COMMONWEALTH v. ABDULLAH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant was convicted of armed robbery, aggravated assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon, unlawful possession of ammunition, unlawful possession of a firearm, and carrying a loaded firearm. The defendant also was convicted of the subsequent offense, habitual offender, and armed career criminal enhancements after a second trial. The convictions were based on evidence that in August 2008, the defendant arranged to purchase drugs from Leon Jones; however, when Jones arrived, the defendant robbed him at gunpoint and shot him, and the defendant also struck another individual with the gun.

On direct appeal, a panel of this court affirmed all but the defendant's conviction for unlawful possession of ammunition. See Commonwealth v. Abdullah, 86 Mass. App. Ct. 1114 (2014). Thereafter, the defendant moved to vacate his convictions and dismiss the indictments or, in the alternative, for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), on the basis that the Commonwealth provided undisclosed inducements to Jones in consideration for his trial testimony. A Superior Court judge denied the motion without holding an evidentiary hearing and without explicitly ruling on the defendant's related motion for postconviction discovery. The defendant now appeals from that order denying his rule 30 (b) motion and the implicit denial of his motion for postconviction discovery.

On the record before us, we agree with the motion judge that the defendant has not demonstrated prejudice warranting a new trial; however, because the defendant made a sufficient showing that he was entitled to postconviction discovery, we remand this matter to permit such discovery.

Discussion. 1. Stays of Jones's sentences. The Commonwealth concedes that in an abundance of caution and consistent with best discovery practices, it should have disclosed that it assented to the stay of execution of Jones's sentences in two criminal cases from December 2008 and January 2009 until March 2009, while it engaged in discussions with Jones for a cooperation agreement.³ The stays were revoked after Jones was arrested on new charges in March 2009, two and one-half years before he testified at the defendant's trial, and Jones ultimately served the sentences as originally imposed.

The defendant argues that on the present record, he is entitled to a new trial because the Commonwealth's nondisclosure of the stays violated his due process rights and prejudiced him by precluding what would have been an effective avenue to impeach Jones at trial. We disagree.

“[W]hen a new trial claim is constitutionally based, ․ ‘this court will exercise its own judgment on the ultimate factual as well as legal conclusions.’ ” Commonwealth v. Laguer, 448 Mass. 585, 593 (2007), quoting Commonwealth v. Healy, 438 Mass. 672, 678 (2003). See Commonwealth v. Drayton, 473 Mass. 23, 32 (2015). “Where, as here, the motion judge was not the trial judge, and where there was no evidentiary hearing, we are in ‘as good a position as the motion judge to assess the trial record’ ” (citation omitted). Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017).

“The Commonwealth is required to disclose exculpatory evidence to the defendant, including ․ evidence that would tend to impeach the credibility of a key prosecution witness.” Commonwealth v. Collins, 470 Mass. 255, 267 (2014). Such evidence includes agreements, understandings, promises, inducements, or similar arrangements between the Commonwealth and a significant prosecution witness. See Commonwealth v. Upton, 484 Mass. 155, 160 (2020), citing Brady v. Maryland, 373 U.S. 83, 87 (1963); Collins, supra. Where the defendant made a specific request for such information prior to trial, as is the case here, nondisclosure is excused only if “the error did not influence the jury, or had but very slight effect.” Commonwealth v. Hill, 432 Mass. 704, 716 (2000), quoting Commonwealth v. Collins, 386 Mass. 1, 9 (1982).

We agree with the Commonwealth that, standing alone, the short delay in Jones serving his sentences was not an inducement. See Commonwealth v. Burgos, 462 Mass. 53, 62 n.8 (2012) (prosecution not required to disclose two-week delay in witness's transfer from county jail to State prison as such delay “hardly seems the type of preferential treatment or benefit that would be likely to influence a witness's testimony”).

Moreover, even if the Commonwealth had disclosed the reason for the stays of Jones's sentences prior to trial, it would not have influenced the jury. During cross-examination at trial, Jones acknowledged that he sought to leverage his trial testimony to receive some benefit in his own criminal cases, but that he ultimately had no luck in doing so.⁴ Thus, the jury were aware both of Jones's convictions and his attempt to arrange a cooperation agreement with the Commonwealth.

We are not persuaded that the defendant could have more effectively impeached Jones at trial based solely on the stays of his sentences. By the time Jones was sentenced and those sentences were stayed, he had already identified the defendant as the person who shot him from a photographic array and testified before the grand jury. At trial, Jones testified only to that out-of-court identification, and did not make an in-court identification. Furthermore, when pressed during cross-examination, Jones expressly disavowed defense counsel's suggestion that he only testified before the grand jury to garner favor from the Commonwealth in Jones's own criminal cases; rather, he explained, “I went [before the grand jury] out of anger and frustration for the fact that in the game I'm in, you know, if you rob somebody and they give you their stuff you're supposed to take it and leave. You don't shoot them.”

Cross-examination concerning the stays of Jones's sentences would not have effectively undermined Jones's credibility or called into question his prior identification of the defendant, particularly where those stays had long since been revoked and Jones served his sentences as originally imposed. See Commonwealth v. Watkins, 473 Mass. 222, 232 (2015) (defendant not prejudiced by failure to disclose that witness asked for, but did not receive favorable treatment at dangerousness hearing). See also Commonwealth v. O'Neil, 51 Mass. App. Ct. 170, 179–180 (2001), S.C., 436 Mass. 1007 (2002) (defendant may impeach witness using “any statement which ‘reasonably implies that the government ․ is likely to confer or withhold future advantages ․ depending on [the] witness'[s] cooperation,’ or ‘any communication that suggests preferential treatment to a key government witness in return for that witness's testimony’ ” [citations omitted]). Contrast Hill, 432 Mass. at 711 (defendant entitled to new trial where prosecutor did not disclose material arrangement with key witness who “fully expected to get substantial consideration” on pending charges in return for testimony).

Therefore, on this record, we agree with the motion judge that the defendant has not demonstrated a substantial basis for claiming prejudice. See Watkins, 473 Mass. at 231.

2. Postconviction discovery. The defendant also argues that the motion judge erred in implicitly denying his motion for postconviction discovery of all information concerning the Commonwealth's alleged arrangements with Jones to seek resentencing in his two criminal cases.⁵ We agree.

We review the denial of a defendant's motion for postconviction discovery under Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001), for abuse of discretion. See Commonwealth v. Torres, 479 Mass. 641, 647 (2018); Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 177 n.12 (2001). “The purpose of postconviction discovery is to allow a defendant to gather evidence to support ‘an apparently meritorious claim ․ [where] the evidence that can be adduced to support the claim is unknown to the court.’ ” Commonwealth v. Ware, 471 Mass. 85, 94 (2015), quoting Commonwealth v. Daniels, 445 Mass. 392, 406 (2005). “When requesting such discovery, a defendant by affidavit ‘must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial.’ ” Ware, supra, quoting Daniels, supra at 407.

In support of his motion, the defendant cited information in the records of Jones's two criminal cases suggesting that the Commonwealth made specific arrangements for Jones's resentencing in exchange for his cooperation in this case.⁶ Without knowing the details of any arrangements between the Commonwealth and Jones, we cannot foreclose the possibility that existence of an arrangement -- even if it was later rescinded as a result of Jones's March 2009 arrest -- would have aided defense counsel in impeaching Jones at trial. Only upon receiving more information about the nature and scope of any resentencing arrangement could the defendant assess whether it would have provided fodder for cross-examination and, therefore, supported his motion for a new trial. See Commonwealth v. Goitia, 480 Mass. 763, 769 (2018) (“Although informing the jury of the existence of a cooperation agreement would have been a ‘powerful impeachment tool,’ the error in failing to do so does not, by itself, require a new trial”).

We conclude that “this evidence, if explored further through discovery, could yield evidence that might have ‘played an important role in the jury's deliberations and conclusions, even though it is not certain that the evidence would have produced a verdict of not guilty.’ ” Daniels, 445 Mass. at 407, quoting Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992). Thus, we remand to permit such discovery.

Conclusion. Postconviction discovery should have been allowed pursuant to Mass. R. Crim. P. 30 (c) (4), because the defendant made a sufficient showing that the requested discovery is reasonably likely to uncover evidence that might warrant granting a new trial. Accordingly, so much of the order entered on March 14, 2018, as denies the defendant's motion for postconviction discovery is vacated, and we remand the matter for further proceedings consistent with this memorandum and order. As so modified, the order is affirmed.⁷

So ordered.

Affirmed in part; vacated in part and remanded

FOOTNOTES

3.   The defendant acknowledges that one of Jones's sentences was initially stayed in December 2008, while Jones recovered from surgery for injuries he sustained during the robbery. However, at least by January 2009, the stays appear unrelated to Jones's medical needs.

4.   We reject the defendant's argument that Jones's testimony was false or misleading on the basis that Jones failed to disclose that his sentences were stayed. See Burgos, 462 Mass. at 60-62 & nn. 7-8 (witness's testimony was not false or misleading where he testified that he hoped for consideration but there was no deal worked out, and did not reveal that prosecution delayed transfer from county jail to State prison).

5.   The Superior Court docket reflects that the postconviction discovery motion was denied pursuant to the order denying the new trial motion; however that order makes no express ruling on the discovery motion. Irrespective of whether there was an explicit ruling on the discovery motion, the issue is properly before us on this appeal in connection with the defendant's new trial motion. See Donald v. Commonwealth, 437 Mass. 1007, 1007 (2002).

6.   Jones's two criminal cases were pending in Superior Court and in the Roxbury Division of the Boston Municipal Court Department (BMC). In the Superior Court case, the parties asked that the matter be set for a hearing in April 2009, before the judge who imposed the original sentence so that they could speak with her about amending the sentence. In the BMC case, the parties represented in March 2009, that they anticipated an agreed-upon motion to revise and revoke would be filed in that case, and that they anticipated Jones's Superior Court sentence would be altered at the April 2009 hearing.

7.   The remand is necessary to allow the defendant's motion for postconviction discovery of all information concerning the prospective resentencing of Jones. If, after discovery, the defendant is able to raise a “substantial issue,” he may file a motion for a hearing on and a renewed motion for a new trial. Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). Should the judge, after any proceedings she deems necessary, deny the defendant's renewed motion, the defendant would be entitled to appeal from the order to the extent that new evidence is gleaned from discovery relevant to his request for a new trial; the remainder of his appeal has been disposed of by this panel.