Commonwealth v. Norris ( 2019 )

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SJC-08998
COMMONWEALTH vs. JAMES NORRIS.
Hampden. September 10, 2019. - December 20, 2019.
Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
Homicide. Constitutional Law, Assistance of counsel. Evidence,
Exculpatory, Third-party culprit, Alibi. Practice,
Criminal, Capital case, Required finding, New trial,
Assistance of counsel, Preservation of evidence,
Disqualification of judge.
Indictment found and returned in the Superior Court
Department on March 7, 2000.
The case was tried before Tina S. Page, J.; a motion for a
new trial, filed on November 12, 2003, was considered by her;
and a motion for a new trial, filed on June 23, 2016, was heard
by her.
David H. Erickson for the defendant.
Joseph G.A. Coliflores, Assistant District Attorney, for
the Commonwealth.
CYPHER, J. On November 7, 2001, the defendant, James
Norris, was convicted of murder in the first degree on theories
of premeditation and extreme atrocity or cruelty in the stabbing
2
death of the victim, Aaron "Chad" Scott. The defendant's direct
appeal was consolidated with his appeals from the denials of his
two motions for a new trial. The defendant raises various
arguments on appeal. He asserts that his motion for a required
finding of not guilty should have been granted; that he received
ineffective assistance of counsel; and that the trial judge
erred in admitting improper and misleading evidence, failing to
sanction the Commonwealth appropriately for destroying
exculpatory evidence, and failing to recuse herself. Finally,
the defendant argues that the cumulative errors made during the
trial amount to a violation of due process and his right to a
fair trial.
After careful consideration of the defendant's arguments on
appeal from his conviction and from the denials of his two
motions for a new trial, we affirm his conviction and the
denials of the motions, and we decline to grant extraordinary
relief pursuant to G. L. c. 278, § 33E.
Background. We recite the facts the jury could have found,
viewing the evidence in the light most favorable to the
Commonwealth, while reserving certain details for later
discussion.
The defendant lived with a relative on Wilbraham Road in
Springfield. The defendant sold drugs for the victim and his
brother, who sublet a home on Brickett Street in Springfield
3
from the defendant. The victim's body was found in the early
morning hours of January 18, 2000, in the Brickett Street home
(house) after four anonymous 911 calls directed police to the
residence.
The previous evening, at approximately 10:30 P.M., the
defendant telephoned Dan Brunelle, a casual associate, to ask
for a ride to the house. Brunelle had driven the defendant to
the house many times before because Brunelle occasionally
purchased "crack" cocaine from the defendant or the victim.
When Brunelle arrived to pick up the defendant twenty
minutes later, the defendant got into Brunelle's van and said,
"I'm going to do Chad." After convincing Brunelle that he was
joking, the defendant asked Brunelle to stop a few doors away
from the house to pick up David Johnson, whom the defendant had
invited along to smoke marijuana.1 During the drive, Brunelle
complied with the defendant's request to lend Johnson his
gloves, but once they arrived at the house Brunelle became
nervous about the defendant's earlier "joke." He got out of the
van, stood by the front bumper, and demanded his gloves back.
Brunelle remained in the van while the defendant and
Johnson approached the house. Brunelle saw the pair enter the
1 The defendant and David Johnson previously sold drugs
together, became friends, and resumed a drug business when
Johnson was released from prison.
4
home, and a silhouette of a third person in the kitchen.
Brunelle testified that a moment later, Johnson "burst out"
through the storm door, turned around, and put his full weight
against the door, "containing what was clearly a struggle on the
inside." In a panic, Brunelle drove away to the home of Charles
Varner, whom Brunelle considered a brother-in-law.
Johnson testified that when he entered the home behind the
defendant, the defendant and victim had already begun to fight.
During that fight, the two men fell against the storm door,
which swung open and hit Johnson in the face. After pushing the
door shut, Johnson heard the victim say, "Are you going to leave
me for dead? Are you going to leave me for dead? I got kids .
. . I got little boys," but all Johnson could see was the
defendant's arm making "up and down" movements. As Johnson
backed away from the door, it "flew open," and the defendant
called out to Johnson for help with the victim's body. Shocked
and believing the defendant had a knife on him, Johnson remained
at the scene, where he witnessed the defendant try to push the
victim's body down a flight of stairs before taking a pot of
water that was on the stove and splashing it throughout the
kitchen and the exterior of the home.
Once Johnson left the scene, the defendant followed.
Johnson testified that after going to a bar to get change, the
defendant used a pay telephone to call someone to help him
5
dispose of the body and clean up. As Johnson and the defendant
returned to the scene, Johnson saw a vehicle in the driveway.
Inside the vehicle were Varner and his friend, Keith
Freeman, who had arrived at the house after Brunelle had told
the men what he had witnessed. Varner testified that when he
and Freeman initially arrived at the scene, Varner knocked on
the door, but no one answered. As he turned to get back into
his vehicle, he saw the defendant, who told him to leave. When
Varner informed the defendant that Brunelle had been to his
house and that he was there to see "what was going on," the
defendant told Varner that Brunelle was a liar, that there had
been "a little beef," and that the police had already been
there.
Varner and Freeman began to drive away but then turned
around after deciding that things did not "seem right."2 When
they returned, Varner demanded to know where the victim was.
The defendant claimed that the victim was not there. Despite
the defendant's protests, Varner and Freeman entered the home
and saw the victim's jacket in the kitchen. Again, Varner
2 Johnson testified that he watched this interaction between
the defendant and a man in a vehicle. Once Johnson observed the
vehicle leave and return, he fled the scene and went to his
mother's house. A short time later, the defendant arrived
again, asking Johnson to help him dispose of the body. After
Johnson refused, he and the defendant had no further
communication that evening.
6
demanded to know where the victim could have gone without a
jacket, and Varner and Freeman began to go from room to room,
"yelling" the victim's name. While they searched the house, the
defendant followed closely behind, pleading with them to leave.
As they again passed through the kitchen, Varner noticed
for the first time what he believed to be a bloody fingerprint
on the wall. At some point, Varner and Freeman walked past the
door to the basement stairs. When they looked down, they
discovered the bloody body of the victim. Varner told the
defendant that he was calling the police before he and Freeman
left the scene. Varner placed his first telephone call to 911
at 11:42 P.M.
At approximately 3 A.M. on Tuesday, January 18, 2000, the
defendant contacted a friend, Bernard Williams, and asked him to
come over to his house. The defendant confessed to Williams
that he had stabbed the victim to death and had thrown his body
down the stairs. Williams testified that the defendant killed
the victim because "things had built up for a long time . . .
[t]hey weren't treating him right . . . it was over money and
disrespect."
At the close of the Commonwealth's case, the defendant's
motion for a required finding of not guilty due to insufficient
evidence was denied. The jury found the defendant guilty of
7
murder in the first degree on theories of premeditation and
extreme atrocity or cruelty, and the defendant appealed.
After entry of the defendant's appeal in this court, he
filed a motion for a new trial asserting that his trial counsel
had been ineffective for failing to investigate and use an alibi
defense and forensic evidence, and for failing to impeach a key
witness for the Commonwealth.3 The motion judge, who also was
the trial judge, denied that motion without a hearing, and she
also denied the defendant's motion for reconsideration without a
hearing. The defendant appealed from the denial.
After filing a motion for deoxyribonucleic acid (DNA)
testing, which was granted, the defendant filed a second motion
for a new trial. After an evidentiary hearing, the defendant's
motion was denied. He appealed, and that appeal was
consolidated in this court with the appeal from his conviction
and with the appeal from the denial of his first motion for a
new trial.
Discussion. 1. Denial of motion for a required finding of
not guilty. The defendant argues he was entitled to a not
guilty verdict as a matter of law because there was legally
3 The defendant's motion contained a request for funds to
investigate and locate individuals supporting his alibi defense,
to obtain a criminalist to review photographic and shoeprint
evidence, and to test any material found under the victim's
fingernails.
8
insufficient evidence connecting him to the crime.
Specifically, he argues that the lack of forensic evidence -- no
murder weapon was found, no DNA linked the defendant to the
crime, and there was no definitive shoe print match --
"vindicate[s]" him in the face of "the testimony of professed
crack cocaine addicts or others with a motive to lie."
This court must determine whether the evidence was
sufficient to satisfy a rational trier of fact of each element
of the crime beyond a reasonable doubt. Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979). "The relevant question
is whether the evidence would permit a jury to find guilt, not
whether the evidence requires such a finding." Commonwealth v.
Brown, 401 Mass. 745, 747 (1988). The evidence against the
defendant was substantial. Two witnesses placed the defendant
at the scene of the crime, one of whom effectively witnessed the
defendant murder the victim. Two other witnesses arrived on the
scene as the defendant was attempting to dispose of the body or
otherwise cover up the crime. A fifth witness testified that
the defendant confessed to committing the murder a few hours
after the crime took place.
"Once sufficient evidence is presented to warrant
submission of the charges to the jury, it is for the jury alone
to determine what weight will be accorded to the evidence."
Commonwealth v. Ruci, 409 Mass. 94, 97 (1991), quoting
9
Commonwealth v. Hill, 387 Mass. 619, 624 (1982). While the
defendant portrays these witnesses as untrustworthy addicts,
"[c]redibility is a question for the jury to decide; they may
accept or reject, in whole or in part, the testimony presented
to them." Commonwealth v. Fitzgerald, 376 Mass. 402, 411
(1978). The defendant's claim that the testimony of the
witnesses at his trial "was inherently unreliable is nothing
more than an issue of credibility, an issue that is solely
within the province of the jury." Commonwealth v. James, 424
Mass. 770, 785 (1997). There was no error.
2. Ineffective assistance of counsel. In this
consolidated appeal, the defendant raises the same ineffective
assistance of counsel arguments asserted in his motions for a
new trial. We review the defendant's claim of ineffective
assistance of counsel under G. L. c. 278, § 33E,4 which provides
a standard of review more favorable than the constitutional
standard of review of such claims. See Commonwealth v. Wright,
411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
Accordingly, we determine "whether there was an error in the
course of the trial (by defense counsel, the prosecutor, or the
judge) and, if there was, whether that error was likely to have
4 The defendant incorrectly states that his motions for a
new trial were entitled to plenary review by the motion judge
pursuant to G. L. c. 278, § 33E. This is inaccurate. However,
the defendant is entitled to plenary review by this court.
10
influenced the jury's conclusion." Wright, supra. "Where, as
here, the trial judge also considered the motion for a new
trial, we extend 'special deference' to the judge's action on
the motion" (citation omitted). Commonwealth v. Barnett, 482
Mass. 632, 638 (2019).
a. Failure to impeach the Commonwealth's theory or
timeline of events. The defendant argues that trial counsel
failed to impeach the Commonwealth's theory of events using two
key pieces of evidence: photographs of a dresser with bloody
handprints located at the scene and Johnson's testimony that he
was watching the third quarter of a televised professional
basketball game when the defendant arrived to pick him up.
The defendant suggests that the photographs of the dresser
demonstrate that "the house was searched, and that whoever did
this appears to have left the property with great dispatch,"
thereby contradicting the Commonwealth's theory that the
defendant killed the victim and remained at the scene for some
time afterward. Further, the defendant asserts that this
evidence contradicts the Commonwealth's "strong inference . . .
that Norris was wearing gloves."
As the motion judge noted, "[t]his argument is purely
speculative, as the defendant offers no support for his
contention that evidence of the handprints would actually be
inconsistent with [the defendant] having committed the crime."
11
The first 911 call reporting a disturbance occurred at 11:42
P.M. Police did not secure the crime scene until after the
third 911 call was made after 3:30 A.M. Therefore, the victim
was immobile in his home for over three hours. The possibility
that an unknown third party could have entered and ransacked the
home during that time does not preclude the jury from finding
that the defendant committed the murder. This evidence is
unlikely to have influenced the jury's conclusion in any way.
The defendant also cites his trial counsel's failure to
impeach a key prosecution witness, Johnson, who testified that
he was watching a basketball game when the defendant picked him
up to go to the victim's home. When asked if he remembered what
time the defendant picked him up, Johnson testified, "It was at
night, about -- I know it was a double basketball game that day,
but I don't remember what time it was. It was the Spurs they
were playing, I know that much." When asked if he remembered at
approximately what part of the basketball game the defendant
arrived, Johnson responded, "Yes, almost the end of the third
quarter." The defendant argues that after trial, it was
determined that the basketball game Johnson referred to "began
at 9:30 P.M. San Antonio time, later Springfield time, and ran
two hours and 14 minutes." Thus, Johnson could not have been
watching this game until the end of the third quarter and been
with the defendant at the time of the killing.
12
"Generally, failure to impeach a witness does not amount to
ineffective assistance of counsel." Commonwealth v. Fisher, 433
Mass. 340, 357 (2001). Even using the more favorable standard
of review under § 33E, a claim of ineffective assistance based
on failure to use particular impeachment methods is difficult to
establish. Id. "Trial counsel does not necessarily provide
ineffective assistance by 'not prob[ing] every inconsistency"
(citation omitted). Commonwealth v. Jewett, 442 Mass. 356, 363
(2004). "[A]bsent counsel's failure to pursue some obviously
powerful form of impeachment available at trial, it is
speculative to conclude that a different approach to impeachment
would likely have affected the jury's conclusion." Commonwealth
v. Hudson, 446 Mass. 709, 715 (2006), quoting Fisher, supra.
Here, impeachment as to the timing of the basketball game was
unlikely to have influenced the jury, given that Brunelle
testified that he brought the defendant and Johnson to the
victim's house sometime after 10:30 P.M.5
5 The defendant argued in his first motion for a new trial
that "trial counsel was ineffective in impeaching Commonwealth
witnesses with prior convictions." This claim has no merit.
The defendant fails to identify which witness he is referring to
or the nature of the convictions. Additionally, the
Commonwealth's key witnesses all testified to current or former
drug use, and the defendant has failed to establish how the
introduction of a prior conviction would have influenced the
jury.
13
b. Failure to properly investigate forensic evidence. The
defendant argues that trial counsel failed to properly
investigate and use two significant pieces of forensic evidence:
the defendant's alleged footprint at the scene of the crime and
DNA material found under the victim's fingernails.
At trial, a State trooper testified about numerous
footprints that were found at the crime scene. She stated that
a footprint that was found outside the house where the defendant
was living was "consistent in tread pattern and overall physical
size and shape" to footprints found at the Brickett Street
house, allowing an inference that the footprints at the scene
belonged to the defendant. The defendant maintains that if
trial counsel had sought and obtained an expert in footprint
evidence, he would have discovered that the footprint "was very
far from a match." Such evidence was unlikely to have
influenced the jury. First, numerous witnesses placed the
defendant at the house and at least one saw the defendant in a
struggle with the victim. Second, through cross-examination,
trial counsel made the point that no footprints from anywhere
matched a pair of sneakers that police had taken from the
defendant. Finally, this footprint evidence was not a
substantial component of the Commonwealth's case.6 In closing
6 The Commonwealth made no mention of the footprints in its
opening statement. In closing argument, the Commonwealth
14
argument, the prosecutor cautioned the jury, "So, the footwear
evidence in this case is not evidence that you should rely upon
exclusively to reach some finding of guilt, but it is
consistent, it is corroborative of the remainder of the
evidence."7
The defendant also argues that trial counsel was
ineffective for not testing the material found under the
victim's fingernails. As presented during the evidentiary
hearing on the second motion for a new trial, the testing
revealed that the only DNA present under the victim's
fingernails belonged to the victim himself. There was no DNA
detected that could be attributed to a known or unknown third
party. Had these results been presented at trial, they would
not have influenced the jury's verdict. Contrast Commonwealth
v. Cameron, 473 Mass. 100, 102 (2015) ("the newly available DNA
evidence that conclusively excludes the defendant as a possible
devotes only two sentences to this footprint: "There is another
set of prints outside the [Brickett Street] house. They are
consistent with a print found at the defendant's home, outside
of the defendant's home . . . ."
7 In his first motion for a new trial, the defendant also
argues that an expert should have been used to examine
photographs of cuts on his hands, which he claimed resulted from
removing Christmas lights. The defendant has not shown that
this would have helped him at trial where four witnesses put him
at the scene of the murder.
15
donor likely would have been a real factor in the jury's
deliberations").
c. Failure to investigate alternative theories or
suspects. The defendant alleges trial counsel failed to
investigate a variety of alternative theories and suspects.
First, he argues that trial counsel did not offer evidence that
police responded to the house to a report of a disturbance
before the response when the victim was discovered and that, at
that time, they found no blood or evidence of violence. At the
hearing on the defendant's second motion for a new trial one of
the police officers who had responded to the earlier call about
this disturbance testified to details of what he and his partner
did (i.e., checked the doors, walked around the house).
We begin by noting that, at trial, a police officer who had
responded to the house when the victim was found testified that
there had been an earlier call to which officers had responded
but had found nothing. Thus, this information was before the
jury. In any event, it is unclear how this evidence casts doubt
on the Commonwealth's theory of the crime. As the motion judge
observed, "Had such testimony been introduced, the jury could
have inferred from the evidence at trial that the defendant
committed the crime and left the scene only to return to the
scene later and transfer the blood to the door and snow at that
time."
16
Second, the defendant asserts that trial counsel did not
introduce evidence of other parties with possible motives to
kill the victim, including unknown drug associates from New York
City and the victim's own brother, Rico, who apparently
disappeared after the murder. Third, the defendant asserts that
trial counsel failed to address the additional vehicles parked
at the home on the night of the crime, as well as a tire track
found then.
Defense counsel did present a third-party killer theory at
trial by attempting to implicate two of the Commonwealth's key
witnesses -- Brunelle and Johnson. However, typically, we do
not characterize strategic decisions as ineffective assistance
merely because they prove unsuccessful. See Commonwealth v.
White, 409 Mass. 266, 272 (1991). We agree with the judge that
the defendant has failed to identify any material evidence trial
counsel would have discovered had he pursued these additional
suspects; that there is nothing to indicate the outcome of trial
would have been different had counsel advanced these other
third-party culprits, who were "even more attenuated from the
scenario than Brunelle and Johnson[; and that t]he evidence that
other cars were parked at the house also would not likely have
changed the outcome of the trial, for the same reasons." It was
hardly unreasonable for trial counsel to focus on the witnesses
who identified the defendant as the murderer, rather than
17
unidentified individuals or vehicles, in formulating a third-
party culprit defense.
d. Failure to explore an alibi defense. The defendant
argues that trial counsel "abandoned a possible alibi defense by
not investigating the matter." In support of his first motion
for a new trial, the defendant provided an affidavit from the
grandmother of his children, who was prepared to testify that,
on the night of the murder, she was at home watching the nightly
news with the defendant and her daughter. The defendant also
submitted an affidavit asserting the same thing and naming two
persons, "Keith" and "Sue" (no last names provided), who "could
have been located" at the time of trial to testify to his
whereabouts on the night of the murder.8
The decision of defense counsel regarding the best defense
to pursue at trial is a tactical one and will not be deemed
ineffective unless manifestly unreasonable when made.
Commonwealth v. Vao Sok, 435 Mass. 743, 758 (2002). "A strategy
is manifestly unreasonable if 'lawyers of ordinary training and
skill in the criminal law would [not] consider [it] competent.'"
Commonwealth v. Velez, 479 Mass. 506, 512 (2018), quoting
8 In his affidavit, the defendant identifies "Keith" only as
someone "who drove a white van" and "Sue" as someone who "lived
on State Street in Springfield, Massachusetts, next to the Getty
gas station and worked . . . at Springfield Technical Community
College for the dean or registrar."
18
Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478
Mass. 189 (2017).
According to an investigative report submitted with the
defendant's first motion for a new trial, the grandmother told a
police officer that she had not seen the defendant for from one
week to ten days prior to the crime, "as he had moved out and
was no longer staying with her." However, at trial, Brunelle
testified that he picked up the defendant from the grandmother's
home. Given these inconsistencies, it was not unreasonable for
trial counsel to decline to rely on the grandmother's testimony
to establish an alibi defense.9 Nor was it unreasonable for
trial counsel to decline to investigate "Keith" or "Sue" when
the defendant could not provide a last name or other relevant
information about these unknown parties.10
3. Admission of alleged unduly prejudicial evidence. At
trial, the Commonwealth presented the results of preliminary
orthotolidine testing, which indicated the presence of blood in
9 At an evidentiary hearing on the defendant's second motion
for a new trial, trial counsel could not recall much about the
case. He did recall that in preparing for trial, he relied on
the defendant's girlfriend as a witness to establish an alibi.
However, when the time came to call her at trial, the defendant
insisted that she not be called to testify.
10The defendant did not provide any additional information
about "Sue" or "Keith" in his second motion for a new trial; nor
did he provide affidavits from them indicating what they would
have testified to had they been called.
19
the vehicle that the defendant used to leave the crime scene.
Subsequent testing did not show the presence of blood. The
defendant argues that these results were irrelevant and unduly
prejudicial, and that the jury were left with the impression
that there was evidence of blood in the vehicle. The
Commonwealth concedes that there was no overt relevance to the
presence of stains in the vehicle as presented by an expert, but
argues that "the evidence is relevant to show steps taken in the
investigation."
The defendant did not object at trial to the admission of
the preliminary testing. Thus, we review the issue to determine
whether there was an error, and if so, whether it resulted in a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Javier, 481 Mass. 268, 287 (2019).
This court already has held that the results of
orthotolidine testing is permissible without the need for
further confirmatory evidence. Commonwealth v. Duguay, 430
Mass. 397, 401-402 (1999). In Duguay, the court stated that
there was no undue prejudice because the chemist informed the
jury that the test was presumptive, and she "acknowledged a long
list of substances other than human blood that could yield a
positive result." Id. at 402. Additionally, "[d]efense counsel
20
freely and repeatedly pointed out the limitations of the test."
Id.11
Here, trial counsel elicited on cross-examination that the
test was an initial screening test requiring further
confirmation for accuracy; that it could yield false positives,
which can result from metals, vegetable products, or rust; and
that all four wheel wells on the vehicle were rusted. The
expert also confirmed that subsequent testing was negative and
that no further tests were performed. In closing, defense
counsel emphasized the significance of this testimony, arguing,
"And when he takes that swab of what he thinks is the blood,
there may be false positives. As I have already said, it comes
up negative for blood. It wasn't blood. And if it was blood or
if they didn't trust the confirmatory test which came up
Moreover, although subsequent testing revealed that there
11
was no blood present, the preliminary results are still relevant
-- albeit limited, given defense counsel's repeated attempts to
challenge the adequacy of the police investigation. See
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).
"'Evidence does not have to be conclusive of an issue to be
admissible'; admissible evidence may simply make [the]
Commonwealth's contention more probable than it would be without
that evidence." Commonwealth v. Javier, 481 Mass. 268, 288
(2019), quoting Commonwealth v. Pytou Heang, 458 Mass. 827, 851
(2011). The fact and manner in which the preliminary testing
was done provided the jury with information from which they
could have inferred that it was more likely that the criminal
investigation was adequate, despite defense counsel's closing
argument to the contrary. See Commonwealth v. Avila, 454 Mass.
744, 753 (2009) (Commonwealth has right to rebut Bowden
defense).
21
negative for blood, they would have done a third test. But they
didn't." The Commonwealth did not reference the testing done on
the vehicle in its closing.
We conclude that there was no error, but even if there was,
given trial counsel's effective cross-examination and closing
argument,12 the admission of the orthotolidine testing did not
create a substantial likelihood of a miscarriage of justice.
4. Commonwealth's alleged destruction of exculpatory
evidence. The defendant argues that the judge erred in failing
to sanction the Commonwealth for the alleged destruction of two
pieces of exculpatory evidence. The defendant asserts that
Johnson initially made a handwritten statement to police, which
the "police refused to take . . . saying it was not true, and
that the statement should be ripped up." The second piece of
evidence is a statement by Williams, the witness who testified
12We note that defense counsel requested a jury instruction
on the Commonwealth's failure to conduct tests, pursuant to
Bowden, 379 Mass. at 486, which the judge denied. "As we have
stated many times . . . a judge is not required to instruct on
the claimed inadequacy of a police investigation. 'Bowden
simply holds that a judge may not remove the issue from the
jury's consideration.'" Commonwealth v. Williams, 439 Mass.
678, 687 (2003), quoting Commonwealth v. Boateng, 438 Mass. 498,
506-507 (2003). Where, as here, the defendant alleges multiple
investigatory failures, specifically the subsequent testing of
potential blood evidence and the destruction of an exculpatory
statement, see discussion infra, a Bowden instruction may be
warranted. In this case, because the judge explicitly allowed
the defense to "argue to the jury what the police should have
done or failed to do" during closing argument, we find no error.
22
that the defendant confessed to him, which was ripped up by a
detective.
Prior to jury empanelment, defense counsel filed a motion
for sanctions, and the judge held an evidentiary hearing to
determine whether the police had destroyed exculpatory evidence;
she made findings of fact for each statement, as detailed infra.
Defense counsel's motion for sanctions should be read as a
motion to suppress, given that counsel explained he "could have
entitled it a motion to suppress, but [he was] not sure what the
appropriate sanction [was]." In reviewing a ruling on a motion
to suppress, we "accept the judge's subsidiary findings of fact
absent clear error but conduct an independent review of his
ultimate findings and conclusions of law." Commonwealth v.
Hobbs, 482 Mass. 538, 543 (2019), quoting Commonwealth v. White,
475 Mass. 583, 587 (2016).
a. Johnson's statement. The judge found that although
Johnson may have made an oral or verbal statement, he did not
produce a handwritten statement. She also found that the
defendant had not demonstrated that there was any material that
would have been exculpatory to the defendant.
The judge did not commit error in finding that Johnson did
not produce a handwritten statement. Defense counsel did not
call Johnson to testify during the evidentiary hearing.
Although Johnson's mother initially testified that she was
23
unsure whether a handwritten statement was produced, she then
remembered that he did produce one. On cross-examination, his
mother again stated that she was unsure whether Johnson had
produced a handwritten statement. On redirect, she testified
she was "a little confused" about the handwritten statement. In
contrast, the detective who had conducted the interview with
Johnson testified that he never allowed suspects or witnesses to
make handwritten statements, Johnson never provided a
handwritten statement, and no such statement was torn up or
destroyed.
Given the mother's wavering testimony and the detective's
unequivocal assertion that no handwritten statement was made,
the judge's findings were not clearly erroneous.
b. Williams's statement. The judge found that after the
murder, Williams spoke with a detective who began taking his
statement. Williams initially told the detective that he did
not know anything about the murder and that the defendant did
not say anything to Williams about the murder. The detective
printed out Williams's statement and gave it to him. Williams
affirmed the statement but did not sign it. The detective then
indicated that he was privy to additional evidence about the
murder and he knew Williams was lying. Upon hearing this,
Williams stated that he was willing to tell the truth about what
happened, and the detective ripped up Williams's unsigned
24
statement. Although the judge noted that she "frowned upon" the
handling of the statement and found the police "quite culpable"
in its destruction, she ultimately concluded that the
destruction of the statement "was not done intentionally to
deprive the defendant of any evidence." The judge further found
that Williams's initial statement was exculpatory insofar as it
could be used to impeach Williams's testimony at trial, but that
it was not otherwise material to the defendant. In light of
this conclusion, the judge ruled that defense counsel could
explore the circumstances surrounding the destruction of
Williams's initial statements and its purported content,
including by cross-examining Williams and the detective who took
his statement. The defendant argues that this remedy was
inadequate.
"When a defendant makes a claim that the government has
lost or destroyed potentially exculpatory evidence," he bears an
initial burden of demonstrating a "reasonable possibility, based
on concrete evidence" (citation omitted), that the lost or
destroyed evidence was exculpatory in nature. Commonwealth v.
Williams, 455 Mass. 706, 718 (2010). If the defendant makes
such a showing, the judge "must proceed to balance the
Commonwealth's culpability, the materiality of the evidence, and
the prejudice to the defendant in order to determine whether the
defendant is entitled to relief.". Id. "In reviewing the
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denial of a motion based on the Commonwealth's loss [or
destruction] of allegedly exculpatory evidence, we do not
disturb the judge's decision absent a clear abuse of
discretion." Commonwealth v. Kee, 449 Mass. 550, 554 (2007).
Williams's initial statement indicated that the defendant
had not said anything about the murder. In light of Williams's
subsequent statement and testimony at trial, there was a
reasonable possibility that his initial statement was
exculpatory as impeachment material. The defendant has not
shown, however, that the judge's remedy was inadequate, or that
dismissal of the indictment was warranted. "Dismissal of an
indictment is a remedy that infringes 'severely on the public
interest in bringing guilty persons to justice.'" Commonwealth
v. Olszewski, 416 Mass. 707, 717 (1993), cert. denied, 513 U.S.
835 (1994), quoting Commonwealth v. Cinelli, 389 Mass. 197, 210,
cert. denied, 464 U.S. 860 (1983).
Defense counsel engaged in a thorough cross-examination of
Williams about his initial statement and its contents. The
defendant has failed to show that anything contained within
Williams's initial statement would have created a reasonable
doubt as to the defendant's guilt, where defense counsel's
cross-examination of Williams did not. See Commonwealth v.
Kater, 432 Mass. 404, 421 (2000).
26
5. Recusal of judge. The defendant argues that the judge
erroneously failed to recuse herself when she discovered she had
previously served as an attorney for the sister of a key
Commonwealth witness.
Prior to the start of trial, the judge realized that, as a
defense attorney, she had represented Johnson's sister in
approximately 1985. During a sidebar, the judge informed both
parties that she had "some familiarity" with the witness's
family, including Johnson himself and his mother, who testified
for the defense in this trial during an evidentiary hearing on
the motion for sanctions. Regarding how this might affect her
judgment, the judge emphasized that she was just "playing it
safe": "I don't see where this will interfere with my ability
to be an impartial jurist, but I wanted to put it on the
record." Defense counsel was provided an opportunity to consult
with his client, and reported that the defendant "[did] not see
a problem" with the judge's prior representation.
"Because the defendant did not ask the judge to recuse
herself prior to or during trial, we consider this claim to
determine whether there was a substantial likelihood of a
miscarriage of justice." Commonwealth v. Deconinck, 480 Mass.
254, 267 (2018). Here, the judge's decision not to recuse
herself does not meet the standard. The judge represented the
witness's sister in a drug case sixteen years earlier, far
27
removed from the crime at issue. The judge also explicitly
stated on the record that she had considered her relationship
with the witness's sister and did not think it would interfere
with her ability to be impartial. See Commonwealth v. Daye, 435
Mass. 463, 470 (2001) ("Here, the judge properly weighed his
conscience and determined that he could discharge his duties
fairly and without prejudice to the defendant").
6. Cumulative error and relief under G. L. c. 278, § 33E.
As there was no error, there could not be any substantial
likelihood of a miscarriage flowing from allegations of
unpreserved cumulative error. We decline to exercise our
authority under G. L. c. 278, § 33E, to reduce the verdict or to
order a new trial.
Conclusion. For the reasons stated, we affirm the
defendant's conviction. Furthermore, we have reviewed the
record in its entirety and conclude there is no basis on which
to grant extraordinary relief under G. L. c. 278, § 33E. The
denials of the defendant's motions for a new trial are also
affirmed.
So ordered.