Commonwealth v. Tavares

• Court: Massachusetts Supreme Judicial Court
• Decided: February 24, 2023
• Docket: SJC 11375
• Status: Published

Opinion

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SJC-11375

COMMONWEALTH vs. OMAY TAVARES.

Suffolk. October 3, 2022. - February 24, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Homicide. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, New trial, Capital case. Evidence, Exculpatory.

Indictments found and returned in the Superior Court Department on April 1, 2010.

A motion for a new trial, filed on January 7, 2019, was heard by Beverly J. Cannone, J.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Elizabeth A. Billowitz for the defendant.

BUDD, C.J. On October 17, 2011, the defendant, Omay

Tavares, was convicted of murder in the first degree in

connection with the January 7, 2010, shooting death of George 2

Thompson.1 In 2019, the defendant filed a motion for a new trial

asserting ineffective assistance based on trial counsel's

failure to investigate exculpatory evidence provided by the

Commonwealth.2 After an evidentiary hearing, the motion judge,

who was not the trial judge, allowed the defendant's motion.

The matter is now before this court on the Commonwealth's appeal

from the motion judge's ruling. We affirm.

Background. We present the relevant factual and procedural

background as taken from the record, reserving certain details

for the discussion.

1. Pretrial. The defendant initially was assigned counsel

from the Committee for Public Counsel Services. However, a

family friend hired trial counsel to represent the defendant for

a flat fee of $5,000, learning only after the fact that counsel

recently had completed a one-year bar suspension for gross

incompetence resulting in his clients' imprisonment.3 In

preparation for what would be his first murder trial as lead

attorney, counsel requested and received court-ordered funds to

1 The defendant also was convicted of unlawful possession of a firearm, unlawful carrying of a loaded firearm, and unlawful possession of ammunition.

2 The defendant's direct appeal has been stayed pending disposition of his motion for a new trial.

3 Counsel disclosed his disciplinary history to the defendant's family friend only after she confronted him with the report of his suspension from the Board of Bar Overseers. 3

hire experts in the fields of cell site location information

(CSLI) and ballistics, but did not retain an investigator to

find or speak with witnesses.

On September 23, 2011, approximately two weeks before the

trial was scheduled to begin, the prosecutor advised counsel

that the Boston police department was in possession of a proffer

from a confidential informant containing information about an

alleged third-party shooter involved in the victim's murder.

Counsel was not provided with a redacted copy of the proffer

until October 4, 2011, one day before trial was to begin.4

According to the proffer, two individuals, "H.H.," who was

armed with a Taurus nine millimeter handgun, and "another man,"

went to the victim's apartment intending to rob the victim of

money and marijuana. When the victim lunged for the gun, he was

shot and killed.5 Trial counsel failed to request a continuance

to investigate the information contained in the proffer letter

and failed to inform the defendant that it existed.

2. Trial. The evidence presented to the jury was as

follows. On the evening of January 7, 2010, a light-skinned

male, approximately six feet tall, wearing a hooded sweatshirt

4 It is not apparent from the record why there was a delay in providing trial counsel with a redacted copy of the proffer.

5 The proffer did not name the other man but described him as having been arrested for the murder. 4

and skullcap, and identifying himself as "O," came to the

victim's apartment. A conversation between O and the victim

escalated to a loud disagreement, and then O pulled a gun from

his waistband, pointed it at the victim, and fired three shots.

The medical examiner later determined that the victim died from

multiple gunshot wounds to the head and torso. The bullets were

shot from a nine millimeter firearm.

An investigation revealed that the last call the victim

received prior to his death came from the defendant's cell

phone. CSLI data indicated that the defendant's cell phone

activated the cell tower closest to the victim's apartment

building at approximately the same time as the shooting, and a

latent fingerprint recovered from the exterior doorknob of the

victim's apartment belonged to the defendant. Investigators

also recovered a photograph of a hand holding a firearm, taken

on January 14, 2010, from the defendant's cell phone. Two

witnesses who saw the shooter at the victim's apartment on the

night of the killing were shown a photographic array that

included the defendant's photograph, but neither was able to

make a positive identification.

While being interviewed by police, the defendant

acknowledged that he and the victim previously had had a

disagreement over the price at which the victim had sold the

defendant some marijuana. After the interview, the defendant 5

sent a text message to an unknown individual that stated, "Yo, I

got bagged." During a search of the defendant's home, police

recovered marijuana and $500 cash, as well as clothing matching

the description of clothing worn by the individual who came to

the victim's apartment on the night of the shooting. The murder

weapon was not recovered.

At trial, counsel argued that police failed to investigate

other leads, see Commonwealth v. Bowden, 379 Mass. 472 (1980),

and that the defendant had been misidentified as the shooter.6

However, he failed to use any of the information contained in

the proffer that supported these arguments. Indeed, when H.H.,

the man alleged in the proffer to be a third-party culprit,

appeared in court on the first day of jury empanelment and, in

counsel's presence, was ordered by the judge to be available for

trial, counsel did not request a continuance to interview him,

or take any other measures to capitalize on the presence of H.H.

The defendant was convicted of murder in the first degree on

theories of deliberate premeditation and extreme atrocity or

cruelty.

3. Posttrial. When the defendant obtained new counsel, he

learned of the proffer letter and moved for a new trial based on

6 To support the misidentification argument, trial counsel called the defendant's mother, girlfriend, and work supervisor as witnesses to argue that the defendant's traits and habits were inconsistent with the description of the shooter. 6

ineffective assistance of counsel. Trial counsel submitted an

affidavit in support of the motion and testified at the

evidentiary hearing. Although he recalled being made aware of

the proffer letter containing potential third-party culprit

evidence, he did not recall investigating it.

The motion judge concluded that trial counsel provided

constitutionally ineffective assistance and allowed the

defendant's motion for a new trial. The Commonwealth timely

appealed.

Discussion. 1. Relevant standards for ineffective

assistance of counsel claim. A judge "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. 1501 (2001).

Where a motion for a new trial is based on ineffective

assistance of counsel, the defendant must show that (1) the

"behavior of counsel [fell] measurably below that which might be

expected from an ordinary fallible lawyer" and (2) such failing

"likely deprived the defendant of an otherwise available,

substantial ground of defence." Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).

We review the judge's decision to grant the defendant a new

trial for error of law or abuse of discretion. Commonwealth v.

Lessieur, 488 Mass. 620, 627 (2021). Citing Commonwealth v.

Diaz Perez, 484 Mass. 69, 74 (2020), the defendant contends that 7

we should employ the substantial likelihood of a miscarriage of

justice standard pursuant to G. L. c. 278, § 33E (§ 33E). In

Diaz Perez, we stated that because the case involved murder in

the first degree, we reviewed the judge's decision to grant a

motion for a new trial based on an ineffective assistance claim

under the § 33E standard. Id. However, that was incorrect

because the defendant's direct appeal had been stayed pending

the outcome of the appeal from the decision on the new trial

motion. Id. at 71. As the § 33E standard applies only in

connection with the plenary review of direct appeals from

convictions of murder in the first degree, it was not the

appropriate standard to apply to review the decision to grant a

new trial alone.7 See Commonwealth v. Alvarez, 433 Mass. 93, 101

7 We acknowledge that we have not always specifically stated that the § 33E standard is applicable when reviewing decisions on ineffective assistance of counsel claims only where we are deciding direct appeals from convictions of murder in the first degree. Compare, e.g., Commonwealth v. Ayala, 481 Mass. 46, 62 (2018), Commonwealth v. Kolenovic, 478 Mass. 189, 192-193 (2017), Commonwealth v. Laurore, 437 Mass. 65, 72 (2002), Commonwealth v. Frank, 433 Mass. 185, 187 (2001), and Commonwealth v. Coonan, 428 Mass. 823, 826-827 (1999), with Commonwealth v. Yat Fung Ng, 489 Mass. 242, 249 (2022), S.C., 491 Mass. 247 (2023), Commonwealth v. Hung Tan Vo, 427 Mass. 464, 469 (1998), Commonwealth v. Plant, 417 Mass. 704, 715 (1994), and Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). We acknowledge that this has led to some confusion. However, we are not aware of any other instances beyond Diaz Perez in which we improperly applied the § 33E standard in similar circumstances. We note that the defendant was not prejudiced by the error as we affirmed the judge's decision to grant a new trial. See Diaz Perez, 484 Mass. at 70. Moreover, we do not suggest that the case would 8

n.8 (2000), citing Commonwealth v. Hill, 432 Mass. 704, 710 n.14

(2000) ("Where the defendant's motion for a new trial was

allowed and the matter is before us on the Commonwealth's

appeal, we do not apply the substantial likelihood of a

miscarriage of justice standard provided by . . . § 33E").

2. Application. "The duty to investigate is one of the

foundations of the effective assistance of counsel, because

counsel's strategic decisions can be adequate only if counsel is

sufficiently informed about the available options."

Commonwealth v. Long, 476 Mass. 526, 532 (2017). Where an

ineffective assistance of counsel claim is brought, "a

particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel's judgments." Strickland v.

Washington, 466 U.S. 668, 691 (1984). That is, although trial

counsel need not descend into every rabbit hole, he or she "has

a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary." Id.

Here, counsel was informed of a proffer indicating that

someone other than his client had gone to the victim's home on

the evening of the killing with an intent to rob the victim and

have turned out differently under the correct standard: as the prevailing party below, the defendant would have benefited from the deferential error of law or abuse of discretion standard of review. 9

carrying the same caliber firearm as that used in the killing.

Qualitatively different from a rumor or neighborhood gossip, a

proffer is a written legal agreement between the government and

an individual in which the individual agrees to provide

information about one or more crimes to the government in

exchange for the government's promise that any information

provided by the individual will not be used against him or her

later in court. See United States v. Lopez, 219 F.3d 343, 345

n.1 (4th Cir. 2000). Cf. Commonwealth v. Bolduc, 375 Mass. 530,

540 (1978) (mere speculation that exculpatory facts exist

insufficient to support ineffective assistance claim).

Given the significance of the information, counsel was

required to provide a satisfactory reason for not making use of

it. At the motion hearing, counsel asserted that he did not

request a continuance to investigate the proffer because he

feared his witnesses might not be available at a later date.

The judge rejected this explanation as a reasonable tactical

decision, noting that "there [was] no evidence in the record to

support that premise," and that, at any rate, the defendant's

primary witness "could not provide a confident alibi." The

judge thus concluded that the decision not to investigate fell

"measurably below that which might be expected from an ordinary

fallible lawyer." See Alvarez, 433 Mass. at 101-102 (no

reasonable tactical judgment in failing to obtain or review 10

defendant's medical evidence where such investigation would have

aligned with defense at trial); Commonwealth v. Haggerty, 400

Mass. 437, 442 (1987) ("Failure to investigate the only defense

a defendant has, if facts known to or with minimal diligence

accessible to counsel support that defense, falls beneath the

level of competency expected").

The Commonwealth denies that counsel acted unreasonably,

arguing that the proffer evidence was more inculpatory than

exculpatory because it supported the theory that the defendant

was involved in the shooting. We do not define the term

"exculpatory" as narrowly as does the Commonwealth here.

"[E]vidence is exculpatory if it provides some significant aid

to the defendant's case, whether it [(1)] furnishes

corroboration of the defendant's story, [(2)] calls into

question a material, although not indispensable, element of the

prosecution's version of the events, or [(3)] challenges the

credibility of a key prosecution witness" (quotation and

citation omitted). Commonwealth v. Pope, 489 Mass. 790, 800

(2022).

Here, the proffer evidence had the potential to aid the

defendant in each of these ways. It suggested that H.H. was the

shooter, thereby corroborating the mistaken identity claim; it

undercut the Commonwealth's theory that the defendant was the

sole shooter in the victim's murder; and it challenged the 11

credibility of the two witnesses who reported that only one man

came to the victim's home on the night of the shooting.

The judge additionally concluded that the second prong of

the Saferian test was met, as the proffer evidence would have

bolstered the defendant's Bowden defense by suggesting that the

Commonwealth failed to investigate the possibility that someone

other than the defendant committed the crime,8 and by supporting

a new and compelling third-party culprit defense. See

Commonwealth v. Alcide, 472 Mass. 150, 161-163 (2015) (trial

counsel's failure to introduce significant discovery that

supported defendant's third-party culprit defense constituted

ineffective assistance); Commonwealth v. Phinney, 446 Mass. 155,

162-166 (2006), S.C., 448 Mass. 621 (2007) (trial counsel's

failure to read and use exculpatory police reports constituted

ineffective assistance).

On this point, the Commonwealth contends that even if the

proffer evidence had been used, it would have supported another

theory under which the jury could have chosen to convict the

defendant: felony-murder. This argument is unavailing. The

Commonwealth's theory at trial was that the defendant was the

8 According to the judge's memorandum of decision, at the time of the murder both H.H. and the confidential informant were members of a gang that "had frequently been tipped off by members of the [Boston police department] as to its and [F]ederal investigations into [the gang's] activities." 12

lone shooter. The prosecutor neither presented evidence of a

joint venture, nor requested instructions on felony-murder.

Thus, what otherwise might have happened if the case had been

tried differently is purely speculative.9 Cf. Commonwealth v.

Quiles, 488 Mass. 298, 306-307 (2021), cert. denied, 142 S. Ct.

1237 (2022) (conviction upheld where jury were instructed on and

had clear opportunity to consider alternate theory of felony-

murder even though defendant was not charged with predicate

felony).

The judge noted that the Commonwealth's evidence against

the defendant was "strong," but "not overwhelming." Where, as

here, use of the proffer evidence could have raised a reasonable

doubt as to whether the defendant murdered the victim, we cannot

say that the judge erred or abused her discretion in concluding

that counsel's assistance constitutionally was ineffective.

Order allowing motion for a new trial affirmed.

9 The Commonwealth also argues that the proffer would have been inadmissible at trial because it contains multiple layers of hearsay. Regardless of its admissibility, on which we do not opine, the proffer contained evidence that the defendant could have used in the preparation of his defense.