Commonwealth v. Woods , 480 Mass. 231 ( 2018 )

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SJC-12324
COMMONWEALTH vs. THOMAS A. WOODS.
Plymouth. April 5, 2018. - August 7, 2018.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.
Homicide. Grand Jury. Evidence, Testimony before grand jury.
Practice, Criminal, Grand jury proceedings. Witness, Self-
incrimination.
Indictment found and returned in the Superior Court
Department on October 5, 2006.
Following review by this court, 466 Mass. 707 (2014), a
motion for a new trial was heard by Thomas F. McGuire, Jr., J.
A request for leave was allowed by Lowy, J., in the Supreme
Judicial Court for the county of Suffolk.
Myles D. Jacobson for the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Thomas A. Woods, appeals from
the denial of his motion for a new trial. In 2009, the
defendant was convicted of murder in the first degree and
sentenced to life in prison. On direct appeal, he challenged
2
the admission of his grand jury testimony -- later used as
substantive evidence at trial -- arguing that it was illegally
obtained, because he was not informed before testifying either
that he was a target of a grand jury investigation, or that he
had a right against self-incrimination. The court concluded
that the trial judge did not err in finding that the defendant
was not a target of the grand jury when he was called before the
grand jury to testify, and affirmed his conviction. See
Commonwealth v. Woods, 466 Mass. 707, 709, 716-720, cert.
denied, 134 S. Ct. 2855 (2014) (Woods I). In doing so, the
court also announced a prospective rule, pursuant to its
superintendence authority, requiring that grand jury witnesses
who are targets or likely targets of a criminal investigation be
given self-incrimination warnings before testifying. Id. at
719-720.
Following Woods I, the defendant moved for a new trial,
contending that facts not before the trial judge or this court
during his direct appeal establish that the defendant was a
target of a grand jury investigation; accordingly, the defendant
argued, his grand jury testimony was improperly admitted, and he
deserved a new trial. The motion judge, who was not the trial
judge, disagreed, concluding that although the new facts raised
in the defendant's motion establish that he was a target of the
investigation, this court's holding in Woods I "was not
3
dependent on the finding that the defendant was not a target."
The defendant then filed a petition before a single justice of
the county court pursuant to G. L. c. 278, § 33E, asking that
his appeal from the denial of his motion be considered by the
full court. The single justice granted the petition in March,
2017, concluding that it "present[ed] a new and substantial
question which ought to be determined by the full court." G. L.
c. 278, § 33E.
For the reasons that follow, we discern no error in the
motion judge's conclusion, and affirm the denial of the
defendant's motion for a new trial.
Background. The facts underlying the defendant's
conviction of murder in the first degree are fully set forth in
Woods I, 466 Mass. at 709-712. We review only those facts
pertinent to the defendant's postconviction proceedings.
1. Grand jury investigation. In February, 2006, the
defendant appeared as the fifth witness to testify before a
grand jury investigating the December, 2005, shooting death of
Paul Mullen in Brockton. Prior to testifying, the defendant had
been interviewed by police twice. Four witnesses testified
before the grand jury prior to the defendant, and two of those
witnesses -- David Sheff and Nicole Derochea -- stated that they
had had heard, secondhand, that the defendant had threatened to
shoot the victim before the killing occurred. When the
4
defendant appeared to testify, he was not informed that he was a
target of the investigation or that he had a right against self-
incrimination. In his grand jury testimony, he provided an
exculpatory version of events on the night of the shooting, and
explained certain inconsistencies between this version of events
and what he had said during his prior interviews with police.
At the end of a nine-month investigation that involved
approximately forty witnesses and generated 1,700 pages of
transcripts, the grand jury returned an indictment against the
defendant in October, 2006.
2. Defendant's pretrial motion in limine. In March, 2009,
the defendant filed a motion in limine to exclude his grand jury
testimony from use at his trial,1 arguing that he was "not
informed that [he] was a target of the grand jury investigation"
or that he could exercise his right not to testify. The motion
stated the date of the defendant's grand jury appearance
(February 10, 2006). The Commonwealth sought to introduce that
testimony in order to illustrate "wide-ranging inconsistencies
and implausibilities in [the defendant's] account[]" of the
night of the shooting. See Woods I, 466 Mass. at 712 ("His
1 The motion was also directed at the defendant's prior
statements to police, but the defendant raises no claim of error
with respect to those statements.
5
grand jury testimony was admitted in evidence . . . to
illustrate his conflicting stories and outright lies").
3. Commonwealth's pretrial motion in limine. On April 24,
2009, the Commonwealth filed its own motion in limine seeking to
admit evidence of prior bad acts by the defendant. The motion
described the testimony of five grand jury witnesses, including
Derochea, who were expected to testify at trial regarding
threats made by the defendant against the victim. The
Commonwealth attached to the motion the transcripts of the five
witnesses' testimony. It is not clear from the record, however,
the form in which those transcripts were presented --
specifically, whether the attachments clarified the date of each
witness's testimony -- because those attachments were not
included with the Commonwealth's motion as part of the instant
record.2
4. Pretrial hearing on the motions. On April 27, 2009,
the trial judge held a hearing on both motions. Defense counsel
reiterated the position that the defendant's testimony was
involuntary because he was a target of the investigation but did
not receive "any warnings that he didn't have to submit to that
2 We can nevertheless conclude that the Commonwealth
provided these transcripts to the trial judge because the
Commonwealth's motion stated that the grand jury transcripts for
the witnesses were attached and, at the hearing on the motion,
the Commonwealth asked the judge to impound those attachments.
6
questioning or that he could assert his Fifth Amendment
privilege."3 He argued that the issue was "whether or not the
government was under any obligation to inform [the defendant] he
was the target of the investigation and . . . that he had a
Fifth Amendment privilege." Counsel acknowledged that he
"ha[d]n't found a state case directly on point," and stated that
his argument was based on his own practical experience, having
never witnessed a situation where a grand jury target was not
informed of that status or given warnings before testifying.
Before asking the Commonwealth for its position, the trial judge
likewise stated, "I didn't realize this was an issue, so I
haven't researched the law on it. I know in the federal system
3 Defense counsel's pretrial argument that the defendant was
a target was based solely on the defendant's own grand jury
testimony: "[I]f you read [the defendant's grand jury
testimony], it's abundantly clear that he was a target . . . .
[H]e is being confronted by the prosecutor in a way that is
designed to further build the case against him that they already
have, in their mind, made. . . . It's not a well, what
happened, what did you see, and what did you do; it's a
confrontational interview or interrogation in front of the grand
jury where he's not represented by counsel. And he's clearly
the target of the investigation at that point." The prosecutor
responded that he had taken the same approach to examining the
defendant as he had with other grand jury witnesses who had
provided inconsistent statements to police, and that such "a
vigorous examination of a witness [in] a grand jury
investigation . . . doesn't make the person a target at the time
of the examination." At the hearing, the trial judge indicated
that he agreed with the Commonwealth: "[W]hen I read the grand
jury, it didn't jump out to me that he was a target. . . . I
got the impression, clearly, that they felt he knew more than he
was saying, and that was the gist of the question[ing]."
7
if somebody's going to be a target, they're told. But I haven't
researched this whole issue, but I will."
The trial judge asked the prosecutor, who had also been
responsible for the grand jury investigation: "At the time --
if you can say this, because it would change the whole way that
I'd have to view this, in your opinion, was [the defendant] a
target of the investigation when you brought him to the grand
jury?" The prosecutor replied that although the defendant's
inconsistencies in his earlier statements to police made him "a
person of interest" -- "[t]here were things that weren't adding
up . . . that he seemed to know a lot more than he was letting
on. And so that was the nature of our inquiry with [the
defendant]" -- the Commonwealth did not consider him a "target"
until additional "witnesses came in and testified about
threatening statements . . . that [the defendant] had made to
[the victim], and additional information was gathered about [the
defendant] as the investigation went on in subsequent months
leading up to [the] October" indictment. The prosecutor added
that had the defendant been a target, he would have received a
letter informing him of that status.
On May 6, 2009, the trial judge issued an oral ruling
denying the defendant's motion. He found that "[b]ased upon the
evidence before [him], the defendant . . . was not a target, but
[the Commonwealth] believed that he knew more than he told and
8
he was not being fully truthful."4 The judge also found that the
defendant was not under the influence of drugs or alcohol,
threatened, coerced, or offered false promises when appearing
before the grand jury, and "was treated appropriately," such
that his testimony was free and voluntary under the totality of
the circumstances.
5. Defendant's direct appeal. At trial, the jury found
the defendant guilty of murder in the first degree. On direct
appeal, he continued to press his objection to the introduction
of his grand jury testimony, arguing that it infringed on his
"federal and state law rights against compelled self-
incrimination." We rejected the argument that self-
incrimination warnings were legally required at the time, thus
upholding the trial judge's denial of the defendant's motion in
limine. Woods I, 466 Mass. at 716-720. We discerned no error
in the trial judge's finding that the defendant was not a
4 As for what the trial judge had before him when making
this determination, it appears from the available record that
the judge had received the date and transcript of the
defendant's own grand jury testimony, established through the
defendant's motion in limine and the submission of the
transcript of the defendant's testimony. In addition (albeit in
connection with the Commonwealth's separate motion to admit
evidence of the defendant's prior bad acts), the trial judge had
received the transcripts of five additional grand jury witnesses
(including Nicole Derochea); however, because the Commonwealth's
attachments are not a part of the instant record, we cannot
discern how informed the judge might have been as to the content
and date of each of those five witness's testimony.
9
target, and added that "[e]ven if the defendant were a 'target,'
the Commonwealth was under no obligation to warn him of that
status" under Federal or State law. Id. at 717, citing United
States v. Washington, 431 U.S. 181, 188-190 (1977), and
Commonwealth v. D'Amour, 428 Mass. 725, 743 (1999).
We then "consider[ed] for the first time" what we perceived
as "the defendant's separate argument that the Commonwealth must
advise targets or potential targets of the grand jury's
investigation of their right not to incriminate themselves."
Woods I, 466 Mass. at 717-718. Concluding that a grand jury
summons "is a form of compulsion," we "adopt[ed] a rule that
where, at the time a person appears to testify before a grand
jury, the prosecutor has reason to believe that the witness is
either a 'target' or is likely to become one, the witness must
be advised, before testifying, that (1) he or she may refuse to
answer any question if a truthful answer would tend to
incriminate the witness, and (2) anything that he or she does
say may be used against the witness in a subsequent legal
proceeding" (footnote omitted). Id. at 719-720.5 We clarified
5 The court adopted the United States Attorney's Manual
definition of "target," as "a person as to whom the prosecutor
or the grand jury has substantial evidence linking him or her to
the commission of a crime and who, in the judgment of the
prosecutor, is a putative defendant." Commonwealth v. Woods,
466 Mass. 707, 716, 719 n.12 (2014) (Woods I), quoting United
States Attorneys' Manual § 9-11.151 (2009).
10
that the rule is nonconstitutional and therefore "is only
required to be applied prospectively." Id. at 720.
6. Motion for a new trial. The defendant subsequently
moved for a new trial, where he focused primarily on refuting
the trial judge's factual determination that he was not a target
of the investigation.6 The defendant attached the grand jury
testimony of the four witnesses who had testified before the
defendant during the grand jury investigation, but whose
testimony was largely unknown to the trial judge, and therefore
was not a part of the record in Woods I.7 Two of those witnesses
-- Sheff and Derochea -- testified to hearsay statements they
had heard about threats the defendant had made against the
victim before the shooting. The motion judge agreed that the
grand jury testimony of these two witnesses constituted
"substantial evidence" linking the defendant to the crime, thus
6 The defendant contended that the trial judge's finding
that the defendant was not a target resulted from ineffective
assistance of counsel or prosecutorial misconduct. The
defendant separately argued that he was "deprived of a fair
opportunity for proper application of the Humane Practice Rule,"
but he does not continue to pursue that claim before us.
7 The defendant submitted the grand jury testimony of the
four witnesses who had testified at the grand jury prior to his
own testimony, including David Sheff and Derochea, with his
motion for a new trial. Although the trial judge had received
Derochea's testimony in some manner (as part of the
Commonwealth's motion in limine to admit prior bad act evidence,
see note 4, supra), it does not appear that the transcripts of
the testimony of Sheff and the other two witnesses were provided
to the trial judge.
11
rendering him "a target or potential target of the
investigation." The judge declined to grant the defendant a new
trial on that basis, however, concluding that this court's
decision in Woods I was not dependent on the factual finding
that the defendant was not a target of the investigation.
Discussion. A single justice's determination that a
petition raises a "new and substantial question" under G. L.
c. 277, § 33E, is "final and unreviewable." Commonwealth v.
Scott, 437 Mass. 1008, 1008 (2002). We review the denial of the
defendant's motion for a new trial for "a significant error of
law or other abuse of discretion" (citation omitted).
Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). The
defendant argues that the motion judge made such an error in
concluding that this court's decision in Woods I upholding the
admission of the defendant's grand jury testimony did not depend
on the factual finding that the defendant was not a target of
the investigation. The motion judge did not err.
First, the language of Woods I makes clear that the motion
judge was correct. On direct appeal, the defendant raised the
very same legal argument that he puts before us now: because he
was a target of the grand jury, he was entitled to self-
incrimination warnings. The court specified in Woods I, 466
Mass. at 717, that "[e]ven if the defendant were a 'target,' the
Commonwealth was under no obligation to warn him of that status"
12
(emphasis added). Likewise, addressing "the defendant's
separate argument" regarding self-incrimination warnings, the
court acknowledged that it was considering the issue "for the
first time" -- meaning that nothing prior to Woods I required
self-incrimination warnings as a matter of law. Id. at 717-718.
In other words, just as the Commonwealth was under no obligation
to warn the defendant of his target status, even if he were a
target, so too was the Commonwealth under no obligation at that
time to advise the defendant of his right against self-
incrimination. The court adopted that very requirement in the
defendant's case, and stated that it was to apply only
prospectively, "to grand jury testimony elicited after the
issuance of the rescript in [that] case." Id. at 720. Thus,
irrespective of the defendant's target status, he was not
entitled to the new rule.8
8 Notwithstanding the language of Woods I, the defendant
suggests in a single sentence of his brief that he is entitled
to the retroactive benefit of the Woods I rule, based on the
court's opinion in Commonwealth v. Adjutant, 443 Mass. 649, 667
(2005). See Commonwealth v. Candelario, 446 Mass. 847, 859
(2006), quoting Commonwealth v. Donahue, 430 Mass. 710, 714 n.1
(2000) (single sentence stating claim with citation
"[in]adequate for appellate consideration" under Mass. R. A. P.
16 [a] [4], as amended, 367 Mass. 921 [1975]). He expands on
this argument somewhat in a postargument letter prompted by a
question during oral argument concerning Adjutant's potential
application. In Adjutant, the court announced a new common-law
rule of evidence, and concluded that the defendant should be
given the benefit of the new rule -- thus entitling her to a new
trial -- because the defendant had alleged the error and argued
for the new rule on direct appeal. Adjutant, supra, citing
13
As the motion judge recognized, the sole difference between
the defendant's argument on direct and his argument on
collateral review is the factual basis for his claim that he was
a target: now, in addition to his own testimony, he offers the
testimony of the four witnesses who appeared before him during
the grand jury investigation (and whose testimony the motion
judge deemed "substantial evidence" establishing that the
defendant was a target). At the core of the defendant's instant
argument are the dual suggestions that, had the trial judge been
made aware that two witnesses (Sheff and Derochea) testified at
the grand jury before the defendant did, regarding prior threats
the defendant had made against the victim, the trial judge (1)
would have found that the defendant was a "target" by the time
he testified, and (2) would have granted on that basis the
Commonwealth v. Dagley, 442 Mass. 713, 721 n.10 (2004), cert.
denied, 544 U.S. 930 (2005). Adjutant is inapposite because
that case involved a defendant's direct appeal, whereas this
case involves the defendant's postconviction proceedings. The
defendant offers no authority to support the claim that he is
entitled to the retroactive benefit, on collateral review, of a
nonconstitutional rule first announced in his direct appeal,
where the court specified that the rule would apply "only . . .
to grand jury testimony elicited after the issuance of the
rescript in [Woods I.]" Woods I, 466 Mass. at 720. We likewise
reject the defendant's related assertion that the Woods I rule
is in fact constitutional, not procedural, on the ground that it
is "based in" the constitutional protection against self-
incrimination. See id. at 720 ("This rule is not a new
constitutional rule, but rather an exercise of our power of
superintendence").
14
defendant's motion to exclude the defendant's grand jury
testimony.
We are in no position to engage in such speculation.
First, the fact that the motion judge concluded, based on this
new testimony, that the defendant was a target does not
automatically establish that the trial judge would have reached
the same conclusion. Both Sheff and Derochea's testimony
involved hearsay, and this may well have affected the weight
that the trial judge would have assigned their testimony when
determining whether it constituted "substantial evidence" that
the defendant was a target when he testified.9 It was not until
after the defendant testified that the grand jury heard from
additional witnesses who described hearing the defendant's
threats firsthand.
Second, even assuming that the trial judge would have
concluded based on this additional testimony that the defendant
was a target, we cannot say that he would have excluded the
defendant's grand jury testimony on that basis. The defendant
focuses extensively, and exclusively, on the trial judge's
comment at the motion in limine hearing that the defendant's
9 In ruling on the defendant's pretrial motion in limine,
the trial judge rejected the defendant's argument (which he
continues to argue before us) that the defendant's own grand
jury testimony, and the nature of the prosecutor's questioning,
also demonstrate that he was a target. See note 3, supra.
15
status as a target "would change the whole way that [he would]
have to view this" issue. What the defendant omits is the trial
judge's additional comment, made at the very outset of the
hearing, that he had not yet researched the law regarding the
defendant's position that target warnings were required. As our
above discussion makes clear, had the trial judge done so, he
would have discovered that such warnings were not legally
required at that time, and thus the Commonwealth's failure to
provide the defendant with such a warning did not preclude them
from using that testimony at trial.
Conclusion. We decline to grant the defendant a new trial
on collateral review based on an alleged violation of a right
that simply did not exist at the time of his trial.10 We affirm
the denial of the defendant's motion for a new trial.
So ordered.
10In light of our conclusion that the Woods I rule did not
hinge on the defendant's target status, we need not address the
defendant's related arguments that the trial judge's finding
that the defendant was not a target was the product of
ineffective assistance of counsel, prosecutorial misconduct, or
both.