issue with respect to the defendant's Sixth
Amendment rights because Attorney Rankin did not represent him
in the Suffolk County or Norfolk County cases and "there is no
evidence that these recordings were known to any Suffolk County
8
prosecutor" at the time of trial. While it is true that Rankin
did not represent the defendant in June, 2007, when he was
arraigned in the Norfolk County case, there is no dispute that
he had represented the defendant in October, 2004, and the
record shows that he continued to represent the defendant in
May, 2005. 2 See Commonwealth v. Grace, 397 Mass. 303, 307 (1986)
("we regard ourselves in as good a position as the motion judge
to assess the trial record" when she did not preside at the
trial). Where, as here, the defendant has exercised his right
to remain silent and to hold the Commonwealth to its burden of
proof, he "has 'a right to keep secret' from others" his theory
of defense at trial. Matter of a Grand Jury Investigation, 437
Mass. 340, 351 (2002), quoting from Matter of a John Doe Grand
Jury Investigation, 408 Mass. 482 (1990). The communication was
privileged. See Hatton v. Robinson, 31 Pick. 416, 421 (1833)
(the attorney-client privilege "extends to all communications
made to an attorney or counsellor, duly qualified and authorized
as such, and applied to by the party in that capacity, with a
view to obtain his advice and opinion in matters of law, in
relation to his legal rights, duties and obligations"). The
prospect of the Commonwealth having pretrial access to it
2
Records show that Attorney Rankin visited the defendant in
jail in March, 2005, and that the defendant called Rankin's
office several times between March, 2005, and June, 2005.
9
"touches on the core of the right to counsel." 3 Commonwealth
v. Fontaine, 402 Mass. 491, 496 (1988).
Although the judge found no evidence that the recordings
were known to the Suffolk district attorney at the time of
trial, there is evidence that, within days of recording the
privileged communication, the State police shared with the
Suffolk district attorney, who was prosecuting the defendant,
information it likely had gleaned from the defendant's telephone
calls. The trial prosecutor documented the State police telling
him about a threat to Lowe, but he did not state, and no
affidavit addresses, whether the State police shared any other
information with him. There is no evidence that the prosecutor
did or did not inquire further after the lieutenant was somewhat
vague about the source of his information, but if the State
police also relayed the substance of the May 3, 2005,
conversation, then the Commonwealth had "an improper
advantage." Id. at 497. The Suffolk district attorney did not
offer an affidavit or any other evidence in support of its
argument that there had not been "irremediable prejudice to the
3
Absent an evidentiary hearing we do not know whether or
when the State police listened to this conversation, but there
is no question that the State police should have stopped
listening as soon as it realized that it had recorded a
conversation between the defendant and his attorney. At oral
argument, neither party was able to explain to us how a
conversation between the defendant and his attorney was
recorded.
10
defendant," ibid., and absent a hearing, as the motion judge
aptly noted, we "don't know who did [the recording] and what
they d[id] with the information."
"In our view, the judge was too quick in finding" that the
defendant had not raised a substantial issue regarding the
recorded conversation. Commonwealth v. Delacruz, 61 Mass. App.
Ct. 445, 450 (2004). We agree with the defendant that he is
"entitled to an evidentiary hearing where we get to the bottom
of how in the world these officers were listening to what are
obviously attorney-client phone calls," and whether they shared
privileged information with the Suffolk district attorney.
2. Brady claims. Sometime after trial, the defendant
discovered that Semnack was scheduled to appear as a witness for
the Suffolk district attorney in an unrelated homicide trial on
the day after the home invasion. The defendant argues that he
could have used this evidence, had it been disclosed before
trial, to argue that Semnack was the target of the assault. The
motion judge found that the evidence was not relevant because
motive did not play a part in the Commonwealth's case;
therefore, "the identity of the potential target of the attack -
- whether it was Lowe or Semnack -- was irrelevant."
We think that this analysis is flawed, because it does not
matter that motive was not a part of the Commonwealth's case.
"Although the Commonwealth is not required to prove that a
11
defendant had a motive for committing a crime, if there is
evidence of motive, that evidence is admissible" and should be
available to both sides. 4 Commonwealth v. Borodine, 371 Mass. 1,
8 (1976), cert. denied, 429 U.S. 1049 (1976). If the
Commonwealth failed to disclose Semnack's witness status, then
the defendant was deprived of the ability to present evidence in
support of his claim that he was only there to buy drugs.
Evidence of a motive to harm Semnack could have "round[ed] out
the jury's picture of [the] case and shed[] light on other
evidence" offered by the defendant to show that the gunman acted
alone, Sidney Binder, Inc. v. Jewelers Mut. Ins. Co., 28 Mass.
App. Ct. 459, 462 (1990), and, "[i]f evidence 'provides some
significant aid to the defendant's case, whether it furnishes
corroboration of the defendant's story, calls into question a
material, although not indispensable, element of the
prosecution's version of the events, or challenges the
credibility of a key prosecution witness,' that evidence should
reach the defendant's hand before trial, if at all
possible." Commonwealth v. Daniels, 445 Mass. 392, 401-402
(2005), quoting from Commonwealth v. Ellison, 376 Mass. 1, 22
4
Indeed, if the Commonwealth believed that Lowe was
targeted because he was a witness to a homicide, then it should
have disclosed evidence which could support a similar motive to
attack Semnack.
12
(1978). On remand, the defendant should be allowed to explore
this theory and whether the information was disclosed. 5
For the same reasons, the defendant is entitled to probe
the Suffolk district attorney's knowledge of and alleged failure
to disclose information regarding promises, rewards, and
inducements given to Lowe in exchange for his cooperation in
other cases involving the defendant. Lowe denied at trial that
he was promised or provided with anything in exchange for his
testimony in the Suffolk County case other than relocation
assistance, travel reimbursement, and compensation for lost
work. Yet, postconviction discovery reveals that (1) Lowe was
promised police protection "as a package deal" for helping the
Boston police and the Suffolk district attorney in unrelated
cases involving the defendant, (2) the Suffolk district attorney
was paying one-half of the cost of Lowe's housing after the home
invasion, and (3) Lowe was not prosecuted by the Suffolk
district attorney for facilitating three drug transactions in
exchange for his testimony regarding the murder of his and the
defendant's mutual friend. The defendant argues that Lowe also
may have received assistance from the Norfolk district attorney
and the Federal Bureau of Investigation.
5
Trial counsel's affidavit in support of the motion for a
new trial does not address any of the discovery issues raised by
the defendant.
13
Although "a prosecutor has no duty to investigate every
possible source of exculpatory information on behalf of the
defendant[] and . . . his obligation to disclose exculpatory
information is limited to that in the possession of the
prosecutor or police," Commonwealth v. Campbell, 378 Mass. 680,
702 (1979), it is clear from the record that the Norfolk
district attorney, the Suffolk district attorney, and the State
police were communicating with each other regarding Lowe and his
involvement in their various investigations. Any information on
other benefits conferred upon Lowe by these or other entities
should have been disclosed. See Commonwealth v. St. Germain,
381 Mass. 256, 261 n.8 (1980) (citations omitted) (noting that
"[t]he police are also part of the prosecution" and that "[t]he
prosecuting attorney's obligations . . . extend to material and
information in the possession or control of members of his staff
and of any others who have participated in the investigation or
evaluation of the case and who either regularly report or with
reference to the particular case or have reported to his
office"). The existence and extent of such benefits can only be
determined through an evidentiary hearing, after which the judge
will have to determine whether access to this information would
have made a difference in the defendant's trial. 6
6
The judge may decide that information regarding Lowe's
cooperation in other cases would not have been helpful to the
14
3. Newly discovered evidence. After the defendant was
convicted, an inmate at the Old Colony Correction Center named
Steven Reznikow signed an affidavit to the effect that he was
inside Lowe's apartment when the armed home invasion occurred
and that he and Lowe had been smoking crack cocaine within
minutes of the attack. This information contradicts Lowe's
testimony at trial, that he last used cocaine hours before. The
judge found Reznikow's affidavit to be neither material nor
credible, "not only because of the affiant's criminal history
but also because of his motive to lie in order to help another
individual jailed at the same institution." She concluded that
there was no risk that the jury would have reached a different
conclusion had Reznikow testified at trial, because defense
counsel effectively cross-examined Lowe about his cocaine use.
We think the judge abused her discretion in discrediting
Reznikow's affidavit simply because he is in jail and has a
criminal record. Absent other stated reasons, that finding
alone does not support the denial of an evidentiary hearing.
Although it may very well be that his allegations are not
defendant, because it would have revealed to the jury that he
was under investigation for an armored car robbery and several
homicides. While the defendant argues that the timing of Lowe's
involvement in these investigations is crucial to demonstrating
his bias against the defendant, the judge could conclude that it
is even stronger evidence that the defendant had a motive to
harm Lowe.
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credible, 7 where, as here, the credibility of the affiant cannot
be gleaned solely from the contents of the affidavit, it is only
through the crucible of direct and cross-examination that such a
judgment can be made.
4. Court room closure. The defendant alleges in his
affidavit that his mother was excluded from the court room
during jury selection. Trial counsel could not recall if a
closure occurred, and the mother did not submit an affidavit.
The defendant's trial began on August 14, 2006, and on April 12,
2007, the United States Court of Appeals for the First Circuit
decided in Owens v. United States, 483 F.3d 48, 63 (1st Cir.
2007), that the right to a public trial extends to jury
empanelment. Although trial counsel also had represented Owens
in his Federal court trial, prior to reading the court's
decision in that case, he would have not objected at the
7
Reznikow's affidavit does not identify a date but states
generally that he was at Lowe's house "[o]n a day in the spring
of 2005." Another inmate named John Campbell submitted an
affidavit stating that, based on his conversation with Reznikow
regarding a shooting at Lowe's apartment, he "concluded that
this was the incident in which [the defendant] had been charged
with home invasion." Campbell does not state his relationship
to the defendant other than that he later was incarcerated with
him, so we do not know how Campbell recognized Reznikow's
account as being consistent with the home invasion for which the
defendant had not yet been convicted. The record shows that the
defendant's residence is a two-family dwelling shared by the
Smith and Campbell families, and that Campbell is the maiden
name of the defendant's mother. What relation, if any, John
Campbell has to the defendant or his family may be the subject
of inquiry at an evidentiary hearing.
16
defendant's trial had he known that the defendant's mother was
excluded. The motion judge did not address the defendant's
claim of structural error, which was not raised in the
defendant's direct appeal and is waived. See Commonwealth
v. Randolph, 438 Mass. 290, 293 (2002). On this record, we see
no error that created substantial risk of a miscarriage of
justice. See id. at 294.
Conclusion. So much of the order denying the defendant's
motion for a new trial on the basis that the court room was
closed in violation of the Sixth Amendment is affirmed. The
defendant, having made a sufficient showing, is entitled to an
evidentiary hearing on the remaining claims. Therefore, the
balance of the order is vacated and the case is remanded to the
Superior Court for an evidentiary hearing on the remaining
claims.
So ordered.