COMMONWEALTH v. HUNT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Timmy Hunt, filed a motion for a new trial seeking to vacate his 2015 guilty plea for unlawful possession of a firearm on the basis of newly discovered evidence.² A Superior Court judge granted his motion. The Commonwealth now appeals, claiming, inter alia, that the judge committed reversible error by failing to hold an evidentiary hearing on the motion. We agree. And, because it is likely to arise on remand, we also discuss the admissibility of the newly discovered evidence on the limited record before us. Accordingly, we vacate the order granting Hunt's motion for a new trial and remand the case for an evidentiary hearing on that motion.

Background. 1. The crime and plea. On June 5, 2014, police officers working with the Boston Police Department (BPD) arrived at an apartment to execute an arrest warrant for Hunt and another individual. Although the officers repeatedly knocked at the door and announced their presence, no one responded. Because they were aware that Hunt had a criminal history of firearm possession, the officers were concerned that he would attempt to flee or arm himself. The officers breached the entrance, and Hunt was located in a back bedroom.

The officers then conducted a protective sweep of the apartment to search for the other individual. In so doing, Detective Brian Smigielski looked inside a closet in one of the bedrooms where he observed an open box containing a firearm.³ Smigielski applied for, and was granted, a search warrant. The firearm -- a loaded .45 caliber semi-automatic pistol with a large capacity feeding device -- was recovered from the closet. Hunt's fingerprint was found on the magazine.

A grand jury indicted Hunt on a variety of firearm offenses. On January 13, 2015, Hunt filed a motion to suppress the evidence observed during the execution of the arrest warrant. Before the hearing on the motion to suppress, the Commonwealth and Hunt reached a plea agreement. On March 17, 2015, Hunt agreed to plead guilty to one count of unlawful possession of a firearm in exchange for the dismissal of the remaining charges. See G. L. c. 269, § 10 (a). The judge found that Hunt's plea was knowing and voluntary, and he was sentenced pursuant to the parties' sentencing agreement.

2. Hunt's motion for new trial. a. Smigielski's Federal conviction. Approximately six months after Hunt pleaded guilty, Smigielski was charged, by way of information, in the United States District Court for the District of Massachusetts with one count of conspiracy to defraud the United States, pursuant to 18 U.S.C. § 371. In essence, it was alleged that between about 2009 and 2011, Smigielski conspired with another Boston police officer and two gang members to “impair and impede the [Federal Bureau of Investigation (FBI)] investigation of the [Academy Homes Street Gang (AHSG)].” The allegations concerned Smigielski's attempts to thwart a coordinated investigation by the FBI and BPD into the AHSG by informing gang members of the existence and status of that investigation. On September 29, 2015, Smigielski pleaded guilty to the facts set forth in the information; on January 29, 2016, the plea was accepted and he was sentenced.

b. The motion and disposition. On January 3, 2018, Hunt filed a motion for a new trial on the ground that Smigielski was under Federal investigation at the time of the plea. Hunt contended that Smigielski was a primary witness whose testimony was dispositive to the Commonwealth's case at either the motion to suppress or at trial. Hunt's trial and appellate counsel attested that Hunt would have forgone his guilty plea had he known at the time that Smigielski was under Federal investigation. Hunt argued that given Smigielski's criminal background, it was possible that Smigielski “would take the steps necessary, even if [they] impair[ed] the integrity of [the] investigation, to ensure that ․ Hunt ․ was charged with serious felonies.” The Commonwealth filed an opposition on July 31, 2018, arguing that the evidence of Smigielski's Federal investigation was not admissible and that Hunt had not raised a substantial issue in light of the strong case against him and the favorable plea he received.

The judge granted Hunt's motion without a hearing.⁴ The judge found that Hunt raised a substantial issue entitling him to vacate his guilty plea. Specifically, she concluded that “[t]he evidence of the federal investigation of Detective Smigielski's conduct that involved manipulating investigations to suit his personal desired outcomes [met] the standard for newly discovered evidence.” Concerning whether such evidence would be admissible, the judge “disagree[d]” that admissibility was a prerequisite to granting the motion at this stage because, in her view, the proper standard was whether the evidence “casts real doubt on the justice of the conviction.”⁵ The judge concluded that Hunt met this standard. Finally, the judge credited “[Hunt's] and his counsel's representations that they would not have accepted the guilty plea and would have proceeded with the potentially dispositive motion to suppress the firearm, or to trial.”⁶ This appeal followed.

Discussion. “It is well established that, [i]n reviewing the denial or grant of a new trial motion, we examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion” (quotation and citation omitted). Commonwealth v. Brescia, 471 Mass. 381, 387 (2015).

On appeal, the Commonwealth claims that the judge improperly allowed the motion for a new trial without an evidentiary hearing. The Commonwealth also contends that the judge erred in failing to consider the admissibility of the newly discovered evidence. We agree with both claims, and since the issue is likely to arise on remand, we discuss the admissibility of the newly discovered evidence. See Commonwealth v. Hoppin, 387 Mass. 25, 32 (1982).

1. Whether an evidentiary hearing was required. In this case, the judge “took the remarkable step of granting the motion[ ] without holding an evidentiary hearing.” Commonwealth v. Ulbeira-Gonzalez, 87 Mass. App. Ct. 37, 40 (2015). “A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly.” Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). “The judge may decide the motion on the basis of affidavits without further hearing, ‘if no substantial issue is raised by the motion or affidavits’ ” (citation omitted). Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). As this court has recognized, however, the “power to grant such a motion on the papers is more circumscribed” than the power to deny it on the papers. Gordon, supra.

It was an abuse of discretion to grant Hunt's motion for a new trial without an evidentiary hearing in light of the substantial issue presented. Hunt supported his motion with affidavits from trial and appellate counsel. Both counsel attested that Hunt had a meritorious motion to suppress because Smigielski's assertion that he found the firearm in plain view was not credible. Therefore, had they known about the Federal investigation of Smigielski, they would not have advised Hunt to accept the plea. The Commonwealth asserted in opposition that the Federal investigation did not constitute newly discovered evidence because it would not have been admissible and, in light of the strong evidence against him, Hunt could not credibly claim that he would have forgone the plea. The judge credited these affidavits as a basis for concluding that Hunt would have not accepted the plea had he known of the Smigielski investigation. Without a hearing, however, the Commonwealth was not afforded “the opportunity to challenge the evidence presented in the affidavits.” Gordon, 82 Mass. App. Ct. at 395.

More significantly, the judge granted the motion in spite of the conflicting submissions presented by the parties and conflicting evidence in the record, which, in these circumstances, required an evidentiary hearing for resolution.⁷ See Commonwealth v. Lys, 481 Mass. 1, 6 (2018) (“If a motion judge finds that [the motion and affidavits] do present a substantial issue, then the judge must hold an evidentiary hearing” [emphasis added]); Gordon, 82 Mass. App. Ct. at 394-395 (identifying situations where hearing on new trial motion required). Under the unusual circumstances of this case, we are compelled to vacate the order granting the motion for a new trial. See Gordon, supra at 402; Commonwealth v. Caban, 48 Mass. App. Ct. 179, 183-184 (1999).

2. The newly discovered evidence. The judge determined that she need not consider the admissibility of the Smigielski evidence at this stage in the proceedings. She also fleetingly referenced Mass. G. Evid. § 404(b) as a ground for admissibility at trial. See note 5, supra. We find it prudent to make the following observations for the benefit of the parties on remand, with the caveat that our comments are cabined to the present record.⁸

“Where a defendant seeks a new trial on the basis of newly discovered evidence, he must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction” (quotation and citation omitted). Commonwealth v. Wright, 469 Mass. 447, 460 (2014). “The evidence said to be new not only must be material and credible but also must carry a measure of strength in support of the defendant's position” (citation omitted). Commonwealth v. Grace, 397 Mass. 303, 305 (1986). “The defendant also must show 'that any newly discovered evidence is admissible'” (citation omitted). Commonwealth v. Bonnett, 482 Mass. 838, 844 (2019).

Therefore, the judge erroneously “disagree[d]” with the Commonwealth's assertion that the admissibility of the Smigielski investigation was a prerequisite to granting a new trial. Nevertheless, on the record before us, the existence of the Smigielski investigation would not have been admissible as modus operandi evidence at trial. “Evidence of prior bad acts may not be admitted to show bad character or a propensity to commit crime.” Commonwealth v. Mazariego, 474 Mass. 42, 56 (2016). See Mass. G. Evid. § 404(b)(1) (2020). If this evidence is offered for a noncharacter purpose, such as identity, it may be admissible. See Mass. G. Evid. § 404(b)(2). “Generally, we characterize other act evidence that is admissible to show identity as 'modus operandi' evidence and allow its admission only where 'the prior events and the circumstances of the crime charged have such similarities as to be meaningfully distinctive'” (citation omitted).⁹ Commonwealth v. Veiovis, 477 Mass. 472, 483 (2017). Such identifying evidence must convey “a special mark or distinctiveness in the way the acts were committed” and “a uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the current and former incidents” (citations omitted). Commonwealth v. Jackson, 417 Mass. 830, 836 (1994).

Here, Smigielski pleaded guilty to impeding FBI and BPD gang investigations by aiding those who were the targets of said investigations. Hunt argued that this suggested a distinctive pattern of behavior that resulted in Smigielski taking the necessary steps to ensure that a firearm was found in plain view, leading to Hunt's conviction. We disagree. A law enforcement officer who assists targets of a criminal investigation in one instance yet allegedly ensures a conviction by manipulating evidence in the other has not acted in a “meaningfully distinctive” way (citation omitted). Veiovis, 477 Mass. at 483. See Commonwealth v. Campiti, 41 Mass. App. Ct. 43, 65-66 (1996). What ties these actions together is a willingness to disregard one's obligations as a law enforcement officer, which is merely another way of saying the evidence bears on the officer's propensity for wrongdoing. See Commonwealth v. Crayton, 470 Mass. 228, 250-251 (2014). At best, then, the Smigielski investigation constitutes impeachment evidence as to Smigielski's credibility. Whether this impeachment evidence merits a new trial is a matter for the judge to determine on remand.

Conclusion. The order allowing Hunt's motion for a new trial is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded

FOOTNOTES

2.   A defendant challenges a guilty plea with a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992).

3.   Other officers also observed, in a partially-opened dresser draw, individually wrapped bags containing what they believed was marijuana. This also served as a basis for the search warrant.

4.   The judge concluded that an evidentiary hearing was not necessary because Hunt “made an adequate showing on the issue raised in his written submission.”

5.   With respect to admissibility, the judge accepted Hunt's argument under Mass. G. Evid. § 404(b) as “sufficient at this stage to demonstrate that the identified evidence 'casts real doubt' on the justice of [the] plea.” In his memorandum in support of his motion, Hunt argued that the Smigielski evidence would be admissible under the modus operandi exception to the general prohibition on prior bad act evidence. See Mass. G. Evid. § 404(b) (2020).

6.   Hunt did not provide an affidavit. We take the judge's misstatement to mean that she credited the affidavits provided by Hunt's trial and appellate counsel.

7.   Commonwealth v. Vaughn, 471 Mass. 398 (2015) -- referenced by the judge in her decision and by Hunt on appeal -- does not command a different result. There, the Supreme Judicial Court concluded that the denial of a motion for a new trial without an evidentiary hearing did not constitute an abuse of discretion because the evidence presented in the motion was cumulative of the trial evidence. Id. at 405.

8.   The Commonwealth does not dispute that the Smigielski investigation evidence was “newly discovered” insofar as it was “unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial (or at the time of the presentation of an earlier motion for a new trial).” Commonwealth v. Grace, 397 Mass. 303, 306 (1986).

9.   “ ‘Modus operandi’ refers to ‘a pattern of criminal behavior so distinctive that investigators attribute it to the work of the same person’ ” (citation omitted). Commonwealth v. Magri, 462 Mass. 360, 364 n.6 (2012).