Commonwealth v. Mcmillan

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18-P-1702 Appeals Court
COMMONWEALTH vs. ALI MCMILLAN.
No. 18-P-1702.
Essex. November 12, 2019. - September 16, 2020.
Present: Rubin, Wolohojian, & Henry, JJ.
Controlled Substances. Practice, Criminal, Conduct of
government agents, Discovery, Disclosure of evidence,
Disclosure of identity of surveillance location,
Confrontation of witnesses, New trial. Evidence,
Disclosure of evidence, Exculpatory, Cross-examination.
Witness, Cross-examination. Constitutional Law, Conduct of
government agents, Confrontation of witnesses. Due Process
of Law, Disclosure of evidence.
Complaint received and sworn to in the Lynn Division of the
District Court Department on September 11, 2014.
The case was tried before James D. Barretto, J., and a
motion for a new trial, filed on July 30, 2018, was considered
by him.
Amy Codagnone for the defendant.
Kayla M. Johnson, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. The defendant was convicted of distribution of a
class A substance in violation of G. L. c. 94C, § 32 (a). The
2
defendant appeals from his conviction and the denial of his
motion for a new trial, in which the defendant raised numerous
claims based on the Commonwealth's delayed disclosures and
suppression of exculpatory, material pieces of evidence.
Because those discovery violations, and the procedure
implemented at trial to address some of them, violated the
defendant's due process rights, we reverse the order denying the
defendant's motion for a new trial and the defendant's
conviction.
Background. On June 21, 2011, as part of an operation by
the North Shore Gang Task Force (NSGT or task force),1 special
agents of the Federal Bureau of Investigation (FBI) and officers
of several local law enforcement agencies planned a controlled
purchase of narcotics. The purchase was to take place in the
area of Vine Street in Lynn, utilizing a confidential informant
(CI). The task force had utilized this CI in other controlled
purchase operations in the North Shore area around this time.
On June 21, 2011, officers drove with the CI to Lynn Technical
High School. An officer utilized standard FBI protocol,
routinely used by this task force, to search the CI for any
1 The NSGT is a federally funded task force staffed by FBI
special agents, officers from the Essex County Sheriff's Office,
State police troopers, and officers of the Lynn Police
Department, among others.
3
outside drugs on his person. Officers then gave the CI $650,
and released the CI in the Vine Street area.2
Officers on the task force took up surveillance positions
along Vine Street to monitor the CI and observe the controlled
purchase. Special Agent McEachern, along with another officer,
remained near Lynn Technical High School. Sergeant Avery was
stationed near the intersection of Vine Street and Summer
Street. Detective Withrow and another officer were stationed in
a vehicle on Huss Court, another street off Vine Street. From
over one hundred feet away, Detective Withrow saw the CI walk to
the corner of Vine Street and Warren Street, greet the
defendant, and shake his hand; he then saw a hand-to-hand
exchange in which the CI gave the defendant the controlled
purchase money. The CI then returned to the officers at Lynn
Technical High School. The CI turned over a clear plastic bag
to Special Agent McEachern containing what was later tested and
confirmed to be heroin.
Based on this evidence, the defendant was charged with
distribution of a class A substance in violation of G. L.
2 While officers had affixed an audio-visual recording
device to the CI to record the controlled purchase, this device
could be turned off by the CI at any time. Because the device
stopped recording while the CI walked down the street, the
device failed to record any evidence of an exchange with the
defendant.
4
c. 94C, § 32 (a).3 In pretrial discovery, the defendant
specifically requested the locations from which each police
officer's surveillance of the CI and the controlled purchase was
conducted. The Commonwealth provided a single surveillance
location, 27-29 Huss Court. In response to a request from the
defendant, the Commonwealth filed a witness list naming only six
witnesses, including Special Agent McEachern and Detective
Withrow, but not Sergeant Avery.
The Commonwealth also provided information, although
incomplete, about misconduct by the CI who conducted the
controlled purchase in this case. An undated affidavit from
Detective Withrow stated:
"I believe that [the CI] has lied to the FBI about material
matters during the course of the investigation. For
example, [the CI] told the FBI that certain controlled buys
of drugs cost more than they actually cost and kept the
difference in official government currency provided
. . . for those buys (it appears that this typically
involved $50-$200). [The CI] has admitted that it stole
that money. [The CI] has also admitted to the FBI that it
lied to the FBI about a phone call that [the CI] had with a
target of the investigation (i.e., [the CI] described the
contents of a particular phone call as involving drug
conversation when, in fact, the recording of the call
indicated that [the CI] did not make contact with the
target). . . . [The CI] also has an open case for theft of
government property and false statements in connection with
[the CI's] theft of money provided to it for controlled
buys, as described above."
3 The defendant was also charged with four counts of
distribution of a class B substance as a subsequent offense.
Two of these counts were dismissed by the court at the request
of the Commonwealth and on the remaining two counts, the
Commonwealth filed a nolle prosequi.
5
A 2013 FBI report turned over by the Commonwealth gave some
details of unauthorized illegal activity by the CI. The 2013
FBI report stated that the CI admitted that he "skimmed money
during three separate purchases of narcotics totaling
approximately $150. The [CI] hid the money in his shoes."
The Commonwealth also had in its possession prior to trial,
but failed to disclose to the defendant, additional information
concerning the CI's misconduct, information it had been ordered
in another case to provide, including the dates of the CI's
theft of controlled purchase money, the names of other cases in
which the CI had been an informant and had committed misconduct,
the fact that the CI had pleaded guilty to five counts of theft
of government property and three counts of making false
statements, and the fact that the CI had stolen $685 from the
FBI on five occasions, rather than $150 on three occasions as he
had confessed and as had previously been indicated by the 2013
FBI report. The CI's misconduct occurred during the joint State
and Federal investigation called "Operation Whiplash" (joint
investigation), of which the investigation and prosecution of
the defendant were a part, by the same task force that undertook
the investigation in the instant case; the same monitoring
protocol utilized in this case was followed in each controlled
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purchase during which the CI stole purchase money and hid it in
his shoe, yet avoided detection.
The Commonwealth was unable to produce the CI at the time
of trial in this case as the CI was, in the prosecutor's words,
"in the wind." Over the defendant's objection, the judge
initially excluded all evidence of the unavailable CI's criminal
activities, including stealing money from law enforcement
agencies during controlled purchases. The Commonwealth argued,
and the judge concluded, that if there was constant police
observation of the CI in this case, the evidence as to the CI's
credibility was irrelevant. The judge determined that the CI's
history of lying and committing misconduct would add nothing to
the jury's understanding of the case, where the CI was not a
witness and testifying witnesses could account for his actions
during each moment of the controlled purchase.
The judge, therefore, did not permit cross-examination of
any Commonwealth witnesses about the reliability of the CI, the
fact that the CI was paid by the NSGT, or other occasions in
which NSGT officers failed to observe the CI -- whether through
an inability to see him or inattentiveness -- when the CI was
hiding money in his shoe during other controlled purchases
during the joint investigation at issue in this case. This
ruling was, however, predicated on the Commonwealth's ability to
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prove that officers had the CI under constant police
surveillance during the controlled purchase in this case.
On the second day of trial, it became apparent that the
witnesses on the Commonwealth's witness list could not provide
testimony demonstrating constant surveillance of the CI during
the controlled purchase. The Commonwealth reported that it
would need an additional witness, Sergeant Avery, to establish
the absence of a gap in police surveillance. Over the
defendant's objection, the judge permitted the Commonwealth to
call Sergeant Avery as a witness, despite the fact that Sergeant
Avery's name was not on the witness list provided to the
defendant before trial.
Even with Sergeant Avery's testimony however, the judge
found that the Commonwealth had failed to establish constant
police surveillance of the CI, thereby making the CI's
credibility and history of misconduct relevant, permissible
grounds for the defendant's inquiry. Consequently, but only
after the close of the Commonwealth's case, the judge allowed
the defendant, as part of his own case-in-chief, to recall a
single witness, Detective Withrow, to conduct a "circumspect"
examination about the CI's misconduct.
It was also revealed for the first time during the course
of trial that the Commonwealth had disclosed to the defendant
the incorrect location for the point from which Detective
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Withrow conducted his surveillance. He was not at 27-29 Huss
Court, but in a parking lot across the street closest to 32 Huss
Court. Sergeant Avery also testified as to the location from
which he conducted surveillance, a location that the
Commonwealth had not provided to the defendant prior to trial,
despite the discovery request described above. The defendant's
objection to Sergeant Avery's surprise testimony, on the grounds
that he had had no opportunity to investigate Sergeant Avery's
location, was overruled.
The jury found the defendant guilty as charged. At trial,
Detective Withrow provided the only evidence linking the
defendant to this controlled purchase; he alone testified that
the CI had engaged in a hand-to-hand exchange with the
defendant. The Commonwealth presented no other evidence that
the defendant had distributed narcotics on June 21, 2011.
Following trial, a private investigator hired by defense
counsel investigated and took photographs from the actual
surveillance locations disclosed for the first time during
trial. These photographs demonstrated that, contrary to
assertions made by the officers at trial, their vantage points
would have provided significantly obstructed views of the CI as
he went to and from the alleged controlled purchase. The
defendant presented this undisputed evidence to the trial judge
in his motion for a new trial, in which he raised a number of
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discovery violations and delayed disclosures by the
Commonwealth.
The motion for a new trial identified numerous discovery
violations: 1) in response to a specific request to disclose
surveillance locations for the controlled purchase, the
Commonwealth provided an inaccurate location from which
Detective Withrow supposedly saw the controlled purchase occur;
2) defense counsel was not given an opportunity to investigate
the location from which Sergeant Avery undertook his
surveillance; and 3) the Commonwealth withheld evidence of the
CI's full history of misconduct and theft from the NSGT.
The judge denied the new trial motion in a two-page order
without an evidentiary hearing. The defendant filed a notice of
appeal, and his direct appeal and his appeal from the denial of
his motion for a new trial are consolidated here.
Discussion. 1. Denial of the defendant's new trial
motion. We review the judge's denial of the defendant's motion
for a new trial pursuant to Mass. R. Crim. P. 30 (b), as
appearing in 435 Mass. 1501 (2001), for significant errors of
law or other abuses of discretion. Commonwealth v. Grace, 397
Mass. 303, 307 (1986). Here, the judge made no specific
findings as to the individual merits of each of the defendant's
claims and gave no substantive written explanation for his
denial of the motion. As the defendant has demonstrated that he
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was prejudiced by discovery violations, we conclude that the
judge abused his discretion in denying the motion for a new
trial.
We begin with the Commonwealth's obligations under Brady v.
Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427
U.S. 97, 106 (1976), to provide the defendant with an accurate
location from which officers observed the controlled purchase.
In response to a specific discovery request for the
locations from which surveillance was conducted, and after being
ordered by the court to provide such information, the
Commonwealth provided to the defendant a single, incorrect
surveillance location before trial. In accordance with due
process, "the government is constitutionally obligated to
disclose material, exculpatory evidence for which a defendant
has made a specific request." Commonwealth v. Sullivan, 478
Mass. 369, 380 (2017). See Commonwealth v. Ellison, 376 Mass.
1, 21 (1978). We consider evidence to be exculpatory when it
"tends to negate the guilt of the accused . . . or, stated
affirmatively, support[s] the innocence of the defendant"
(quotations omitted). Commonwealth v. Pisa, 372 Mass. 590, 595,
cert. denied, 434 U.S. 869 (1977). Evidence that must be turned
over is "that 'which provides some significant aid to the
defendant's case[,] . . . calls into question a material,
although not indispensable, element of the prosecution's version
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of the events, or challenges the credibility of a key
prosecution witness.' [Ellison, supra at 22]." Commonwealth v.
Baldwin, 385 Mass. 165, 175 (1982). Impeachment evidence is
"clearly exculpatory." Commonwealth v. Hill, 432 Mass. 704,
715-716 (2000), quoting Commonwealth v. Collins, 386 Mass. 1, 8
(1982).
In this case, the officers' vantage points determined
whether they could have had continuous surveillance during the
controlled purchase by the CI who, on previous occasions during
the same joint investigation, had, despite claimed surveillance
by officers of the task force, managed to engage in unlawful and
unobserved conduct during other controlled purchases. The
undisputed evidence of photographs taken from the officers'
actual vantage points presented on the motion for a new trial
demonstrated that the information would have led to valuable
evidence that could have been used on cross-examination. The
Commonwealth here plainly failed to disclose in pretrial
discovery evidence that was material and exculpatory.
As in Baldwin, however, because the evidence was revealed
at trial, this is a case of delayed disclosure rather than
complete suppression. In such cases, "it is the consequences of
the delay that matter, not the likely impact of the nondisclosed
evidence, and we ask whether the prosecution's disclosure was
sufficiently timely to allow the defendant 'to make effective
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use of the evidence in preparing and presenting his case.'"
Baldwin, 385 Mass. at 175, quoting Commonwealth v. Wilson, 381
Mass. 90, 114 (1980). See United States v. Drougas, 748 F.2d 8,
23 (1st Cir. 1984) ("Where . . . the defense is confronted not
with complete suppression, but with delayed disclosure, reversal
will be granted only if defendants were denied the opportunity
to use the disclosed material effectively"). It is only where
the delay in disclosure of Brady material deprives the defendant
of the opportunity to make effective use of it that the
Constitution is violated. See Commonwealth v. Adrey, 376 Mass.
747, 755 (1978), citing United States v. Pollack, 534 F.2d 964,
973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976).
The late disclosure here was not sufficiently timely to
allow the defendant to make effective use of the material in
preparing his defense.
Before trial, defense counsel investigated the surveillance
location provided by the Commonwealth and even prepared
photographs from the vantage point identified in discovery to
use in cross-examination, only to find in the midst of the
second day of trial that the location he investigated was not
relevant to Detective Withrow's actual vantage point. Because
the disclosure occurred literally in the middle of trial,
defense counsel could not have demonstrated at trial that the
delay in disclosure prevented him from making effective use of
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the evidence. But uncontested photographs taken from Detective
Withrow's actual vantage point by an investigator after trial
and presented to the judge at the first opportunity, in the
defendant's motion for a new trial, showed that this vantage
point had an obstructed view of the corner where the exchange
was supposed to have taken place, in addition to being over one
hundred feet away. Evidence that Detective Withrow's view of
the defendant was obstructed would have been critical to the
defense. Detective Withrow, alone among the Commonwealth's
witnesses, claimed to have witnessed the defendant conduct a
hand-to-hand exchange with the CI, and the evidence of this
exchange was the sole basis for the defendant's conviction. The
late disclosure thus obviously deprived the defendant of the
opportunity effectively to prepare his defense.4
Likewise, midtrial, the defendant was given mere hours'
notice of the Commonwealth's intent to offer an entirely new
police witness, Sergeant Avery, whose location in the
surveillance operation had not been disclosed before trial,
despite a specific request for each officer's surveillance
location. The photographs included in the defendant's new trial
4 The Commonwealth does not contest the content of the
photographs, arguing only that as a matter of law, the defendant
was able adequately to cross-examine the witnesses without them,
an argument with which we disagree. As a consequence, a remand
for an evidentiary hearing is not required.
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motion also demonstrated that Sergeant Avery's view of the CI as
he walked down Vine Street would have been limited. Had the
defendant known Sergeant Avery would testify and had the
defendant been able to use the photographs to cross-examine
Sergeant Avery on his inability constantly to view the CI due to
his surveillance location, the defendant could have presented a
defense seriously undermining the officers' testimony that they
maintained constant visual surveillance of the CI at all times
and that the CI actually purchased heroin from the defendant.
See Commonwealth v. Hernandez, 421 Mass. 272, 275 (1995)
("disclosure of the surveillance location would have been
relevant and helpful to the defense where there was every
indication that the testimony of the observing police officers
was crucial to the Commonwealth's case"). Because of the
delayed disclosure, the defendant could not make effective use
in his defense of this information.
Defense counsel's pretrial work to establish the weakness
of the Commonwealth's claim of constant observation of the CI
was impressively diligent, yet it was rendered useless by the
revelation at trial of the information that should have been
provided in discovery. Likewise, posttrial counsel's work in
establishing the inadequacy of the officers' vantage points was
also diligent –- indeed, exemplary. The defendant has met his
burden of demonstrating that the delayed disclosure of Detective
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Withrow's and Sergeant Avery's surveillance locations were not
"sufficiently timely to allow the defendant 'to make effective
use of the evidence in preparing and presenting his case.'"
Baldwin, 385 Mass. at 175, quoting Adrey, 376 Mass. at 755.
That the defendant ultimately managed some cross-examination of
Detective Withrow and Sergeant Avery as to their vantage points
does not erase the prejudice to the defendant. "In order
properly to cross-examine the police officers on their
observations from the surveillance location, the defendant would
need to know the distance from the observation post to the site
of the alleged crime, as well as the existence of any
obstructions or other impediments to a clear view." Hernandez,
421 Mass. at 275. Here, the defendant learned this information
too late to make full use of it.
Both individually and cumulatively, these failures of
disclosure by the Commonwealth prejudiced the defendant under
the applicable standard. He therefore did not receive a fair
trial and the denial of his motion for a new one was an abuse of
discretion.5
5 The defendant also argues that the Commonwealth's failure
to provide all of the information about the CI's misconduct
requires a new trial because it prevented the defendant from
preparing what would have been valuable cross-examination of the
police witnesses about the quality of the surveillance provided
by the task force. The jury remained unaware of the full extent
of the CI's misconduct, including his convictions for lying to
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2. Restriction of the defendant's cross-examination
rights. The judge's exclusion of all evidence of the CI's
misconduct during the Commonwealth's case-in-chief and the
restrictions he placed on the defendant's cross-examination of
the Commonwealth's witnesses were also in error. Although the
defendant was eventually permitted to conduct a limited
examination of Detective Withrow during the defendant's own
case-in-chief, he was restricted to asking about why the CI was
terminated, whether the CI was compensated, and whether the CI
was on probation; he could not inquire about the CI's
recruitment or prior work with the task force.
The defendant's right of confrontation under the Sixth
Amendment to the United States Constitution and his rights under
art. 12 of the Massachusetts Declaration of Rights entitled him
to "[a] fair and full cross-examination to develop facts in
issue or relevant to the issue[; it] is a matter of absolute
right and is not a mere privilege to be exercised at the sound
discretion of the presiding judge, and the denial of the right
is prejudicial error." Commonwealth v. Johnson, 365 Mass. 534,
543 (1974), quoting Gossman v. Rosenberg, 237 Mass. 122, 124
and stealing from the FBI, and the defendant argues that this
was particularly significant where his conviction was based
entirely on evidence of a single controlled purchase. In light
of our conclusion with respect to the surveillance locations and
the surprise witness, we need not reach the issue.
17
(1921). The defendant should have been allowed a thorough
cross-examination of each prosecution witness, for which
recalling a single one of the witnesses in his own case-in-chief
was not an adequate substitute.6
Conclusion. For these reasons, the judgment is reversed
and the verdict is set aside, and the order denying the
defendant's motion for a new trial is reversed.
So ordered.
6 Because we conclude that the defendant is entitled to a
new trial on these grounds, we need not address his other claims
raised on appeal regarding the admission of hearsay evidence at
trial, the inability to reconstruct the inaudible portions of
the trial transcript, the prosecutor's statements in opening
argument, and the denial of the defendant's motion for
postconviction discovery that may have supported his argument
that the Commonwealth withheld exculpatory evidence.