Commonwealth v. Brown

787 N.E.2d 588, 57 Mass. App. Ct. 852, 2003 Mass. App. LEXIS 496
Massachusetts Appeals Court·Decided April 25, 2003·No. No. 01-P-1380·Published·Cited by 5 cases

Opinion

Lenk, J.

After trial by jury, the defendant, Alfred Brown, was acquitted of possessing burglarious tools and convicted of larceny under $250, malicious destruction of property under $250, and breaking and entering in the nighttime with the intent to commit a misdemeanor. The trial judge thereafter denied Brown’s motion for new trial, sought on the grounds that the Commonwealth had failed to produce exculpatory evidence and that his trial counsel had provided ineffective assistance. Brown appeals his convictions and the denial of his motion for new trial. We affirm.

The Commonwealth introduced evidence that, on October 16, 1999, at about 9:00 p.m., Boston police Officers Rogers and Ross were on routine patrol, driving down Warren Street in the Roxbury section of Boston. Officer Rogers saw Brown playing with the locks of a parked car, and Officer Ross saw him reaching inside of the car. After passing the car, they turned back to investigate. As they did so, the officers saw Brown inside the car, pulling at something near the dashboard. Brown was walking away from the car as the officers approached, but when he saw that the officers were following him, Brown yelled an expletive and began to flee. Officer Ross chased Brown and, when he apprehended him, found a radio and face plate in Brown’s hands and some controls from the dashboard in his coat pocket. Upon returning to the parked car, the officers saw a smashed passenger side window, a ripped out center console (where the radio would have been), a screwdriver on the ground, and broken glass around the car.

Brown testified to a completely different version of events. He was walking down Warren Street while listening to music through headphones connected to a “walkman” and carrying a second “walkman.” As he was walking, he was struck in the head from behind. After the blow, he was dazed and semiconscious, and the next thing he could remember was being handcuffed with Officer Ross sitting astride his back. He was put in the police cruiser and taken to the station, where Officer Ross slammed his head into a wall several times. Brown testi[854] fled that he possessed none of the items allegedly seized from him by the officers.

Officer Ross testified, on rebuttal, that he did not recall any “walkman” on Brown when he arrested him, and Officer Rogers —who had arrived on the scene after the arrest — testified that he did not recall seeing earphones or anything akin to them on Brown’s head. On surrebuttal, Brown testified that two “walkmans” were returned to him after his arraignment.

Brown maintains on appeal that reversal of his convictions is required because the Commonwealth’s evidence was insufficient to establish that he did not own the vandalized car. He contends also that he is entitled to a new trial because (a) his constitutional rights were violated by the Commonwealth’s failure to provide him with a police inventory report showing that two “walk-mans” had in fact been taken from him after his arrest; and (b) his trial counsel was ineffective insofar as he remedied a deficiency in the Commonwealth’s case regarding ownership of the car, and in having failed to procure and use for impeachment purposes both the inventory report and a transcript of an earlier evidentiary hearing on the defendant’s motion to suppress.

1. Sufficiency of the evidence. The Commonwealth introduced a Registry of Motor Vehicles application form showing that, as of February 18, 1999, the car vandalized on October 16, 1999, was owned by one Sheila McMillan. Notwithstanding Brown’s contention to the contrary, we think that this was sufficient to permit a reasonable inference that the car and the property inside it belonged to someone other than the defendant on October 16, 1999.

2. Failure to provide the police inventory report. Brown contends that the Commonwealth withheld exculpatory and material evidence in violation of his Federal and State constitutional rights. See Commonwealth v. Gallarelli, 399 Mass. 17, 19 (1987), and cases cited; Commonwealth v. Tucceri, 412 Mass. 401 (1992). The undisclosed report, “Boston Police Department Prisoner Disposition Form”1 indicates in the section denoted “Prisoner Personal Data” that Brown had no [855] money but that he did have “belt, wallet, glasses, 2 sets of Walkman.” This, Brown asserts, is exculpatory material insofar as it both corroborates his version of events and discredits the testimony of the police officers.

“To prevail on a claim that the prosecution failed to disclose exculpatory evidence, the defendant must first prove that the evidence was, in fact, exculpatory.” Commonwealth v. Healy, 438 Mass. 672, 679 (2003). However, “ ‘[ejxculpatory’ in this context is not a narrow term connoting ‘alibi or other complete proof of innocence,’ Commonwealth v. Ellison, 376 Mass. 1, 22 n.9 (1978), but rather comprehends all evidence ‘which tends to “negate the guilt of the accused” ... or, stated affirmatively, “supporting the innocence of the defendant.” ’ Commonwealth v. Pisa, 372 Mass. 590, 595, cert. denied, 434 U.S. 869 (1977).” Commonwealth v. St. Germain, 381 Mass. 256, 261 n.6 (1980). The defendant must establish that he was prejudiced by the nondisclosure. Where a defendant has specifically requested the evidence that was not disclosed, “a standard of prejudice more favorable to the defendant is justified,” Commonwealth v. Tucceri, 412 Mass. at 407, and he need only show that a “substantial basis exists for claiming prejudice from the nondisclosure.” Id. at 412. Where a defendant did not specifically request the undisclosed evidence, however, but instead either made no request or only a general request for exculpatory evidence, the defendant, to prevail, must show that there is a “substantial risk that the jury would have reached a different conclusion if the evidence had been admitted.” Id. at 413.

Brown claims that he made a specific request for the inventory report by virtue of (a) an allowed motion for the production of exculpatory evidence, and (b) a pretrial agreement requiring the Commonwealth to produce “police reports, notes, and F.I.O. in the custody or control of the Commonwealth.” “[T]he due process clause does not require prosecutorial clairvoyance. [856] Absent a request sufficiently specific to provide the Commonwealth with notice of the defendant!” ]s interest in a particular piece of evidence, the prosecution may legitimately be held responsible for disclosing only that evidence whose own character reveals its materiality.” Commonwealth v. Wilson, 381 Mass. 90, 109 (1980).

Brown’s allowed motion for the production of exculpatory evidence was not a specific request. There is nothing in the record to suggest that the prosecutor knew before Brown testified at trial that Brown’s defense would implicate his possession of two “walkmans” at the time of the incident. Even if the prosecutor had the inventory report in hand, it was simply not of such character as to reveal its exculpatory potential.

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Commonwealth v. Brown, 787 N.E.2d 588, 57 Mass. App. Ct. 852, 2003 Mass. App. LEXIS 496 (Mass. Ct. App. 2003).

787 N.E.2d 588 (Commonwealth v. Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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