COMMONWEALTH v. Joseph BENNETT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case has had a long procedural history. After being convicted of murder in the second degree in 1998, the defendant has unsuccessfully pursued a direct appeal and three distinct motions for new trial before finally prevailing on his motion to reconsider the denial of his third motion for new trial. The judge allowed the motion to reconsider on the basis of newly discovered evidence in the form of several witnesses who the judge determined were either unknown or not reasonably discoverable by the defense at the time of trial, and who provided exculpatory testimony at the evidentiary hearing. We conclude that the judge did not abuse his discretion in allowing the motion for new trial as to the charge of murder.
1. Background. The motion judge has provided a very thorough summary of the case's facts and procedural history, of which the parties are no doubt familiar. We will not recite them in their entirety, and will instead focus on what is most relevant to the outcome of this case.
In February of 1997, the defendant was indicted on several crimes arising from two separate shootings: a January 4, 1997 shooting in the Grove Hall area of Boston (Grove Hall shooting) and another shooting in the early hours of January 9, 1997 at the Rolls Club in Mattapan (Rolls Club shooting) that resulted in the death of Jasper Gillard. The defendant was tried for both shootings in a single trial. This appeal pertains primarily to the Rolls Club shooting, for which the defendant was charged with murder, G. L. c. 265, § 1, among other firearms-related charges.
Prior to the shooting at the Rolls Club, witnesses testified that a fight broke out in the club and several patrons were thrown out, including Gillard and the defendant. Shortly thereafter, witnesses saw Gillard involved in another fight in the club, and it was during this second fight that Gillard suffered a fatal gunshot wound. The Commonwealth's chief evidence at trial was the testimony of Terrell Dilworth, who said he was one hundred percent certain that the defendant shot Gillard during the second altercation. No other witnesses, either for the prosecution or defense, saw who shot Gillard; two prosecution witnesses testified that they saw the defendant back inside the club just prior to the shooting, while three defense witnesses testified that they did not see defendant back inside the club after being kicked out. The Commonwealth also introduced evidence that the bullets recovered at the Grove Hall shooting and the Rolls Club shooting were a “positive match,” and were fired from the same gun.
On April 23, 1998, the jury returned guilty verdicts on eight counts, including murder in the second degree for the shooting of Gillard. The defendant's direct appeal was unsuccessful and three subsequent motions for new trial were also rejected. In every motion for new trial, the defendant presented what he claimed was newly discovered evidence in the form of affidavits from witnesses, and in every denial, the judge found that the witnesses were either not newly discovered or that their testimony was cumulative of evidence presented at trial.
On February 25, 2016, the defendant filed his motion to reconsider the denial of his third motion for new trial, basing his argument on ineffective assistance of counsel and newly discovered evidence. The defendant asserted several grounds for his ineffective assistance of counsel claim, including counsel's decision not to call Kendrick Clark as a witness, even though he would have provided an alibi for the defendant, and counsel's inadequate investigation of potential witnesses. Regarding his claim of newly discovered evidence, the defendant provided five additional affidavits from witnesses related to the Rolls Club shooting.
The motion judge held an evidentiary hearing during which he heard testimony from seven witnesses to the Rolls Club shooting who had provided affidavits, as well as testimony from the defendant's trial lawyer. Based on the hearing, the judge issued a thorough forty-two page decision. The judge quickly dismissed two of the defendant's grounds for ineffective assistance of counsel, finding that they were waived and that the defendant failed to demonstrate prejudice from the errors. The judge found that defense counsel's inadequate investigation of witnesses and his decision not to call Clark as an alibi witness constituted performance falling measurably below what would be expected of an ordinarily fallible lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). However, the judge concluded that on the existing record, the defendant did not prove prejudice.
Regarding the defendant's argument about newly discovered evidence, the judge noted that “[t]hrough his various motions for new trial, the defendant had now brought forward at least [fourteen] witnesses who provided sworn statements” exculpating the defendant. Although the same judge had denied the defendant's most recent new trial motion, he found several of these witnesses to be independently credible and that many of them were not known to the defense at the time of trial or at the time of the second motion for new trial. The judge also determined that, under the recently decided case Commonwealth v. Drayton, 479 Mass. 479 (2018), many of the witnesses were indeed newly discovered because they “almost surely would not have cooperated with defense counsel at the time of trial because of their loyalty to a ['no snitching'] street code or for other reasons personal to them.”
Additionally, the judge found that the new evidence presented by the defendant was not merely cumulative of evidence presented at trial -- while defense witnesses at trial merely testified to not observing the defendant inside the club at the time of the shooting, many of the new witnesses went beyond nonobservation testimony by asserting that another person was the shooter, the defendant was outside the club at the time of the shooting, or the shooter was not the defendant or was a person physically different from the defendant. Having made these findings, the judge said, “Given all of the new evidence indicating that a different person shot Jasper Gillard, I find that justice may not have been done in this case as it relates to the murder charge, and I grant the defendant's motion for a new trial on that charge.” The Commonwealth has appealed and the defendant has cross-appealed.
2. Discussion. A judge may grant a defendant a new trial “if it appears that justice may not have been done.” Commonwealth v. Brescia, 471 Mass. 381, 389-390 (2015). In deciding whether justice may not have been done, the determination is made “on a case by case basis,” Commonwealth v. Lombardi, 378 Mass. 612, 616 (1979), and allows judges to “exercise their ‘broad discretion,’ ” Commonwealth v. Pring-Wilson, 448 Mass. 718, 737 (2007). See Brescia, supra at 390-391. We review such a decision for a significant error of law or abuse of discretion, and “we defer to [the] judge's assessment of the credibility of witnesses at the [evidentiary] hearing on the new trial motion.” Drayton, 479 Mass. at 486, quoting Commonwealth v. Cousin, 478 Mass. 608, 615 (2018).
While the judge ultimately concluded that a new trial was warranted because justice may not have been done in this case, he based this conclusion on the defendant's claim of newly discovered evidence. When making such a claim, the defendant must show that “the evidence is newly discovered and that it casts real doubt on the justice of the conviction.” Drayton, 479 Mass. at 489, quoting Commonwealth v. Drayton, 473 Mass. 23, 39 (2015) (Drayton I). For evidence to be “newly discovered, the defendant must show that the evidence was ‘unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial.’ ” Drayton, supra, quoting Drayton I, supra. “In determining whether the newly discovered evidence would have been a real factor in the jury's deliberations, we focus on ‘what effect the omission might have had on the jury’ rather than on whether the verdict would have been different.” Drayton, supra at 490, quoting Commonwealth v. Cowels, 470 Mass. 607, 623 (2015). “The over-all strength or weakness of the evidence presented against a defendant is significant ․ because it provides the context within which to assess whether the newly discovered evidence would have been a real factor in the jury's deliberations.” Drayton, supra, quoting Cowels, supra.
The Commonwealth raises a series of arguments against the judge's ruling, all of which we find do not demonstrate that the judge committed a significant legal error or abused his discretion. First, the Commonwealth contends that the judge erred because evidence of the defendant's guilt at trial was strong. The Commonwealth's case primarily rested on a single eyewitness to the shooting, Dilworth, whose testimony was inconsistent with other Commonwealth evidence at trial. The Commonwealth also presented ballistics evidence showing that the same gun used during the Grove Hall shooting was also used at the Rolls Club shooting. This ballistics evidence, the Commonwealth argued, meant that if the defendant committed the Grove Hall shooting, that was evidence that he also committed the Rolls Club shooting and vice versa.2 However, as the judge noted, the strength of the inference from the “same gun, same guy” theory was subject to challenge -- even if the defendant committed the Grove Hall shooting, it would not necessarily mean he also committed the Rolls Club shooting since the gun may have been shared amongst several people, or it may have gotten into the hands of someone else after the defendant had disposed of it. Indeed, the defendant could well be reluctant to carry or use a firearm after it was used in a shooting just a few days earlier. The Commonwealth also presented two witnesses who saw the defendant in the club at the time of the shooting, but they were counterbalanced by the three defense witnesses who did not observe the defendant in the club at that time. Having examined the strongest evidence presented by the Commonwealth at trial, we discern no error in the judge's conclusion that the Commonwealth's evidence was “hardly overwhelming.”
Second, the Commonwealth argues that the judge erred in concluding that the posttrial witnesses were newly discovered evidence because the new witnesses provided evidence that was available through other known or easily discoverable witnesses at the time of trial. For instance, the Commonwealth argues that because the defendant knew at the time of trial that Clark saw the defendant outside the club at the time of the shooting, the posttrial witnesses who offered similar testimony were not providing any new evidence that wasn't already known at the time of trial. Although that is a creative argument, the judge did not commit legal error by focusing on whether the posttrial witnesses themselves were known or reasonably discoverable by the defendant rather than adopting the Commonwealth's approach. Indeed, even if Clark had testified at trial, it would not mean that the posttrial witnesses with similar testimony were not newly discovered, since the witnesses were not known or reasonably discoverable by the defendant, thus satisfying the test for being newly discovered evidence -- rather, their testimony could be deemed cumulative and unlikely to have affected the jury. See Commonwealth v. Lykus, 451 Mass. 310, 330 (2008) (FBI voiceprint laboratory report considered to be newly discovered evidence even though it was cumulative of testimony of expert witness). The Commonwealth erroneously conflates the test for newly discovered evidence with the test for cumulativeness.
With respect to cumulativeness, the Commonwealth next argues that the evidence presented by the posttrial witnesses was merely cumulative of evidence presented at trial and thus would not have cast real doubt on the justice of the conviction. The judge acknowledged that, indeed, some of the posttrial evidence was cumulative of witnesses who testified at trial to not observing the defendant in the club at the time of the shooting. The judge noted, however, that in the case of such nonobservation testimony, “five pairs of eyes are better than three,” and that additional testimony to this effect “may have had some incremental additional probative weight.” More significantly, the judge noted that the testimony of the posttrial witnesses went well beyond mere nonobservation testimony -- witnesses testified that they saw a different individual who was not the defendant shoot the victim or that they observed the defendant outside at the time of the shooting. Deferring to the judge's assessments of the posttrial witnesses' credibility, we discern no error or abuse of discretion in concluding that the quantity and quality of evidence presented made it not cumulative of evidence presented at trial.
The Commonwealth, however, goes further and contends that the witnesses the defendant brought forward in the third motion for new trial and the motion for reconsideration were cumulative not just of evidence actually presented at trial, but also of witnesses who were allegedly known to the defense at the time of trial and were not called to testify and of those who submitted affidavits in support of the defendant's first and second motions for new trial. We are unaware of any caselaw that suggests that the effect of newly discovered evidence on jury deliberations should be measured by anything but what was actually admitted at trial, nor does the Commonwealth cite any. See, e.g., Commonwealth v. Cintron, 435 Mass. 509, 518 (2001) (“Mario's testimony would have also been cumulative of what was already admitted at trial, and that type of evidence carries less weight than new evidence different in kind” [emphasis added]); Commonwealth v. Horton, 434 Mass. 823, 837 (2001) (“We find no error in the judge's conclusion that Leotti's affidavit was consistent with and merely cumulative of the testimony at trial” [emphasis added]). Furthermore, there is good reason to limit the analysis of cumulative evidence to evidence admitted at trial. There are myriad practical, legal, and strategic reasons why evidence known to the defendant at the time of trial was not admitted at trial, making it nearly impossible for the judge to determine which of these pieces of evidence should or should not be a part of the calculus. Nor would it be fair to then include in the analysis all evidence known to the defendant at the time of trial, since there may be legitimate reasons why evidence known to the defendant was not used at trial. Therefore, we find that the judge did not err by analyzing whether the newly discovered evidence was cumulative only of evidence admitted at trial.
We conclude that the judge did not commit an error of law or abuse his discretion in finding that the posttrial witnesses presented by the defendant were newly discovered and not cumulative of evidence admitted at trial, and, because justice may not have been done in this case, a new trial was warranted.3 In affirming the judge's ruling, however, we note that this case turns ultimately on the deference owed to a trial judge's credibility determinations. We recognize that another judge could have ruled the other way, as the judges had in the three previous unsuccessful motions for new trial. The judge could have disbelieved testimony regarding the “no snitch” code and found that the evidence was reasonably discoverable by the defendant. The judge could have found the witnesses lacked credibility and were not telling the truth regarding what they saw the night of the shooting. The judge did, in fact, have to completely discredit one of the posttrial witnesses who provided detailed testimony of seeing someone who was not the defendant shoot the victim, but who appears to have been incarcerated at the time of the shooting. Nevertheless, the judge did find that the other witnesses were credible and the defendant was entitled to a new trial. Only he, and not we, heard that testimony, and his credibility judgment was within his discretion.
Having affirmed the judge's order for a new trial for the murder charge, we need not and do not reach the judge's analysis of the ineffective assistance of counsel claims as they relate to that charge. Thus, we need not reach the difficult question of whether failing to call Clark, an alibi witness for the Rolls Club shooting, was ineffective assistance that was prejudicial to the defendant. We also need not reach the defendant's claim that counsel was ineffective for his failure to conduct an adequate investigation of witnesses because it focuses exclusively on the Rolls Club murder conviction.4 We also find that the judge did not abuse his discretion in ruling that the defendant's other two claims for ineffective assistance of counsel were waived and that defendant failed to demonstrate prejudice from those errors.5
Lastly, the defendant contends that in light of the judge's order for a new trial on the Rolls Club shooting, the judge should have granted a new trial on the Grove Hall convictions as well. Where the Commonwealth used the “same gun, same guy” theory based on ballistics evidence that matched the gun used at both shootings, the defendant argues that the new witnesses that cast doubt on the defendant's guilt in the Rolls Club shooting would have also weakened the evidence against the defendant for the Grove Hall shooting enough to cast substantial doubt on those convictions as well.
It only makes sense to put forward this specific argument after the judge granted the defendant a new trial on the Rolls Club murder charge, so it is unsurprising that it was not raised in the defendant's third motion for new trial or in his motion for reconsideration.6 Thus, the judge did not address this argument in either of his rulings, though by explicitly granting a new trial only on the murder charge, he implicitly rejected granting a new trial on the Grove Hall shooting charges. Even assuming the argument is not waived, we conclude that the judge did not abuse his discretion by failing to grant a new trial for the Grove Hall shooting convictions.
No new evidence has been presented by the defendant regarding the Grove Hall shooting, nor has the defendant made any successful posttrial arguments for overturning the Grove Hall convictions. We acknowledge that the Commonwealth's evidence against the defendant for the Grove Hall shooting was not overwhelming, consisting primarily of the substantive admission of grand jury testimony of two eyewitnesses who were uncooperative at trial. We also recognize that the ballistics evidence “matching” the gun used at both shootings likely played some role in the jury's decision. However, the defendant overestimates the importance of that evidence in seeking to have the Grove Hall convictions be overturned. The effect on the jury of the ballistics match evidence was likely limited because of the weaknesses of the “same gun, same guy” theory that were noted by the judge in his decision and the defendant in his brief, and which we also addressed earlier in this decision. Moreover, at most, the newly discovered evidence weakened the probative value of the ballistics match evidence and its corroboration of the two grand jury testimonies -- it did not weaken the independent credibility and probative value of the grand jury statements themselves, which were the Commonwealth's primary evidence for the Grove Hall shooting.7 Therefore, we affirm the judge's decision to grant a new trial only on the Rolls Club murder indictment.
Order dated April 16, 2019, allowing motion for new trial as to the charge of murder affirmed.
2. The defendant called into question the ballistics expert's testimony itself in his posttrial motions. The defendant argued in both his third new trial motion and his motion for reconsideration that the certainty with which the Commonwealth's ballistics expert offered her opinion regarding the ballistics “match” did not conform to contemporary standards for such evidence. See Commonwealth v. Heang, 458 Mass. 827, 846-850 (2011). The judge agreed but declined to award a new trial on this basis because such contemporary standards have not been applied retroactively and the defendant failed to demonstrate prejudice from the manner in which the evidence was presented.
3. Even if some of the newly discovered evidence were considered cumulative, that would not require the motion judge to disregard it. Such cumulative evidence “carries less weight than new evidence different in kind,” Cintron, 435 Mass. at 518, but may still be considered.
4. The defendant argues in his appellate brief that this claim also applies to the Grove Hall convictions, but fails to mention any specific witnesses or evidence related to the Grove Hall shooting that defense counsel failed to investigate, nor does he do so in his motion to reconsider. This claim, therefore, fails.
5. Regarding defense counsel's failure to move sooner to preserve a vehicle involved in the Grove Hall shooting so that it could be examined by a defense ballistics expert, the defendant could only speculate as to what difference it would have made had the defense been able to examine the vehicle. Regarding defense counsel's failure to object to holding the evidentiary hearing for the motion to suppress so close in time to the trial because he was unable to acquire transcripts from that hearing in time to impeach witnesses at trial, the inconsistencies that could have been discovered by having the transcripts were minor and the defendant admits defense counsel did impeach the witness with the most inconsistent testimony.
6. Appellate counsel for both the Commonwealth and the defendant stated at oral argument that the issue was in fact raised in the third motion for new trial. We were unable to find any indication that it was, but since we assume the argument was not waived, we need not dwell on this discrepancy.
7. Regarding the defendant's argument that convictions based exclusively on inconsistent extrajudicial testimony cannot stand based on Commonwealth v. Daye, 393 Mass. 55, 74-75 (1984), we note that the judge's granting of a new trial weakens but does not eliminate the evidence that the same gun was used at both shootings and Dilworth's testimony that the defendant was the shooter at the Rolls Club, which are sufficient to corroborate the two grand jury statements.
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