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SJC-08733
COMMONWEALTH vs. SHANE MOFFAT.
Hampden. May 8, 2020. - November 12, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.1
Homicide. Evidence, Exculpatory, Opinion. Practice, Criminal, Discovery, Argument by prosecutor, Instructions to jury, Assistance of counsel, Capital case.
Indictment found and returned in the Superior Court Department on February 17, 2000.
The case was tried before Tina S. Page, J.; motions for postconviction discovery and for a new trial were considered by her; and following review by this court, 478 Mass. 292 (2017), a second motion for postconviction discovery was considered by David Ricciardone, J., and a motion for reconsideration was considered by Page, J.
Merritt Schnipper for the defendant. Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth.
1 Chief Justice Gants participated in the deliberation on this case prior to his death. 2
LOWY, J. In October 2001, a jury convicted the defendant,
Shane Moffat, of murder in the first degree for the shooting
death of Malcolm Howard.2 The defendant seeks reversal of his
conviction, arguing that (1) the Commonwealth violated the
defendant's due process rights by failing to investigate
evidence that contradicted its trial theory and by presenting a
trial theory that it knew or had reason to know was false;
(2) two lay witnesses improperly testified as to the defendant's
guilt without personal knowledge, violating the defendant's due
process rights; (3) during closing argument, the prosecutor
improperly urged the jury to draw an inference of guilt against
the defendant due to his court room behavior; (4) the trial
judge erred by providing incomplete jury instructions regarding
circumstantial evidence; (5) trial counsel provided ineffective
assistance for various reasons, including by failing to
investigate third-party culprit evidence; and (6) the motion
judges erred in denying the defendant's motions for
postconviction discovery. The defendant also requests that we
exercise our power pursuant to G. L. c. 278, § 33E, to grant him
a new trial. Finding neither reversible error nor reason to
exercise our authority under § 33E, we affirm.
2 The judge sentenced the defendant to life in prison. 3
Background. "We recite the evidence in the light most
favorable to the Commonwealth, reserving certain details for
later discussion." Commonwealth v. Tavares, 484 Mass. 650, 651
(2020).
1. The murder and aftermath. During a meeting on May 10,
1999, the defendant offered to procure cocaine for the victim
and the victim's cousin, George Marshall. Three days later, the
victim's girlfriend gave the victim $1,300 to purchase drugs
from the defendant. Later that day, at around 11 A.M., Marshall
drove the victim to meet the defendant in Marshall's fiancée's
car, which was a Toyota. The defendant told Marshall that the
defendant and the victim had to meet the cocaine distributor
elsewhere, and that Marshall could not come. Marshall let the
victim borrow the Toyota, and the victim agreed that he would
return in time for Marshall to be able to pick up his daughter
later that afternoon. The victim drove away with the defendant
at around 1:30 P.M.
The victim first drove the defendant to the defendant's
mother's house, where the defendant retrieved his mail. The
victim then drove the defendant to Fred Jackson Road in
Southwick, and shortly thereafter, the victim was shot with a
shotgun. At 3:11 P.M., the defendant used the victim's cell
phone to place a call. The cell phone signal from that call 4
corresponded with a cell tower within three to five miles of
Fred Jackson Road.
After the victim did not return with the Toyota by the
promised time, Marshall attempted to contact both the victim and
the defendant. The defendant told Marshall that the defendant
had not seen or heard from the victim since earlier that day
when the victim had dropped off the defendant. Later that
night, Marshall and the victim's girlfriend confronted the
defendant about the victim's whereabouts, and the defendant
again denied any knowledge.
That same evening, the defendant and his friend, Jarod
Thompson, took a taxicab to various locations, including one
location where the defendant and Thompson disposed of a shotgun
barrel in a storm drain. During the ride, the defendant showed
Thompson a shirt with blood on it. The defendant also left a
bag in the taxicab, which contained the boots the defendant was
wearing during the murder.
2. The investigation. On May 16, 1999, a man discovered
the victim's body lying on the side of an embankment on Fred
Jackson Road.3 An autopsy later revealed that the victim's cause
of death was a close range shotgun wound to his neck. On May
18, 1999, the Toyota was discovered outside an abandoned
3 The victim was still wearing his jewelry, but there was no wallet or identification on him. 5
factory, and the driver's seat was soaked with blood. Officers
recovered the victim's baseball cap from the brush next to the
Toyota and the defendant's mail, which bore his mother's
address, from the front passenger seat.
The police later recovered from the storm drain the shotgun
barrel, which was consistent with the type of shotgun used to
murder the victim. The police also recovered from the taxicab a
bag containing the defendant's boots and later determined that
the victim's deoxyribonucleic acid was on the defendant's right
boot.
3. Arrest and police interviews. On May 21, 1999, a
warrant issued for the defendant's arrest. Shortly thereafter,
the police went to Thompson's house looking for the defendant,
but they did not find him there.4 The defendant fled to New
York, and then to Florida, where police there arrested him
several months later on an unrelated charge.5 Over the course of
several interviews with the defendant, both in Florida and in
4 At trial, the defendant testified that he knew the police were there, but that he had hidden on the third floor until the police left.
5 Upon arrest, the defendant identified himself under an alias, Frank Matta, with an address in Seattle, Washington. 6
Massachusetts, the defendant provided the Massachusetts police
officers with three different versions of the murder.6
First, the defendant claimed that when he could not reach
the cocaine distributor, a man named "Ayah," the victim dropped
off the defendant, and the defendant did not see the victim
again. Three days after the murder, a girl approached the
defendant and handed him a bag containing three shotguns. The
defendant gave two away, and because the third smelled like it
had just been fired, he dismantled it and disposed of it in the
storm drain.
The detectives then informed the defendant that the police
had recovered the shotgun barrel and the defendant's boots from
the taxicab, and that the police knew the defendant had used the
victim's cell phone. The defendant then asked the detectives,
"Why would I murder somebody for just thirteen hundred
dollars[?]"
In his second version of events, the defendant claimed that
he had brought the victim to meet Ayah and someone named
Quentin. Upon their arrival, Ayah and Quentin entered the
backseat of the Toyota, while the defendant sat in the front
passenger's seat, and the victim sat in the driver's seat. As
6 The defendant told the police the first two versions in Florida. The defendant told the police the third version in Massachusetts. 7
the four men talked, the defendant heard a loud bang and saw the
victim slump over the steering wheel. The defendant then helped
remove the victim's body from the car and placed it in the trunk
of Ayah and Quentin's car. The defendant drove the blood-soaked
Toyota to Hartford. He accused Ayah and Quentin of framing him,
claiming that Ayah and Quentin both wore surgical gloves, while
he did not, and that he had let Ayah borrow his boots.
Following the defendant's second version, the detectives
gave the defendant a copy of Thompson's statement and
photographs of the shotgun and the taxicab. The detectives
reviewed the evidence against the defendant, and the defendant
acknowledged that the police had enough evidence to convict.
The interview was then interrupted, and when it resumed a couple
months later, the defendant offered a third version of events.7
In this third version, the defendant, Marshall, and the
victim met Ayah and Quentin at a convenience store. The
defendant and the victim then followed Ayah and Quentin in the
Toyota to a gasoline station and then to Fred Jackson Road,
stopping in between to retrieve the defendant's mail from his
mother's house. Once there, Ayah and Quentin got out of their
car, and Quentin shot the victim while standing behind the
7 The detectives did not speak to the defendant again until January 2000, when they picked him at the airport in Miami to transport him back to Massachusetts. 8
driver's side window. Ayah and Quentin then removed the
victim's body from the Toyota and dropped him down the
embankment. After, Ayah drove the defendant away from the scene
in Ayah's car, and Quentin drove the Toyota to Hartford.
As to motive, the defendant offered that the victim was
killed because Marshall and the victim had robbed someone in New
York City during a drug deal. The defendant admitted that he
owned the murder weapon, that he had disposed of it, and that
his fingerprints were on it. The defendant then agreed to take
police to the murder location. Once at the murder site on Fred
Jackson Road, the defendant admitted that he, not Ayah, had been
wearing his boots during the murder, but he could not explain
how the victim's blood had ended up on them.
4. The trial. During his trial testimony, the defendant
acknowledged that he was present during the murder, but he
claimed that he did not shoot the victim and that he did not
know that Ayah and Quentin had planned to do so. The defendant
largely reiterated his third version of events, but he denied
that the murder weapon belonged to him. On October 11, 2001,
the jury convicted the defendant of murder in the first degree
on the theories of felony-murder and deliberate premeditation.
The defendant was sentenced and filed a notice of appeal the
following day. Over the subsequent seventeen years, the 9
defendant filed multiple postconviction motions.8 We
consolidated the defendant's direct appeal from his conviction
of murder in the first degree with his appeals from the denials
of some of those motions.
Discussion. 1. Commonwealth's improper trial theory. One
week prior to trial, the Commonwealth received a heavily
redacted Federal Bureau of Investigation (FBI) report from the
United States Attorney's office, which contained a portion of an
FBI interview of someone named Desmond Wolfe from December 9,
1999. The FBI report, which the defendant possessed prior to
trial, stated:
"With regards to a murder that occurred in Springfield, Screw told Wolfe that he (Screw) and [the defendant] on the day of the murder, 'licked a man down and now he died.' Screw . . . fled to Florida with [the defendant] and telephoned Wolfe from Florida a few times. . . . Screw told Wolfe that the murder victim owed [the defendant] money and that he (Screw) witnessed [the defendant] commit the murder."9
8 We docketed the defendant's direct appeal in 2002 and, over the subsequent sixteen years, we allowed multiple of the defendant's motions to stay his direct appeal pending various other motions in the trial court.
In 2013, the defendant filed a motion for postconviction testing for four cigarette butts pursuant to G. L. c. 278A, which the trial judge denied. The defendant appealed. We allowed the defendant's motion to stay his direct appeal, as well as his motion to proceed with that appeal, and ultimately, we affirmed the judge's denial on November 6, 2017. See Commonwealth v. Moffat, 478 Mass. 292 (2017).
9 "Screw" refers to the defendant's sister's partner, Everol Bartlett. Wolfe was also known as Horace Richards. In 10
The Commonwealth's theory at trial was that the defendant
acted alone. Conversely, the defendant's theory was that the
defendant was present, but that Ayah and Quentin jointly
murdered the victim without informing the defendant of their
intent to do so. The defendant did not mention Screw at trial,
or in any of the three versions of events he told the police.
On appeal, however, the defendant argues that the
Commonwealth improperly failed to investigate the allegations
contained in the FBI report that the defendant was not alone at
the time of the murder, and the Commonwealth knew or should have
known that its theory that the defendant acted alone was false
or misleading. The defendant contends that those errors
violated his due process rights and entitle him to a new trial.
a. Failure to investigate. The Commonwealth had no
obligation to investigate the FBI report. "While the
prosecution remains obligated to disclose all exculpatory
evidence in its possession, it is under no duty to gather
evidence" or to conduct further investigation "that may be
potentially helpful to the defense." Commonwealth v. Wright,
479 Mass. 124, 140 (2018), quoting Commonwealth v. Lapage, 435
addition, according to the defendant's brother's statement to police, the defendant told his brother about Screw's involvement in the murder in June 1999, which was several months before the defendant first spoke to the police and before the FBI interviewed Wolfe. 11
Mass. 480, 488 (2001). As quoted above, the FBI report
references that Screw told Wolfe that the defendant shot the
victim, and that Screw witnessed the murder. Nonetheless,
assuming, without deciding, that the FBI report constitutes
exculpatory evidence, the prosecutor satisfied his legal duty by
providing the report to the defense prior to trial.
b. False or misleading theory. "There is no doubt that
the defendant would be entitled to relief if the prosecution
'deliberately presented a false picture of the facts, either by
knowingly using perjured testimony, failing to correct testimony
when it became apparent that it was false, or actively
suppressing evidence known to be exculpatory'" (citation
omitted). Commonwealth v. Earl, 362 Mass. 11, 15 n.4 (1972).
Here, however, the Commonwealth did not present or fail to
correct any false testimony.
So long as the prosecutor abides by his or her duty to
provide the defendant with any material, exculpatory information
within the Commonwealth's possession or control, see
Commonwealth v. Ayala, 481 Mass. 46, 56 (2018), nothing requires
the prosecutor to present that evidence to the jury. Contrary
to the defendant's assertion, omitting evidence that helps the
defendant and that counters the prosecutor's theory of the case
does not equate to presenting or failing to correct false
testimony. See Commonwealth v. Jewett, 442 Mass. 356, 363 12
(2004) ("It was not the prosecutor's duty to try the defendant's
case for him by attempting to impeach the testimony of the
Commonwealth's own witnesses with cryptic and inconclusive
documents in the defense counsel's possession"). The prosecutor
satisfied his legal obligation.
2. Lay witness testimony. During trial, the Commonwealth
called Marshall and Marshall's fiancée, Nicole Wilson, to
testify as to their encounters with the victim and defendant at
around the time of the murder. The defendant argues that
several statements made by these witnesses lacked personal
knowledge and improperly commented on the defendant's guilt;
thus, the testimony prejudicially encroached on the jury's fact-
finding duty and violated the defendant's due process rights.
a. Personal knowledge. During trial, both Marshall and
Wilson testified that the defendant was the last person with the
victim. Marshall first testified that on the day the victim
went missing, he had repeatedly called and paged the defendant
because the defendant "was the last one with my cousin."
Marshall also testified that he brought the defendant over to
speak to the victim's girlfriend, telling her "this is the last
guy that was with [the victim]." Later, Wilson testified that
she "knew [the defendant] was the last person with [the
victim]." Specifically, the defendant argues that through these 13
statements, the witnesses testified, without personal knowledge,
that the defendant was the last person to see the victim alive.
Lay witnesses may only testify regarding matters within
their personal knowledge. See Commonwealth v. Irene, 462 Mass.
600, 606, cert. denied, 568 U.S. 968 (2012); Mass. G. Evid.
§ 602 (2020). Viewed in the context of Marshall's entire
testimony, however, Marshall's first statement was part of his
explanation as to why he repeatedly called the defendant after
the victim did not return the Toyota –- because the defendant
was the last person Marshall saw with the defendant. Marshall's
second contested statement and Wilson's contested statement were
part of their respective explanations as to why Marshall asked
the defendant to speak to the victim's girlfriend –- because
they sought any additional information about the victim's
whereabouts. Moreover, at the time Marshall tried to contact
the defendant, and at the time both Marshall and Wilson
ultimately spoke with the defendant, neither Marshall nor Wilson
knew the victim had been killed, as the police had not yet
discovered his body. It was therefore clear to the jury that
Marshall and Wilson did not have personal knowledge of the
events that gave rise to the victim's death. There was no
reversible error.
b. Culpability. Marshall also testified that he had
previously referred to the defendant as the "guy . . . who 14
killed my cousin."10 This evidence was inadmissible. See
Commonwealth v. Perez, 460 Mass. 683, 694 (2011) (error to
permit witness to opine as to defendant's culpability). See
also Mass. G. Evid. § 704 (2020). However, there was no
substantial likelihood of a miscarriage of justice. It would
have been obvious to the jury, as well as to all counsel and the
judge, that the witness had no personal knowledge as to who shot
the victim. The testimony, however, occurred during defense
counsel's cross-examination, and defense counsel neither moved
to strike the answer nor moved to request a curative
instruction. Considering that the witness's nonresponsive
answer demonstrated the witness's bias against the defendant,
there were strategic reasons for allowing the answer to remain.
We conclude that this inadmissible evidence did not create a
substantial likelihood of a miscarriage of justice.11
10Marshall said this in response to defense counsel's question regarding the content of Marshall's adopted statement made to police. Specifically, defense counsel asked Marshall to explain what Marshall meant when he told the police that the victim told him "the scoop" about why the victim and the defendant were going to meet the cocaine dealer alone.
11As stated, the judge would have recognized that neither Marshall nor Wilson had personal knowledge as to who shot the victim. It is unrealistic in this context, however, to expect the judge to interrupt counsel during cross-examination merely because the case may one day be reviewed under a substantial likelihood of a miscarriage of justice standard. There is something to be said for letting lawyers try their cases. 15
Finally, Marshall's testimony was but one piece of evidence
in an otherwise ornate puzzle. Viewing the evidence in the
light most favorable to the Commonwealth, the defendant admitted
to being present at the time of the murder, to owning and
disposing of the murder weapon, and to using the victim's cell
phone after the murder. The police found the defendant's mail
in the Toyota, and the victim's blood was found on the
defendant's boots, which the defendant admitted he was wearing
during the murder. As such, we are convinced that "stripping
the improper testimony from the other evidence, the judgment was
not substantially swayed by the error" (quotation omitted).
Perez, 460 Mass. at 695, quoting Commonwealth v. Lodge, 431
Mass. 461, 468 (2000).
3. Closing argument. The defendant next argues that the
prosecutor made several improper statements during his closing
argument, violating the defendant's due process rights. Because
the defendant did not object at trial, we review any error for a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Andre, 484 Mass. 403, 417 (2020). We consider
statements made during closing argument "in the context of the
whole argument, the evidence admitted at trial, and the judge's
instructions to the jury." Commonwealth v. Felder, 455 Mass.
359, 368 (2009). 16
The defendant argues that the prosecutor improperly invited
an inference of guilt based on the defendant's court room
behavior. During his closing argument, the prosecutor referred
to the defendant's testimony as "stone cold," and given without
"emotion" and without "indication of remorse . . . [or] regret."
Ultimately, the prosecutor drew a comparison between the
defendant's demeanor while testifying and the manner in which
the victim was killed: "I purport to you, ladies and gentlemen,
no emotion. He was stone cold, just as stone cold as the
shooting and the death of [the victim]." These statements were
improper. Cf. Commonwealth v. Smith, 387 Mass. 900, 907 (1983)
(no error for prosecutor to point out that, as jury observed,
defendant, who did not testify, "squirm[ed] and smirk[ed] and
laugh[ed]" during trial).
Prosecutors may "properly attack" a testifying defendant's
credibility, see Commonwealth v. Donovan, 422 Mass. 349, 357
(1996), and such an attack may include comments on the
defendant's demeanor on the witness stand, see Commonwealth v.
Kozec, 399 Mass. 514, 521 (1987). Prosecutors may not, however,
extrapolate from that demeanor and argue that the jury should
then draw an inference as to the defendant's conduct during the 17
alleged incident.12 Here, however, in at least one sentence of
the closing, the prosecutor's improper link between the
defendant's "stone cold" and emotionless testimony at trial and
the "stone cold" nature of the killing went beyond benign
comments on the defendant's credibility. See id. at 523-524
(improper and unfair for prosecutor to draw inference of guilt
based on "prosecutor's perception of the defendant's [sorrowful]
expression when the victim testified"); Commonwealth v.
Borodine, 371 Mass. 1, 9-10 (1976), cert. denied, 429 U.S. 1049
(1977) (error for prosecutor to reference "absence of remorse,"
as it was both immaterial and inappropriate). There was no
evidence as to the defendant's demeanor when he killed the
victim.
Nevertheless, we conclude that the error did not create a
Commonwealth v. Gardner, 479 Mass. 764, 776 (2018). The
prosecutor's characterizations comprised only two sentences of
his thirty-two page closing argument. Moreover, the judge
12Prosecutors may comment on a defendant's general appearance in closing, to the extent it is relevant. See Commonwealth v. Kater, 388 Mass. 519, 532-533, 535 (1983) (permissible to comment on defendant's changed hairstyle between crime and trial, but improper for prosecutor to imply defendant did not wear short-sleeved shirts during trial to try to conceal his hairy arms where witness testified that suspect had hairy arms). But see Commonwealth v. Young, 399 Mass. 527, 529 (1987) (improper to argue negative inference against defendant "from the fact that he sat quietly throughout the trial"). 18
provided three separate instructions to the jury that closing
arguments were not evidence, including a thorough instruction
just prior to closing arguments. We must presume the jury
understood those instructions. See Andre, 484 Mass. at 418. We
conclude that the prosecutor's statements were "unlikely to have
influenced the jury's ultimate decision," see Commonwealth v.
Salazar, 481 Mass. 105, 118 (2018), especially given the weight
of the evidence against the defendant, as described supra.13
4. Jury instructions. The defendant next argues that the
judge's jury instructions regarding circumstantial evidence and
inferences were incomplete,14 thereby decreasing the
13The defendant also makes a passing argument that the prosecutor improperly referred to Ayah and Quentin as "mystery men," thereby mocking the defendant's testimony. The defendant testified that while he did not know Ayah and Quentin's last names, he knew how to contact Ayah and he knew the address of the house where he had originally met both Ayah and Quentin. Despite this knowledge, taking the evidence in the light most favorable to the Commonwealth, the defendant did not provide the police with more than their general physical descriptions. The prosecutor's "mystery men" statements were accurate and within the bounds of a proper closing argument.
14As to the circumstantial evidence instruction, the defendant contends that the judge should have included language that states that where the Commonwealth's case is based solely on circumstantial evidence, the jury "may find the defendant guilty only if those circumstances are conclusive enough to leave you with a moral certainty –- a subjective state of near certitude –- that the defendant is guilty and that there is no other reasonable explanation of the facts as proven."
As to the inference instruction, the defendant contends that the judge should have included language that states that 19
Commonwealth's burden of proof.15 While the language the
defendant asserts should have been included comprises accurate
statements of the law, we have never said, and we do not now
say, that such language is required.
When determining whether a jury instruction "lowers the
criminal standard of proof, we consider the charge, taken as a
whole, and assess the possible impact of [an] alleged error on
the deliberations of a reasonable juror, i.e., whether a
reasonable juror could have used the instruction incorrectly"
(quotations omitted). Commonwealth v. Silva, 482 Mass. 275, 288
(2019), quoting Commonwealth v. Rosa, 422 Mass. 18, 27 (1996).
"This inquiry is not purely speculative but, rather, must be
supported by some evidence in the record." Silva, supra. "A
judge need not use any particular words in instructing the jury
as long as the legal concepts are properly described."
Commonwealth v. Robinson, 449 Mass. 1, 8 (2007).
"[i]n order to convict the defendant, you must find that all of the evidence and reasonable inferences that you have drawn, taken together, prove he is guilty beyond a reasonable doubt."
15In Commonwealth v. Bush, 427 Mass. 26, 32 n.4 (1998), we concluded that the trial judge adequately cured any possible error in the jury instructions by instructing the jury that "[t]he evidence must not only be consistent with the defendant's guilt, it must be inconsistent with his innocence" (citation omitted). To the extent the defendant argues that in purely circumstantial evidence cases such an instruction is mandatory, he is incorrect. The defendant cites to no cases, nor have we found any, in which we held as much. 20
"Taken as a whole, the judge's instructions on
circumstantial evidence and inferences 'correctly stated the
relevant principles and essentially cautioned the jury to be
sure of the strength and logic of any inferences they drew.'"
Silva, 482 Mass. at 290, quoting Commonwealth v. Schand, 420
Mass. 783, 795 (1995). As the defendant concedes, the judge
properly defined both direct and circumstantial evidence.16 The
judge then correctly defined the nature of an inference and
properly instructed the jury that they "may draw [an] inference
even if it is not necessary or inescapable, so long as it is
reasonable and warranted by the evidence."17 See Brown v.
Commonwealth, 407 Mass. 84, 89 (1990), S.C., 414 Mass. 123
(1993). See also Commonwealth v. Pires, 389 Mass. 657, 664
(1983) ("nature of an inference . . . [is] a concept intimately
related to circumstantial evidence"). Finally, the judge
16 The judge stated as follows:
"Direct evidence is when a witness testifies to something they heard, saw, or somehow sensed. The only question that you must resolve in your mind is whether or not you believe that witness.
"You have circumstantial evidence, where no witness can testify directly about the fact that is to be proven but you are presented with evidence of other facts and then asked to draw reasonable inferences from them about the fact that is to be proved."
17Contrary to the defendant's contention otherwise, the judge did instruct the jury "not to decide this case based on suspicion or conjecture." 21
provided a detailed and proper description of the Commonwealth's
burden to prove the elements of the charged offense beyond a
reasonable doubt, adhering to the then complete Webster
instruction. See Commonwealth v. Webster, 5 Cush. 295, 319-320
(1850), modified by Commonwealth v. Russell, 470 Mass. 464, 477
(2015) (adding definition of "moral certainty" to Webster
instruction). There was no error.
5. Ineffective assistance of counsel. The defendant next
asserts that he was deprived of effective assistance of counsel
because his trial counsel failed to investigate possible third-
party culprit evidence. We review claims of ineffective
assistance of counsel in cases of murder in the first degree for
a substantial likelihood of a miscarriage of justice. See
Commonwealth v. Gulla, 476 Mass. 743, 745-746 (2017).
The defendant argues that his trial counsel failed to "make
reasonable inquiries" into the allegations contained in the FBI
report, which indicated that the defendant was not at the crime
scene alone, as well as to investigate the knowledge of the
defendant's brother regarding the other potential individuals
involved. We conclude that the defendant's trial counsel did
not provide ineffective assistance.18
18The defendant also filed a motion for a new trial on similar grounds, which the trial judge denied. As discussed infra, the defendant did not raise the denial of that motion in his appeal. 22
Contrary to the defendant's contention that his trial
counsel "did nothing," the record indicates that the defendant's
investigator followed up on the FBI report both before and
during trial. The defendant has failed to present evidence as
to how further investigation into a largely inculpatory document
"might have accomplished something material for the defense."19
Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Regarding the possibly helpful testimony of the defendant's
brother, the defendant cites to a police report, which contains
a summary of the police's interview with the defendant's
brother. In that police report, however, the author explicitly
states that the knowledge of the defendant's brother regarding
the murder is based solely on what the defendant previously told
his brother. Moreover, the defendant fails to assert how trial
counsel's failure to elicit the testimony of the defendant's
brother regarding his knowledge of other potentially involved
individuals created a substantial likelihood of a miscarriage of
justice.
Trial counsel presented a complete and thorough defense,
contending that Ayah and Quentin, not the defendant, committed
19By way of example only, the defendant has never submitted an affidavit from Wolfe's counsel as to the content of Wolfe's proffer to Federal law enforcement or how to decipher counsel's notes. 23
the murder. The jury's rejection of the defense was due to
"weaknesses in the facts rather than any inadequacy of counsel."
Commonwealth v. Mercado, 383 Mass. 520, 528 (1981), quoting
Commonwealth v. Key, 381 Mass. 19, 33 (1980).20
6. Posttrial discovery. a. Procedural history. The
defendant filed two motions for posttrial discovery and a motion
to reconsider the denial of his first posttrial discovery
motion, among other motions.21 In support of those motions, the
20The defendant also argues that his trial counsel was ineffective in failing to object to the improper lay opinion testimony, to the prosecutor's references to the defendant as "stone cold," and to the judge's instructions on circumstantial evidence. Because we already concluded that these prior allegations of error either did not amount to error or did not create a substantial likelihood of a miscarriage of justice, these claims similarly do not amount to ineffective assistance of counsel. See Commonwealth v. Martinez, 431 Mass. 168, 185 (2000), quoting Commonwealth v. Kosilek, 423 Mass. 449, 457-458 (1996) ("[I]f an error not objected to by trial counsel does not create a substantial likelihood of a miscarriage of justice, . . . a claim of ineffective assistance of counsel with respect to such error will not succeed").
21The defendant also filed a motion for a new trial in 2004, which the trial judge denied. In 2018, the defendant included that denial in his motion to reconsider, the subsequent denial of which he appealed. Here, the defendant does not address his 2004 motion for a new trial, nor that aspect of his 2018 motion to reconsider. Pursuant to our § 33E review, we conclude that the trial judge did not err in denying those motions.
We understand that appellate counsel now asserts that the defendant's first version of events concerning the murder was arguably consistent with the FBI report. That version of events, in which Screw was the perpetrator, is different from the defendant's own trial testimony. While this theory may be 24
defendant primarily relied on three documents: the FBI report,
a 140-page affidavit in support of a Federal search warrant from
an unrelated Federal narcotics case (Federal search warrant
affidavit), and handwritten notes attributed to Wolfe's attorney
(attorney's notes). As stated supra, the FBI report contained
Wolfe's statements to investigators that Screw told Wolfe that
Screw had witnessed the defendant kill the victim. The Federal
search warrant affidavit pertained to a Federal narcotics
investigation into Wolfe, and while it mentioned Ayah and Screw,
it did not mention the murder. The nearly illegible attorney's
notes appeared to state that Screw said Screw killed someone
named DJ and that the defendant was with him when that occurred.
In 2004, the defendant moved for posttrial discovery of
"any and all [documents] in the possession of the federal
authorities" in which Wolfe is mentioned, arguing that the FBI
report and the Federal search warrant affidavit demonstrated
that the Federal authorities possessed exculpatory evidence.
The trial judge denied the motion, concluding that the defendant
failed to show that "further discovery or investigation would
pursued in a renewed motion for a new trial, trial counsel can hardly be faulted for not pursuing a theory different from his client's sworn testimony, and one emanating from an FBI report where a witness states that the defendant shot the victim. 25
produce anything helpful for his cause." The defendant appealed
from that denial.22
In 2018, the defendant filed a second motion for posttrial
discovery requesting from the Commonwealth information and
documents pertaining to himself, the FBI report, and Screw,
arguing that the Commonwealth either possessed or had access to
certain evidence, including exculpatory evidence in the Federal
government's possession. In support of his contentions, the
defendant again emphasized the FBI report and the attorney's
notes. In October 2018, a different motion judge denied the
defendant's second motion for posttrial discovery, concluding
that the information sought would not reasonably uncover
evidence warranting a new trial. The defendant appealed from
both denials.
b. Analysis. We review the denial of a motion for
posttrial discovery for abuse of discretion. See Commonwealth
v. Camacho, 472 Mass. 587, 598 (2015). To succeed on a
posttrial discovery motion, "a defendant must demonstrate that
it is reasonably likely that such discovery will lead to
evidence possibly warranting a new trial," and "the defendant
22On June 25, 2018, the defendant filed a motion to reconsider the denial of his 2004 posttrial discovery motion, which the trial judge denied two days later, concluding that the defendant did not raise any new claims that warranted reconsideration. 26
must make a prima facie showing that the evidence sought would
have materially benefited the defense and would have factored
into the jury's deliberations." Id. "A defendant cannot use a
motion for postconviction discovery to engage in a 'fishing
expedition.'" Commonwealth v. Ware, 471 Mass. 85, 94 (2015),
quoting E.B. Cypher, Criminal Practice and Procedure § 42:30
(4th ed. 2014).
Neither judge abused his or her discretion in denying the
defendant's motions. The defendant has not alleged any facts
amounting to a prima facie showing that the requested evidence
would exculpate him. To the contrary, the documents upon which
the defendant relies either inculpate him or do not reference
the murder,23 and are overwhelmingly based on second- or even
third-level hearsay. Moreover, the defendant makes no showing
that the Commonwealth has access to any exculpatory Federal
documents. See Ayala, 481 Mass. at 58 (defendant "has not
produced any evidence that the redacted portions of the file
contained any relevant, let alone exculpatory, information").
In sum, the defendant fails to show that the evidence sought
would have "materially benefited the defense and would have
23In his affidavit, the defendant acknowledged that the Federal search warrant affidavit is devoid of any information pertaining to the murder. 27
factored into the jury's deliberations." Camacho, 472 Mass. at
598.
7. Review under G. L. c. 278, § 33E. We have reviewed the
entire record of this case pursuant to our responsibilities
under G. L. c. 278, § 33E. We conclude that there is no basis
for ordering a new trial and affirm the defendant's conviction
and the orders denying his postconviction motions.
So ordered.