Commonwealth v. Vaughn , 471 Mass. 398 ( 2015 )

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SJC-08400
COMMONWEALTH vs. JEFFREY VAUGHN.
Suffolk. January 9, 2015. - May 12, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ.
Homicide. Practice, Criminal, Affidavit, Disclosure of
evidence, Conduct of prosecutor, Assistance of counsel,
Failure to object, Jury and jurors, Capital case.
Evidence, Exculpatory, Disclosure of evidence, Testimony
before grand jury, Police report, Impeachment of
credibility, Hearsay. Jury and Jurors.
Indictments found and returned in the Superior Court
Department on March 19, 1998.
The cases were tried before James D. McDaniel, Jr., J., and
a supplemental motion for a new trial, filed on December 17,
2009, was heard by Thomas E. Connolly, J.
Eileen D. Agnes for the defendant.
Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.
SPINA, J. In June of 1999, a Superior Court jury convicted
the defendant, Jeffrey Vaughn, of murder in the first degree for
the shooting of Robert Mason in a schoolyard in the Dorchester
2
section of Boston on the night of November 29, 1997.1 The
defendant now brings this direct appeal as well as an appeal of
the denial of his motion for a new trial. Represented by new
counsel on appeal, he claims the judge considering his motion
for a new trial improperly denied it without an evidentiary
hearing, that the Commonwealth failed to disclose exculpatory
evidence timely, that the prosecutor knowingly solicited false
testimony, and that his trial counsel was ineffective. The
defendant also requests that we exercise our power pursuant to
G. L. c. 278, § 33E, to order a new trial or direct the entry of
a verdict of a lesser degree of guilt. We affirm the conviction
and the order denying the defendant's motion for a new trial,
and decline to exercise our power under G. L. c. 278, § 33E.
1. Facts and background. We recite the facts the jury
could have found, reserving further details for discussion of
the specific issues raised. On the morning of November 30,
1997, police responded to a report of a dead body in a
schoolyard in the Dorchester section of Boston. There, they
found the victim, later identified as Robert Mason. The victim
had been shot five times, twice in the head and once in the
chest and each arm, by a .40 caliber firearm. Later that day,
John Hyppolite, the victim's close friend, was arrested pursuant
1
The defendant was also convicted of possession of a
firearm. No argument is made regarding this conviction, and we
do not consider it.
3
to a warrant issued in an unrelated matter. As a result of a
conversation with Hyppolite, the following day, December 1,
1997, police sought a warrant to arrest the defendant, charging
him with the murder of the victim.
The defendant was arrested later that night. During his
arrest, the defendant refused to answer the door of the
apartment where police found him attempting to escape out the
back. On December 30, 1997, while awaiting indictment in
custody, the defendant saw Troy Meade, a friend and the brother
of a woman with whom the defendant had a child, in the holding
area of the booking room in the Suffolk County jail. Meade
engaged the defendant in a conversation about the murder. The
defendant admitted killing the victim because the victim had
once held a brother of the defendant, Walter "Wally" Vaughn,
upside down over a second-story balcony at a party. That
brother had since been murdered. The defendant also stated that
it had been his intention to kill Hyppolite because he had
witnessed the murder but the defendant's other brother, Jamal,
was in the way. The weapon the defendant said he used was a .40
caliber firearm. Meade had seen the defendant with a .40
caliber pistol several weeks before the murder.
The defendant's statement to Meade referenced a series of
escalating events in a conflict between, on one hand, the
defendant and his brothers and, on the other, two brothers by
4
the name of Tim and Eric Mathis. The defendant suspected Tim
Mathis of killing the defendant's brother, Wally Vaughn, while
the defendant was incarcerated.
In addition to the balcony incident with Wally Vaughn, the
defendant further knew that, while the defendant had been in
prison on an unrelated matter, the victim had been the driver in
a drive-by shooting targeting Meade, on April 30, 1997. The
Mathis brothers were passengers in that vehicle as was
Hyppolite. In a telephone conversation made from his place of
incarceration, the defendant promised Meade that he would "take
care" of the perpetrators, including the victim. This
conversation took place while Meade was at the house of Jeff
Pruitt, another friend of the defendant.
The defendant was released from prison in early November,
1997. Shortly after his release, the defendant attended a
party; watched a movie, rewinding and replaying certain portions
of the videotape constantly; and stated that he would seek
revenge on unnamed parties. After his release, he also
reiterated to Hyppolite this desire for revenge, specifically
naming Tim Mathis.
On the night of November 29, 1997, Jamal Vaughn and
Hyppolite met the victim at his house to go socializing. Later
in the evening, they were joined by the defendant. Eventually
the four of them arrived at a nearby schoolyard where it was
5
common to drink alcohol. The usual practice was to loiter on
the stairs to keep watch for police surveillance. On this
night, however, the defendant suggested the group move to the
side of the school. The group moved.
There the conversation between the defendant and the victim
quickly turned to the defendant's deceased brother Wally and
encompassed the occasion on which the victim had held Wally
upside down over a second-story balcony. The defendant grew
emotional during this discussion and displayed a handgun. At
the sight of the weapon, the victim became visibly nervous and
asked the defendant to be careful. Hyppolite intervened and
attempted to defuse the situation. Seemingly mollified, the
defendant put the gun away. Hyppolite turned away from the pair
to relieve himself and heard a gunshot. He turned around in
reaction and saw the victim falling to the ground with the
defendant standing over him with the gun in his hand. He saw
the defendant shoot the victim several more times after he had
fallen to the ground, including twice in the head.
The group fled. Jamal Vaughn ran to a local bar and then
to meet his older brother Dwayne Vaughn at their sister's house.
Hyppolite went in another direction, and the defendant soon
joined him. The defendant warned him not to tell others of the
events of the evening. Hyppolite insisted that the defendant
had taken his retribution against the wrong person. They
6
continued on to Hyppolite's house, where the defendant
persistently asked to use the telephone over Hyppolite's initial
refusal. Fearing the defendant, who still had the gun,
Hyppolite relented. The defendant called his older brother
Dwayne.
Wishing to vacate the area, Hyppolite called for a ride
from a friend. The defendant, meanwhile, stated that more
retribution was to come. Hyppolite's friend arrived to give him
the requested ride. The defendant asked if they could bring him
to his brother Dwayne's house. The driver agreed. As they
drove, the defendant saw two sisters with whom he was familiar:
Sherelle and Jeanine Jackson. Jeanine was a former girl friend
of the defendant.
The defendant requested the driver pull over. The
defendant took Jeanine Jackson out to the back of a house for
several minutes. Sherelle Jackson overheard part of the
conversation between her sister and the defendant in which the
defendant told Sherelle that something would be found in the
schoolyard. After waiting a while, Hyppolite went to retrieve
the defendant at the request of the driver.
The defendant returned to the car, this time with the
Jackson sisters. The group, now five in number, drove to the
residence of the defendant's sister where they met Dwayne
Vaughn. There, the defendant and Jeanine Jackson got out of the
7
car. Hyppolite, the driver, and Sherelle Jackson waited in the
car. Jeanine returned to the car a short while later, soon
followed by the defendant. After one more stop, the driver and
Hyppolite left the defendant and the Jackson sisters at a
residence. Before parting, the defendant repeatedly insisted
that Hyppolite speak to Jamal the next day.
At this location, the defendant and the Jackson sisters
entered an apartment belonging to one of Sherelle's friends.
There, Sherelle was privy to a further conversation between the
defendant and Jeanine in the kitchen. The defendant said he had
"eight more to go." Sherelle's memory of this conversation
consisted of portions she had overheard mixed with details her
sister had later supplied.
The next day, the defendant called Hyppolite. The
defendant warned Hyppolite to speak to "nobody" about the events
of the previous night and, if asked, to say that the group had
actually been at Pruitt's house the night before. Jamal Vaughn
went to Hyppolite's house after this conversation. Hyppolite
confronted Jamal about the killing. Jamal responded only that
the victim had gotten what he deserved. Later that evening,
Boston police officers arrested Hyppolite.
At trial, the defendant relied upon a misidentification
defense. Hyppolite testified that the defendant was the
shooter. After initially stating an unidentified third party
8
was present (contradicting his testimony before the grand jury
in this case), Jamal Vaughn eventually testified that Hyppolite
in fact had pulled the trigger.
The defendant called as a witness Keith Pomare, a friend.
Pomare testified that on the night in question he had approached
the schoolyard looking for friends and saw the victim,
Hyppolite, the defendant, and Jamal there. The group was
"bebopping and rapping" and "messing around with beats." Unseen
by the group, Pomare testified that he heard and saw John
Hyppolite shoot the victim. Still unseen in the aftermath of
the shooting, Pomare testified that he stayed at the scene as
the group fled and then walked over to the body. He then fled
himself. Pomare admitted he had not testified to these facts
before the grand jury and that he had deliberately lied on that
occasion.
The jury returned a verdict of guilty of murder in the
first degree based on a theory of deliberate premeditation with
malice aforethought. Following the trial, the defendant moved
for a new trial based on newly discovered evidence. In support
of this motion, the defendant proffered two virtually identical
affidavits from one Carl Jones, dated September 5, 2000, and
December 9, 2008. The affidavits give no home address nor other
identifying information of the affiant.
9
In these affidavits, Jones swore that, on the night in
question, he saw four black males in the schoolyard from his
residence across the street. From his unknown vantage point, he
saw that three of the males were six or more feet tall and that
one of the males was five feet, four inches tall.2 Jones swore
that he saw one of the taller males shoot one of the other tall
males, matching the description of the victim. The affidavits
go on to state that after the group fled, a previously unnoticed
male walked over to the body, looked upon it, and then fled.
The affidavits conclude that several days later Jones saw
television reports relating to the murder and that the shorter
male, presumably the defendant, was identified as the murderer.
Jones asserts that police had arrested the wrong individual.
The motion judge, who was not the trial judge, rejected
these affidavits as not credible and denied the motion for a new
trial. The defendant appealed claiming several errors. We
address each claim of error in turn.
2. Motion for a new trial. The defendant claims as error
the denial of his motion for a new trial without an evidentiary
hearing. "The trial judge upon motion in writing may grant a
new trial at any time if it appears that justice may not have
been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
2The victim was approximately six feet, two inches tall.
The defendant is approximately five feet, six inches tall.
Hyppolite was more similar in height to the victim than the
defendant. All were black males.
10
1501 (2001). The defendant bears the burden of proving the
facts on which he relies in his motion for a new trial.
Commonwealth v. Brown, 378 Mass. 165, 171 (1979), S.C., 470
Mass. 595 (2015). Where the appeal from the denial of a motion
for a new trial is considered with the direct appeal from the
defendant's conviction of murder in the first degree, we review
the denial of that motion to determine whether an abuse of
discretion or other error of law occurred. Commonwealth v.
Savann Leng, 463 Mass. 779, 781 (2012). If such abuse or error
is found, we look to see if it created a substantial likelihood
of a miscarriage of justice. Id. "Where, as here, the motion
judge was not the trial judge and the motion judge did not make
credibility determinations arising from an evidentiary hearing,
we consider ourselves in as good a position as the motion judge
to review the trial record. . . . Nevertheless, we review a
judge's decision on a defendant's motion for a new trial based
on the common-law claim of newly discovered evidence for a
significant error of law or other abuse of discretion."
(Citations and quotations omitted.) Commonwealth v. Sullivan,
469 Mass. 340, 351 (2014).
The defendant must support his motion for a new trial with
affidavits. Mass. R. Crim. P. 30 (c) (3), as appearing in 435
Mass. 1501 (2001). The primary purpose of Mass. R. Crim. P.
30 (c) (3) is to encourage the disposition of motions for
11
postconviction relief on the basis of affidavits alone. See
Reporter's Notes to Rule 30 (c) (3), Massachusetts Rules of
Court, Rules of Criminal Procedure, at 222-223 (Thomson Reuters
2014). See also Commonwealth v. Stewart, 383 Mass. 253, 260
(1981). The decision to hold an evidentiary hearing on a motion
for a new trial is "left largely to the sound discretion of the
judge." Id. at 257. Only when the motion and affidavits raise
a "substantial issue" is an evidentiary hearing required.
Commonwealth v. Chatman, 466 Mass. 327, 334 (2013).
"In determining whether a 'substantial issue' meriting an
evidentiary hearing . . . has been raised, we look not only at
the seriousness of the issue asserted, but also to the adequacy
of the defendant's showing on the issue raised." Stewart, 383
Mass. at 257-258. "[N]ewly discovered evidence that is
cumulative of evidence admitted at trial tends to carry less
weight than new evidence that is different in kind."
Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986). In
determining the adequacy of the defendant's showing, the motion
judge may consider whether the motion and affidavits contain
credible information of sufficient quality to raise a serious
question. See Commonwealth v. Freeman, 442 Mass. 779, 792 n.14
(2004) (motion judge may assess credibility of defendant's
claims).
12
"When weighing the adequacy of the materials submitted in
support of a motion for a new trial, the judge may take into
account the suspicious failure to provide pertinent information
from an expected and available source." Commonwealth v.
Goodreau, 442 Mass. 341, 354 (2004). Such a failure "speaks
volumes." Id. "A judge is not required to accept as true the
allegations in a defendant's affidavits even if nothing in the
record directly disputes them," Commonwealth v. Rzepphiewski,
431 Mass. 48, 55 (2000), or if the affidavit is uncontroverted.
See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002).
Even where, as here, the motion judge did not preside at the
trial, the credibility, weight, and impact of the affidavits are
entirely within the motion judge's discretion. See Commonwealth
v. Jones, 432 Mass. 623, 634 (2000). In such cases it is
important that the judge provide some reasons for accepting or
rejecting a particular affidavit or group of affidavits, to
assist the appellate court in understanding whether the judge
acted within his or her discretion. Id.The Jones affidavits essentially identify Hyppolite as the
shooter and corroborate Pomare's testimony. The motion judge,
however, did not credit the Jones affidavits. The judge found
that the absence of identifying information, such as Jones's
address and birth date, was troubling given the passage of time
since the trial. The judge similarly gave weight to the fact
13
that, in the ten years since the verdict, Jones never had
contacted the police to give a statement regarding his knowledge
that the police had arrested and prosecuted an innocent man.
The judge also acknowledged the Commonwealth's presentation of a
letter addressed to Jamal Vaughn from the defendant and an
unsigned affidavit accompanying the letter. In the letter, the
defendant strongly asks Jamal to sign the affidavit which the
defendant had prepared in Jamal's name. On these bases, the
judge simply refused to believe anything contained within the
affidavits. On these facts, we cannot say that the judge's
decision not to give weight to the affidavits was the product of
an error of law or an abuse of the judge's discretion.
Similarly, the judge was within his discretion in denying
the motion for a new trial without an evidentiary hearing. The
assertion that a person matching Hyppolite's description was the
shooter and that a fourth person approached the body of the
victim after others present in the schoolyard had fled was
merely cumulative of the evidence offered by the defendant at
trial.
The defendant relies on Commonwealth v. Trung Chi Truong,
34 Mass. App. Ct. 668 (1993), for support. Nothing in that case
leads us to a different conclusion. In Truong, the defendant
was convicted of conspiracy to commit armed robbery after two
men and a woman robbed a jewelry store. Id. at 668-669. The
14
defendant's wife was charged for the robbery as well. Id. at
669. At his trial, the defendant and his wife both testified
that the defendant had picked up his wife and daughter for a
doctor's appointment at the time of the robbery. Id. at 669-
670. The Commonwealth later filed a nolle prosequi in the case
of the wife after the fingerprints at the crime scene were
matched to a different person. Id. at 673. The defendant
relied on this fact in his motion for a new trial, arguing that,
as this new match pointed to a different female robber, his
alibi defense that he was with his wife and daughter at the
doctor's appointment was bolstered. Id. at 674. The
Commonwealth argued that the evidence was cumulative and not
material. Id. at 673. The motion judge denied the motion
without an evidentiary hearing. Id. at 670. The Appeals Court
determined that the motion judge had abused his discretion
because "the prosecution relied upon evidence that the
defendant's wife participated in the robbery as evidence from
which the jury could infer the defendant conspired with her to
commit the robbery and which refuted the defendant's alibi that
he was taking her and their daughter to the doctor." Id. at
674. This reliance, taken in conjunction with the relative
weakness of the remainder of the Commonwealth's evidence, meant
that the Commonwealth's later decision to file a nolle prosequi
15
in the case of the wife raised a substantial issue in the
defendant's case. Id. at 674-675.
In the instant case, the Jones affidavits do not remove an
essential pillar of the Commonwealth's evidence comparable to
the decision to nolle prosse the wife in Truong, which called
into question an important inference upon which the Commonwealth
had relied in seeking a conviction of the defendant. The
affidavit proffered by the defendant only parrots some of the
evidence at trial. Accordingly, we find no abuse of the
discretion of the motion judge in denying the defendant's motion
for a new trial without an evidentiary hearing.
3. Failure to disclose exculpatory evidence. Troy Meade
testified under oath about the April 30, 1997, shooting in which
Meade was the victim in two separate grand jury investigations.3
The first investigation occurred on June 3, 1997, and named John
Doe as the subject. The second occurred on April 22, 1998, and
named Tim Mathis as the subject. On the eve of trial the
prosecutor learned of Meade's testimony about the April 30,
1997, shooting and disclosed it to the defendant pursuant to a
general request for discovery of exculpatory evidence. As we
will explain, some uncertainty exists as to what information
exactly the defendant received, but at a minimum, it was the
3
The grand jury testimony in this case remains impounded.
We refer only to that grand jury testimony cited by the parties
in their briefs before this court.
16
minutes of Meade's grand jury testimony on June 3, 1997. The
defendant now claims that he never received the minutes of
Meade's grand jury testimony from April 22, 1998. The defendant
also argues that the Commonwealth's failure to disclose the
police reports relating to the April 30, 1997, shooting was a
failure to disclose exculpatory evidence. The late disclosure
and failures to disclose, taken together or singly, the
defendant urges, denied him a fair trial.4
The defendant asserts specifically that the alleged failure
to disclose the April 22, 1998, grand jury minutes cast Meade's
disclosed testimony before the grand jury on June 3, 1997, in a
misleading light and thus deprived him of an opportunity to
demonstrate Meade's bias and motivation to lie. The police
reports, the defendant continues, demonstrate Hyppolite's motive
to commit the murder. We address each in turn.
a. Grand jury minutes. The Commonwealth asserts that the
defendant received the April 22, 1998, grand jury minutes at the
same time he received the June 3, 1997, grand jury minutes. At
trial, the judge addressed the handling of both the grand jury
investigation for this case as well as those "that relate to
4
The defendant now argues that these nondisclosures were
intentional but offers no evidence in support of this argument.
Trial counsel never alluded to any such suspicion. We discern
no basis in the record to support the contention that the
Commonwealth intentionally withheld evidence. We therefore
analyze this issue under the assumption that the Commonwealth
acted in good faith.
17
Troy Meade" and ordered both marked for identification. The
exhibit list shows two entries for identification of grand jury
minutes but does not describe them further. We conclude that it
is safe to say that one entry accounts for the minutes of the
grand jury investigating the defendant and the other for Meade's
testimony in the grand jury investigations in which Meade was
the alleged victim. The question we must resolve is whether the
second entry includes Meade's testimony of April 22, 1998.
The Commonwealth attempts to resolve this uncertainty by
pointing to questions asked by defense counsel containing
information contained in the April 22, 1998, grand jury
transcript but not the June 3, 1998, grand jury transcript.
Specifically the Commonwealth highlights a question by defense
counsel to Meade referencing the fact that Meade had identified
the victim to the police as one of four individuals in the car
on April 30, 1997.5 Although the fact that four people were in
the car on that date had come out during the trial already, no
mention had been made at any point of the fact that it was Meade
who had told police four people were in the car and identified
them. The police reports, supplied in the record, demonstrate
that Meade did make such an identification to the police, but
5
Q.: "You knew of [the victim] enough that you could
identify him to the police as one of the four people
in that vehicle where someone was trying to kill you,
is that so? You have to say yes or no."
A.: "Yes, sir."
18
the defendant already had stated he never received them. Thus
the only basis for the statement Meade had identified four
people came from the April 22, 1998, grand jury minutes,
contradicting the defendant's claim that his counsel never
received them.
Even if we were to err on the side of caution and assume
without deciding that the prosecution did not deliver the
April 22, 1998, minutes to the defendant and that those minutes
were exculpatory, the defendant fares no better. "Where the
prosecution denies the defendant exculpatory evidence but the
defendant . . . has made only a general request, this court will
order a new trial or reduction of the verdict whenever the court
concludes that there is a substantial likelihood of a
miscarriage of justice." Commonwealth v. Simmons, 417 Mass. 60,
73 (1994). We easily conclude that when the Commonwealth fails
to provide grand jury testimony by a nonpercipient witness on an
unrelated incident that the defendant would use only to impeach
that witness and the defendant has already successfully called
into question the witness's truthfulness, no substantial
likelihood of a miscarriage of justice exists. The issue at
trial here was the identity of the person who shot Robert Mason.
Meade did not witness that shooting. His bias and prior
contradictory testimony already had been considered by the jury
in weighing his testimony as to the defendant's jailhouse
19
confession and likely would not have affected the trial's
outcome.
b. Police reports. For substantially the same reasons, we
find no error in the nondisclosure of the police reports of the
April 30, 1997, shooting. The defendant argues that it is only
in these reports that Hyppolite's motive to murder the victim
emerges. The police reports in question do not mention
Hyppolite. The defendant sees this lack of mention as support
for his defense that Hyppolite was motivated to kill the victim
to extinguish any evidence of his involvement in the shooting.
The defendant's reading of the reports is not reasonable.
The police reports regarding the April 30, 1997, shooting
of Meade simply describe police efforts to ascertain the
identity of the perpetrators of that crime. The reports do not
mention Hyppolite as a suspect. From this fact, the defendant
asserts that Hyppolite killed his friend more than six months
later in an effort to remain unsuspected. The defendant's
theory is speculative, convoluted, and confusing. We cannot
interpret the failure of the police reports to mention Hyppolite
as evidence that an affirmative desire to remain unsuspected
prompted Hyppolite to kill Mason. Their nondisclosure was not
error. But again, even were we to assume without deciding that
the reports may be exculpatory, we would still conclude that
their nondisclosure after a general request did not result in a
20
substantial likelihood of a miscarriage of justice because they
do not address the issue of the identity of Robert Mason's
killer. See Simmons, 417 Mass. at 73.
4. Prosecutorial misconduct. The defendant claims that
the prosecutor knowingly elicited false testimony from Meade and
failed to correct it, in violation of Napue v. Illinois, 360
U.S. 264 (1959). At issue is the prosecutor's attempt to
establish the nature of any promises made by the district
attorney's office in connection with Meade's testimony at trial.
During the course of that effort, the prosecutor elicited from
Meade that the first time he and Meade had contact in this case
was when Meade was called to testify in front of the grand jury.6
The defendant cries foul.
According to the defendant, the first time Meade was
brought before a grand jury in this case was January 30, 1998.
6
Q.: "It's fair to say, sir, that when you came to the
Suffolk County Grand Jury to testify in this case you
did not even know that you were being brought in to
testify?"
A.: "Exactly."
Q.: "Did you call the Suffolk County D.A.'s office to say
that you had information?"
A.: "No, I didn't."
Q.: "Is it fair to say the first time you came into
contact with the Suffolk County District Attorney's
office was when they brought you into court?"
A.: "Yes, sir."
21
Visitors' logs from the jail obtained by the defendant show the
prosecutor visiting Meade on January 15, 1998, fifteen days
prior. Therefore, the defendant concludes, the prosecutor
knowingly elicited false testimony and failed to correct the
record.
This argument is part of the effort to project Meade's
testimony as the product of collusion between Meade and the
prosecutor. The defendant, however, is mistaken in his factual
understanding that the first time Meade met with the prosecutor
was on January 30, 1998, when Meade testified before the grand
jury. The docket shows an oral motion for a writ of habeas
corpus by the prosecutor on December 29, 1997, for a witness to
appear the next day. The Commonwealth has produced that writ
commanding that the sheriff of Suffolk County produce Meade on
December 30, 1997, to Suffolk Superior Court. The prosecutor
first met with Meade on December 30, 1997, when he was brought
to "court," as he had testified.
Similarly, the defendant claims he was denied a fair trial
when Meade testified at trial that he could not identify the
shooter in the April 30, 1997, incident, which was inconsistent
with his April 22, 1998, grand jury testimony. The defendant
argues that the prosecutor had access to the April 22, 1998,
grand jury minutes, failed to correct this point, and that
failure amounted to prosecutorial misconduct. "That a
22
prosecution witness contradicted [himself] is insufficient to
show that the Commonwealth knowingly used perjured testimony."
Commonwealth v. Zuluaga, 43 Mass. App. Ct. 629, 646 (1997). The
defendant has failed to establish prosecutorial misconduct.
5. Ineffective assistance of counsel. The defendant makes
multiple claims that he received ineffective assistance of
counsel. To succeed on these claims, the defendant must
demonstrate that (1) that there was "serious incompetency,
inefficiency, or inattention of counsel -- behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer," and (2) that this substandard
performance "likely deprived the defendant of an otherwise
available, substantial ground of defence." Commonwealth v.
Britto, 433 Mass. 596, 601 (2001), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). Because this is a review
under G. L. c. 278, § 33E, our degree of scrutiny is heightened,
and we search for any unpreserved error that might have created
a substantial likelihood of a miscarriage of justice. Britto,
supra at 601-602, citing Commonwealth v. Wright, 411 Mass. 678,
682 (1992). We turn to the defendant's claims.
a. Access to grand jury minutes. At trial, the defendant
was restricted personally from viewing the grand jury minutes
relating to the April 30, 1997, drive-by shooting. The
defendant now argues that his counsel gave ineffective
23
assistance in failing to object to this restriction. The
defendant asserts he would have had greater knowledge than his
attorney relative to the context of the testimony presented.
This restriction, he argues, deprived him of the opportunity to
present a full defense.
Even accepting the defendant's proposition as true that he
had greater knowledge than his attorney of the facts of an
unrelated shooting that occurred while the defendant was
incarcerated, counsel was not ineffective in failing to object
to the protective order because such an objection would have
been futile. Rule 14 (a) (6) specifically allows discovery to
be restricted to defense counsel alone for cause shown. Mass.
R. Crim. P. 14 (a) (6), as appearing in 442 Mass. 1518 (2004).
The decision to enter such an order is within the trial judge's
discretion. Commonwealth v. Holliday, 450 Mass. 794, 803, cert.
denied, 555 U.S. 947 (2008). Here, the judge was well within
his discretion in granting the restricting order given the
defendant's expressed threats against witnesses. Defense
counsel's failure to make a clearly futile objection to the
protective order was not behavior falling measurably below that
of an ordinary fallible lawyer.
b. Sleeping juror. The defendant argues that he received
ineffective assistance of counsel when his attorney failed to
pursue the possibility of a sleeping juror. The defendant
24
alleges that his counsel should have submitted affidavits to
bolster his claim that a juror was inattentive during the
presentation of the evidence. Defense counsel twice brought to
the judge's attention the issue of a juror appearing to be
asleep during trial.7 The defendant urges that his right to an
impartial attentive juror was compromised when the judge and
defense counsel took no further action.
The defendant has failed to meet his burden. Although it
is true that a judge must take action when confronted with
evidence of a sleeping juror, the nature of that action is
within the judge's discretion. Commonwealth v. Beneche, 458
Mass. 61, 78 (2010). The defendant must show that the judge
abused his discretion by making an arbitrary or unreasonable
decision. Id. Here, the defendant has not made such a showing.
Defense counsel first reported during a bench conference
that he had observed a juror sleeping, including sleeping during
the judge's instructions. He also offered that the prosecutor
had seen it as well. Nothing in the record indicates the
prosecutor's observations of the juror or his agreement or
disagreement with defense counsel's observations. Defense
counsel offered no further description of why he thought the
7
The second time defense counsel also requested that a
second juror be removed from the panel because defense counsel
had observed the second juror for ten minutes during the lunch
break the previous day "standing [in public], staring off into
space with his hands folded, talking to himself on the street
corner."
25
juror was sleeping beyond the excuse that he had not brought up
the issue earlier in light of the possibility he may have
observed a "nervous reaction." Defense counsel did not request
any further action at the time of the initial report. In
response to defense counsel's reports, the judge made his own
observations of the juror. The judge did not observe the juror
sleeping. He promised to continue his observations and to act
should defense counsel's concerns prove founded. The next day,
defense counsel revisited the issue, offering no further
description of the asserted fact that the juror was sleeping and
offering no new evidence that the juror had fallen asleep since
the initial report. He asked that the juror be removed. The
judge declined to do so. In his affidavit in support of the
defendant's motion for a new trial, defense counsel did not
elaborate any further on his report at trial.
It is clear that the trial judge did not find defense
counsel's assertions reliable enough to warrant further action,
particularly where counsel said that the juror slept during the
judge's instructions to the jury and the judge would necessarily
have been looking at the jury. Yet the judge noticed nothing
unusual. Contrast Commonwealth v. McGhee, 470 Mass. 638, 645
(2015) (report from adjacent juror of snoring enough to prompt
further action). Defense counsel's report gave no description
of the characteristics of the juror's alleged slumber beyond
26
likening it to a "nervous reaction," an empty illustration
explained by myriad possibilities. More importantly, defense
counsel did not ask for a voir dire. In fact, he initially
requested the judge do nothing at that time. The judge was
entitled to rely on his own observations to reach the conclusion
that the report of a sleeping juror was not sufficiently
reliable to warrant further action when made only by defense
counsel without a request for a voir dire. McGhee, supra at 645
(trial judge should first assess reliability of report before
taking further action). We defer to the findings of the trial
judge on a claim alleging a sleeping juror. Commonwealth v.
Morales, 453 Mass. 40, 47 (2009). The trial judge did not abuse
his discretion in his response to defense counsel's claim that
the juror was sleeping.
Nor would the submission of affidavits by trial counsel
have affected this outcome. Counsel twice brought the issue
before the trial judge. The second time the judge assured
defense counsel that he was monitoring the juror. We cannot
accept as true that a juror was in fact sleeping and therefore
cannot speculate upon any possible effect of further affidavits
not proffered in this regard. Simply put, without more,
counsel's failure to submit affidavits at that juncture was not
behavior falling measurably below that which might be expected
from an ordinary fallible lawyer.
27
c. Failure to call or examine witnesses. The defendant
claims that his trial counsel was ineffective with respect to
several decisions regarding witnesses. "Trial tactics which may
appear questionable from the vantage point of hindsight . . . do
not amount to ineffective assistance unless 'manifestly
unreasonable' when undertaken." Commonwealth v. Haley, 413
Mass. 770, 777-778 (1992), citing Commonwealth v. Sielicki, 391
Mass. 377, 379 (1984). Failure to call a witness will not be
considered ineffective assistance of counsel absent a showing of
prejudice. Commonwealth v. White, 409 Mass. 266, 275 (1991).
We address the defendant's arguments.
i. Jeanine Jackson. The defendant argues that he received
ineffective assistance of counsel when defense counsel failed to
call Jeanine Jackson to impeach the testimony of Sherelle
Jackson, her sister. The defendant contends that Jeanine would
have testified that the defendant had never told her he had shot
the victim, contradicting Sherelle Jackson's testimony. The
Commonwealth answers that defense counsel had already impeached
Sherelle Jackson by other means including noting her outstanding
warrants and criminal charges and inconsistencies between her
trial and grand jury testimony. Furthermore, in her own
testimony, Sherelle freely admitted that her memory was affected
by hearsay reported to her the same day. In any event, the only
effect of calling Jeanine Jackson would have been for the
28
further impeachment of Sherelle. This failure to provide
cumulative impeachment testimony was not ineffective assistance
of counsel. See Commonwealth v. Duran, 435 Mass. 97, 105
(2001); Commonwealth v. Fisher, 433 Mass. 340, 357 (2001).
ii. Troy Meade. The defendant argues that defense counsel
was ineffective by reason of his failure to object to Meade's
testimony on the basis of hearsay or lack of foundation
regarding the July, 1997, telephone call in which the defendant
told Meade the defendant would take care of the persons who
committed the April 30, 1997, drive-by shooting. The
defendant's argument is without merit. It is uncontroverted
that statements of the defendant in a criminal case are not
hearsay. Commonwealth v. Marshall, 434 Mass. 358, 365-366
(2001). Similarly, there is no merit to the defendant's
argument that defense counsel should have objected to Meade's
testimony for lack of foundation. The evidence was substantial
that Meade and the defendant had been familiar with each other
for years. In fact, Meade's sister and the defendant had a
child together. "Identification of telephone voices by
witnesses familiar with the voice of the identified person has
long been permitted by the law of the Commonwealth."
Commonwealth v. Perez, 411 Mass. 249, 262 (1991) (citations
omitted). Any objections on these bases would have been futile.
Defense counsel was not ineffective in this regard.
29
iii. Jeffrey Pruitt. Defense counsel vigorously cross-
examined Meade about the details of the July, 1997, telephone
call in order to cast doubt on the veracity of Meade's
testimony. The defendant now alleges that his counsel's failure
to examine Jeffrey Pruitt on the issue for the same purpose
constitutes ineffective assistance. We disagree. The defendant
points to an affidavit submitted after the trial to indicate
that, had Pruitt been examined on this issue, he would have
denied Meade's presence in his house during the telephone call
in question. Defense counsel had focused his direct examination
of Pruitt on the events surrounding the murder and an incident
in which Pruitt claimed Meade told him he had lied about the
defendant's jailhouse confession. The Commonwealth offered
evidence of the July, 1997, telephone call to demonstrate
motive, an element the Commonwealth was not under an obligation
to prove. The central issue in the case was the resolution of
the identity of the shooter in the schoolyard on the night of
November 29, 1997. Even were we to take Pruitt's affidavit at
face value, the failure to offer evidence casting further doubt
on the already-impeached testimony of a witness who did not
observe the shooting and thus could not identify the shooter was
not behavior falling measurably below that of an ordinary
fallible lawyer nor did it deprive the defendant of a
substantial ground of defense.
30
iv. Marcel Morale. The defendant argues that he received
ineffective assistance of counsel when his attorney failed to
investigate, interview, and present as a witness Marcel Morale,
a person interviewed by the police after the shooting who
resided within sight of the school. In the police interview,
Morale indicated she saw four men run from the schoolyard after
the shooting. The defendant claims that this testimony
corroborates that of Keith Pomare by placing four people at the
scene and making it more likely that Hyppolite was the shooter.
Morale's general observations of four people running away cannot
be considered exculpatory evidence. Morale told police that one
male ran through a hole in a fence and then joined the three
other males in fleeing the scene. Even were we to take Morale's
police interview as true that there were four people present in
the school yard after the shooting on November 29, 1997, her
report would still not corroborate Keith Pomare's testimony.
Pomare stated under oath that he stayed hidden until the others
had fled and walked around the body. Pomare testified that he
then fled to his grandmother's house and did not meet up with
the group that had just fled the school yard. Pomare's
testimony and Morale's police report are not consistent with one
another and thus the police report cannot be said to corroborate
Pomare's testimony. Defense counsel's failure to call Morale
did not prejudice the defendant's case by depriving him of a
31
substantial ground of defense. Defense counsel was not
ineffective in this regard.
6. G. L. c. 278, § 33E, review. The defendant requests
that we reduce his conviction of murder or order a new trial
under G. L. c. 278, § 33E, in the interests of justice after a
consideration of the evidence. We have reviewed the entire
record and conclude that there is no reason to exercise our
power under G. L. c. 278, § 33E.
Judgment affirmed.
Order denying motion for a
new trial affirmed.