NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-11459
COMMONWEALTH vs. ROBERT L. UPTON.
Barnstable. October 2, 2019. - February 19, 2020.
Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Homicide. Evidence, Conflicting statements of witness, Credibility of witness, Impeachment of credibility, Prior misconduct. Witness, Credibility, Impeachment. Practice, Criminal, Agreement between prosecutor and witness, New trial, Capital case.
Indictments found and returned in the Superior Court Department on December 18, 2009.
The cases were tried before Gary A. Nickerson, J., and motions for a new trial, filed on December 31, 2014, and February 2, 2018, respectively, were considered by him.
Theodore F. Riordan (Deborah Bates Riordan also present) for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.
LOWY, J. A jury convicted the defendant, Robert L. Upton,
of murder in the first degree on the theories of deliberate
premeditation and felony-murder with the predicate felony of 2
attempted armed robbery, for shooting the brother of his
sister's husband. The jury also convicted the defendant of
aggravated assault and battery by means of a dangerous weapon,
and of armed assault in a dwelling house. On appeal, the
defendant contends that newly discovered evidence comprised of,
among other components, subsequent contradictory testimony by
the Commonwealth's key witness indicates that the prosecution
failed to disclose a plea agreement at the time of trial in
violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), and that
the Superior Court judge erred in denying his second motion for
a new trial without an evidentiary hearing on the matter.1
Because we find no abuse of discretion, we affirm. We also
affirm the defendant's convictions and decline to exercise our
authority under G. L. c. 278, § 33E, to reduce or set aside the
verdict on the murder conviction.
Background. We recite facts that the jury could have found
and that are necessary to resolve the defendants' appeal,
reserving some facts for later discussion. Commonwealth v.
Barry, 481 Mass. 388, 390 (2019), cert. denied, 140 S.Ct. 51
(2019).
1 The defendant appealed from the denial of his first motion for a new trial, yet did not discuss the issues in his brief or in any supplemental filings. Still, pursuant to G. L. c. 278, § 33E, we have reviewed the motion and the motion judge's reasoning and decision, and we have found no error. 3
On the night of September 29, 2009, the defendant and his
nephew, Christopher Manoloules, went to the Hyannis house of the
victim, Aris Manoloules. The next day, the police found the
victim shot four times, including once in the back of his head.
The murder plot involved a complicated family dynamic
stemming from the 2007 death of the family matriarch, who had
had three children: Treefon Manoloules, Irene Manoloules, and
the victim. The matriarch bequeathed her entire $2 million
estate to the victim, who had been her sole caretaker while she
suffered from multiple sclerosis. The defendant's sister joined
the Manoloules family by marrying Treefon, and Christopher, who
was seventeen at the time of the murder, was their son.2
Christopher was a troubled youth, and his father
exacerbated those problems. Christopher testified that when he
was fifteen years old, Treefon had him illegally drive a vehicle
and buy bulk amounts of marijuana. In addition, after the death
of Christopher's grandmother, Treefon, who wanted his share of
the inheritance, involved Christopher in several unsuccessful
plots to kill the victim, including by a heroin overdose.
Through these troubles, the defendant remained largely absent
from Christopher's life until 2009.
2 We refer to Christopher, Treefon, and Irene by their first names. 4
In May 2009, the defendant moved in with his girlfriend.
Between then and September 2009, the defendant experienced
significant financial difficulty, including the loss of his job
in July. He owed his girlfriend's father $10,000, and a car
dealership repossessed, for lack of payment, a $77,000 Mercedes
vehicle that he had purchased for his girlfriend in July 2009.
It was during this time that Treefon reached out to the
defendant to mentor Christopher.
During the week leading up to the murder, the defendant, in
short order, fostered a criminal entrepreneurship in his nephew.
The defendant informed Christopher that an individual was going
to kill the defendant's older daughter if the defendant did not
repay a debt of $165,000. As this alleged threat involved his
cousin, Christopher wanted to help. The defendant proposed
several plans to obtain the money, including theft of
automobiles. Christopher asked one of his friends to assist in
the endeavor. When, after a couple of days, the threesome
failed to obtain money illicitly, Christopher spoke to Treefon
about the defendant's predicament.
With Christopher and Christopher's friend present, Treefon
offered to pay the defendant $165,000 to kill the victim by
shooting him. On the day of the murder, Treefon insisted that
the defendant purchase a gun; the defendant complied, buying a
nine millimeter Ruger pistol and a box of ammunition. Treefon 5
told Christopher to use a ruse to convince the victim to allow
Christopher, with the defendant in tow, to visit the victim at
his Hyannis house. Despite having offered to pay the defendant
to kill the victim, Treefon assured Christopher that the real
plan involved only stealing the matriarch's jewelry.
Christopher testified that the defendant drove him to the
victim's house. They entered through the unlocked front door,
and then sat with the victim in his family room. Christopher
excused himself on the pretense of going to the bathroom, but he
instead proceeded to search the victim's bedrooms for the
jewelry. Finding none, Christopher called the defendant into
the kitchen, informed him that there was no jewelry, and asked
to leave. The defendant pulled out the Ruger, cocked the
hammer, and walked back into the family room where the victim
was watching a Red Sox game. Christopher heard four gunshots.
After the murder, the defendant dropped off Christopher at
his parent's home and spoke to Treefon. The defendant returned
to his girlfriend's home at around 1:30 A.M. on September 30,
2009. That afternoon, the defendant's girlfriend arrived home
from work, saw the defendant cleaning a disassembled gun on a
table, and asked him to remove it. Approximately ten to fifteen
minutes later, she saw that the gun was gone.
That same day, Treefon requested that the police conduct a
wellness check on the victim. Shortly after 5:35 P.M., the 6
police discovered the victim's body on the floor of his family
room, with four spent shell casings in the area. At around
midnight, the police arrested Christopher at his parents' house.
On October 1, 2009, the police interrogated the defendant,
and he told a story littered with inconsistencies and denials.
He admitted to buying the Ruger and ammunition on September 29,
2009, but claimed that he had not seen the gun or ammunition
since that night after he locked the gun in a case and placed
the case and the ammunition in the trunk of his car. The
defendant also denied being present on Cape Cod on the night of
the murder, but later acknowledged that he drove there with
Christopher. The defendant subsequently admitted to dropping
Christopher in a Hyannis parking lot between 9 P.M. and 10 P.M.
so that Christopher could meet with an unidentified individual.
The defendant stated that he had remained in the vehicle. He
justified his earlier misleading statements as an attempt to
protect Christopher, and he never provided details about being
at the victim's house.
On December 11, 2009, the Commonwealth indicted Christopher
for murder in the first degree, assault by means of a dangerous
weapon with the intent to murder, aggravated assault and battery
with a deadly weapon, and armed assault in a dwelling. On
December 18, 2009, the Commonwealth indicted the defendant on
the same charges. 7
In July 2010, Christopher decided to cooperate with the
police investigation and the prosecution. He told investigators
about Treefon's orchestration of the murder plot and identified
the defendant as the shooter. Christopher then testified for
the Commonwealth at Treefon's trial for murder,3 but the jury
acquitted his father on all counts.
At the defendant's trial in January 2013, Christopher
served as the Commonwealth's key witness. On the first day of
trial, the defendant filed a motion in limine for an evidentiary
hearing regarding undisclosed promises, rewards, and inducements
to Christopher for his testimony, supported by an attorney's
affidavit and a letter that Christopher's attorney sent to the
prosecutors before trial admonishing their disclosure practices.
However, the defendant then agreed to proceed to trial without a
ruling on the motion.4 Once on the stand, Christopher testified
to the defendant's guilt, and denied doing so for any quid pro
quo with the Commonwealth. In May 2013, four months after the
defendant's trial concluded, Christopher nonetheless pleaded
3 The Commonwealth also charged Treefon with two counts of conspiracy under G. L. c. 274, § 7, and an attempt to commit a crime under G. L. c. 274, § 6. The record does not provide details about the conspiracy or about the attempted crime.
4 In response to the motion, the Commonwealth disclosed that they had only made one promise to Christopher in exchange for his testimony: "his statements would not be used against him at any proceeding where he was the defendant on trial." 8
guilty, inter alia, to manslaughter instead of murder, and
received a sentence of from twelve to fifteen years.
The Commonwealth did not rely solely on Christopher's
testimony to tie the defendant to the murder. Christopher's
friend testified that he had heard Treefon offer to pay the
defendant to kill the victim. In addition, forensic evidence
established that the defendant's Ruger fired the bullets that
killed the victim. According to the testimony of the
defendant's girlfriend, she found the gun in her basement days
after the defendant's interrogation and believed that the
defendant had hidden it there after she demanded that he remove
it from her home. Moreover, the Commonwealth's ballistics
expert testified that four bullets were missing from the
defendant's ammunition case, and that the bullets in the
ammunition case were the same type of ammunition fired from the
defendant's Ruger at the victim.
The Commonwealth also established that the defendant
suffered from substantial financial woes, discussed supra.
Significantly, on the day of the murder, the defendant sent a
text message to a salesperson at the Mercedes dealership, in
which the defendant expressed his belief that he would soon have
enough money to pay for the Mercedes, and in which the defendant
also stated that he would be getting the money from his
"brother-in-law." The defendant did not testify. 9
Discussion. 1. Standard of review. Because we consider
the "defendant's direct appeal from a conviction of murder in
the first degree together with an appeal from the denial of a
motion for a new trial, we review the whole case [pursuant to]
G. L. c. 278, § 33E." Commonwealth v. Goitia, 480 Mass. 763,
768 (2018). We therefore review raised or preserved issues
according to their constitutional or common-law standard and
analyze any unraised, unpreserved, or unargued errors, and other
errors we discover after a comprehensive review of the entire
record, for a substantial likelihood of a miscarriage of
justice. See Commonwealth v. Brown, 477 Mass. 805, 821 (2017),
cert. denied, 139 S. Ct. 54 (2018). For an error to have
created a substantial likelihood of a miscarriage of justice, it
must have been "likely to have influenced the jury's conclusion"
(citation omitted). Goitia, supra.
2. Defendant's second motion for a new trial. "[T]he
Commonwealth has an obligation to disclose the terms of any
agreement, promise, or inducement proffered to a testifying
witness before trial, and . . . a failure to do so may violate
the defendant's right to due process." Commonwealth v. Rebello,
450 Mass. 118, 122 (2007). See Brady, 373 U.S. at 87. Despite
the denials by Christopher and the prosecutor that any deal
existed, the defendant argues that newly discovered evidence
demonstrates that such a deal did exist in violation of Brady. 10
He asserts that he deserves a new trial because that evidence
raises questions about the credibility of Christopher, the
Commonwealth's key witness at the defendant's trial.
The circumstances giving rise to the defendant's claim are
as follows. Sometime after the victim's death, Treefon and his
sister, Irene, each inherited one-half of the victim's $2
million estate. As executrix of the victim's estate, Irene
tried to recoup Treefon's share by filing a wrongful death
action (civil action) against Treefon.5 The trial in this action
was held in 2016, three years after the defendant's trial.
Christopher appeared as a witness defending Treefon, testifying
that he had entered into an undisclosed plea deal with the
Commonwealth at the time of both Treefon's and the defendant's
criminal trials, notwithstanding his testimony to the contrary
before the grand jury and at those trials. The jury in the
civil action found Treefon not liable for the victim's death.
Following Christopher's testimony in the civil action
(civil action testimony), the defendant filed a second motion
for a new trial, which is part of this appeal, alleging that
Christopher's civil action testimony, the jury's subsequent
finding of no liability for Treefon, and Christopher's plea deal
constituted "newly discovered evidence" that would have
5 The suit also named Christopher and the defendant as codefendants. 11
substantially affected the jury's deliberations in the
defendant's criminal trial.6 To support the motion, the
defendant attached excerpts from Christopher's civil action
testimony, transcripts from Christopher's plea hearing, excerpts
from Christopher's testimony in Treefon's criminal trial, and
citations to arguments made during the defendant's criminal
trial. The defendant failed, however, to file any affidavits
from Christopher's counsel or the prosecutors, or to file an
affidavit stating that he attempted to obtain such affidavits.
The motion judge, who was also the trial judge, denied the
second motion for a new trial without holding an evidentiary
hearing, but issued a detailed memorandum of decision outlining
6 The defendant also alleged that (1) Christopher's guilty plea demonstrated his culpability in the murder, undermining his trial testimony, and casting real doubt on the defendant's conviction; and (2) the civil jury's finding of no liability for Treefon proved that Treefon could not have hired the defendant to murder the victim, thus undermining the Commonwealth's entire theory at the defendant's trial. Neither claim has any merit. First, even assuming the plea deal is newly discovered, Christopher's plea would only evidence a Brady violation if Christopher had admitted to the murder to the Commonwealth before trial and if the Commonwealth did not turn that information over to the defendant. It also does not exculpate the defendant; at the very least, the plea shows that Christopher was complicit with the defendant. The plea also would constitute cumulative impeachment evidence if admitted at trial because defense counsel repeatedly impeached Christopher's claims of innocence at trial. See discussion infra. Second, the civil action verdict cannot be newly discovered because it is not evidence. Moreover, the civil trial involved different burdens on the parties and different burdens of proof. It had a different trier of fact, and different testimony upon which the jurors reached their conclusion. 12
why the defendant's evidence was not credible and did not
materially demonstrate that the prosecutor and Christopher had
entered into an undisclosed plea deal in violation of Brady.
The judge also explained why Christopher's testimony did not
comprise impeachment evidence sufficient to grant a new trial.
This consolidated appeal from the defendant's convictions and
the orders denying both of the defendant's new trial motions
followed.
a. Decision not to hold an evidentiary hearing. When
considering a motion for a new trial, a judge "may rule on the
motion 'on the basis of the facts alleged in the affidavits
without further [evidentiary] hearing if no substantial issue is
raised by the motion or affidavits.'" Commonwealth v. Goodreau,
442 Mass. 341, 348 (2004), quoting Mass. R. Crim. P. 30 (c), 378
Mass. 900 (1979). In determining whether a substantial issue
exists, "a judge considers the seriousness of the issues raised
and the adequacy of the defendant's showing on those issues"
(citation omitted). Barry, 481 Mass. at 401. Clearly, the
existence of an undisclosed plea agreement in violation of Brady
would raise a serious issue. See Goodreau, supra.
To demonstrate an adequately substantial issue to receive
an evidentiary hearing, the defendant's submissions "need not
prove the [motion's] factual premise . . . but they must contain
sufficient credible information to cast doubt on the issue" 13
(quotations and citations omitted). Goodreau, 442 Mass. at 348.
When examining such evidentiary submissions, motion judges who
also served as trial judges can use their "knowledge and
evaluation of the evidence at trial" (citation omitted),
Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), to "consider
whether holding a hearing will add anything" to the credibility
or materiality of the affidavits submitted. Goodreau, supra.
We review a judge's decision to deny a motion for a new
trial without holding an evidentiary hearing "for a significant
error of law or other abuse of discretion" (citation omitted).
Commonwealth v. Bonnett, 482 Mass. 838, 843-844 (2019). See
Barry, 481 Mass. at 401. This court extends "special [or
substantial] deference" in situations such as this where the
motion judge also conducted the trial, Commonwealth v. Grace,
397 Mass. 303, 307 (1986), and thus was in a "superior position
to assess the credibility of the defendant's claims" of an
undisclosed plea deal. Commonwealth v. Freeman, 442 Mass. 779,
792 n.14 (2004). Reversal for abuse of discretion in such
circumstances "is particularly rare" (citation omitted).
Commonwealth v. Rice, 441 Mass. 291, 302 (2004). We will
reverse the judgment only if the judge made "a clear error of
judgment in weighing the factors relevant to the decision . . .
such that the decision falls outside the range of reasonable 14
alternatives" (quotations and citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The judge here did not err in finding that the defendant's
evidence of a Brady violation, including the submitted
affidavits, Christopher's plea, and Christopher's civil action
testimony, did not create a substantial issue warranting an
evidentiary hearing because the evidence was not sufficiently
credible to "cast doubt on the issue" (quotations and citation
omitted). Goodreau, 442 Mass. at 348.
i. Lack of affidavits. A judge may deny a motion for a
new trial without an evidentiary hearing where the moving party
"suspicious[ly] fail[s] to provide pertinent information from an
expected and available source." Goodreau, supra at 354.
Defense counsel aiming to uncover a secret plea agreement
should, at a minimum, attempt to obtain information from the key
witness's attorney and the prosecutor who supposedly negotiated
the deal. See Commonwealth v. Hill, 432 Mass. 704, 710-711 &
n.15 (2000). Even if those parties refuse to provide
affidavits, as the defendant here assumed they would, defense
counsel could provide evidence of a possible Brady violation by
filing an affidavit presenting the parties' refusal to attest to
the lack of a negotiation or plea deal. See Commonwealth v.
Raymond, 450 Mass. 729, 734 (2008) ("the absence of
countervailing affidavits from those in a position to know the 15
truth regarding the existence of an agreement supports a
determination of a lack of credibility"). Here, defendant did
neither and the silence betrays a "very telling omission"
confirming the judge's finding that the defendant's motion did
not raise a substantial issue about the existence of an
undisclosed plea agreement. Goodreau, supra. See Commonwealth
v. DeCicco, 51 Mass. App. Ct. 159, 163 (2001) (lack of
affidavits as to plea agreement "handicapped" court).
ii. Plea agreement. Christopher's guilty plea also does
not raise a substantial issue requiring an evidentiary hearing.
Even though a favorable disposition for a cooperating witness
following testimony can, when combined with other strong
evidence, raise a substantial issue to cast doubt on a jury's
conclusion, that situation does not present here. See Hill, 432
Mass. at 710-711.
In his second motion for a new trial, the defendant
attempted to explain how the facts in his case align with those
in Hill, 432 Mass. at 716, where we held that the key witness's
later plea provided grounds for a new trial. As the judge here
properly determined, the defendant's arguments are unavailing.
In Hill, we affirmed an order for a new trial because the key
witness received a plea deal that reduced his possible sentence
by at least twelve and one-half years from the sentence that he
would have received under his original indictment, in part 16
because during his testimony at the defendant's trial, the
witness admitted to conduct that should have carried a
significantly higher penalty, thus supporting an inference that
the witness had an expectation of "substantial consideration."
See id. at 711-712. Although Christopher also received a more
favorable sentence than what one would have expected based on
his original indictment for murder in the first degree, he
distanced, rather than inculpated, himself from his murder
charge during his testimony at the defendant's trial.
Second, the defendant ignores that in Hill, 432 Mass. at
711, we relied on representations made by the prosecutor and the
key witness at trial that "reasonably could be interpreted . . .
as a promise" that later came to fruition. The judge here found
the opposite. He explicitly endorsed the "prosecutor's
specific, credible, and repeated [on-the-record] denials" of an
undisclosed plea agreement. At a sidebar discussing the
defendant's motion in limine, the judge asked the prosecutor
whether there were "any promise, reward or inducement," to which
the prosecutor responded, "No."7 The prosecutor then explained
that, during Treefon's criminal trial, Christopher testified and
defense counsel cross-examined him regarding any expectation of
7 The judge asked again whether "anybody said to [Christopher], 'Kid, you are getting second [degree murder] for [your testimony]'" and the prosecutor responded with "No, not by the Commonwealth. Not by me." 17
a plea deal, and that Christopher also told the grand jury that
there was no deal or collusion. Further, the judge noted that
because he made "[non]cursory or general" inquiries to the
prosecutor, which the prosecutor denied directly, there was "no
reason to repeat what would be a nearly identical inquiry of the
prosecutor in a separate evidentiary hearing on this motion."
Moreover, defense counsel admitted at trial that his only
factual evidence was an attorney's affidavit, attesting to
having overheard a conversation outside of Treefon's criminal
trial, in which an assistant district attorney unrelated to
Treefon's or the defendant's criminal trials stated that
Christopher would receive a plea of murder in the second degree
for his testimony at Treefon's trial. Defense counsel then
confessed that the motion relied in part on his "subjective
understanding" that prosecutors in Barnstable County often
violated Brady by withholding evidence of plea deals with
cooperating witnesses. Instead of providing concrete evidence
to bolster his view, defense counsel posited that "[i]t strains
credulity to think that Christopher . . . , who is charged with
a first degree murder, testified in the last trial for the
Commonwealth, is going to testify in this trial for the
Commonwealth and has nothing -- nothing -- nothing unspoken,
nothing tacit -- in other words, he's going to walk out of here
after that trial thinking in his head that he could still get 18
prosecuted for first degree murder. That's rubbish. That's not
true." As attractive as his rhetoric may be, it is not legally
persuasive. Cf. Commonwealth v. Jackson, 428 Mass. 455, 458-459
(1998) (discussing defense counsel's persuasive, yet legally
unsuccessful, arguments about cooperating witness testifying to
"save his own neck" and to "do anything, absolutely anything to
please the government and convict [the defendant] because he
doesn't want the punishment"). Without any statements by the
prosecutor, by Christopher, or by his plea counsel hinting at
promises, the judge did not abuse his discretion by trusting the
prosecutor's unequivocal denials over the defense counsel's
subjectively based thesis.
Lastly, the defendant cherry-picked statements at
Christopher's plea hearing in an endeavor to align the facts in
his case with those in Hill, 432 Mass. at 708, where the
prosecutor noted at a hearing on the key witness's plea deal
that the Commonwealth had offered a lighter sentence as a "quid
pro quo" for the witness's testimony. The prosecutor here
admitted that Christopher received a plea deal in part because
of his testimony against Treefon and the defendant at their
criminal trials. Unlike in Hill though, the comments by the
prosecutor and Christopher's counsel at the plea hearing weigh
against the defendant's position, and the defendant's
selectively quoted words and phrases from the plea hearing, 19
taken out of context and contrary to their intended meaning, are
not convincing.8
In sum, the judge made no "clear error of judgment," L.L.,
470 Mass. at 185 n.27, in deciding that none of the evidence
concerning what Christopher or the prosecutor said at the
defendant's trial or at Christopher's plea deal "raise[d] a
substantial issue with respect to" the existence of an
8 First, the defendant points out that the prosecutor noted "no discussions concerning a change of plea were ever openly discussed" (emphasis added). As the motion judge noted, that statement has to be considered in the context of the prosecutor's statement that immediately preceded the "openly discussed" comment, that "there was never an offer made to [Christopher] or his attorney during the pendency" of Treefon's or the defendant's cases. In this context, the word "openly" does not magically connote any hidden agreement, and we agree with the judge that it likely demonstrated that the prosecutors may have deliberated internally about offering a plea before the end of trial or that they never uttered anything concerning it until after the trial. Next, the defendant highlights that Christopher's plea counsel called the prosecutor a "man of his word" following the Commonwealth's recommendation of the plea. But, as determined by the motion judge, Christopher's plea counsel used that phrase in the course of explaining to the plea judge that the prosecutor had helped instigate Christopher's transfer to a new jail because he endured serious threats for cooperating with investigations. Finally, the defendant incorrectly alleges that Christopher's plea counsel admitted that a "quid pro quo" existed. Christopher's plea counsel, not the prosecutor, mentioned "quid pro quo" while asking the judge for a lower sentence than the Commonwealth had recommended based on Christopher's "self-advancement and for his cooperation with the Commonwealth." Plea counsel was not explaining the underlying reason for the Commonwealth's recommendation for a sentence. As the judge stated, if there was a quid pro quo, the Commonwealth would have been bound by the agreement. 20
undisclosed plea deal in violation of Brady. Goodreau, 442
Mass. at 354.
iii. Credibility of Christopher's testimony at the civil
trial. In the context of a motion for a new trial "based on
recantation by a material witness," the motion judge "grave[ly]
consider[s] . . . the credibility of the witness's new
testimony" (citation omitted), Commonwealth v. Waters, 410 Mass.
224, 231 (1991), based on the judge's evaluation of the
submitted evidence "in light of factors pertinent to
credibility, including bias, self-interest, and delay,"
Commonwealth v. Torres, 469 Mass 398, 403 (2014). The judge
examined Christopher's civil action testimony in light of
Christopher's earlier trial appearances and grand jury
testimony. See Commonwealth v. Santiago, 458 Mass. 405, 416
(2010). Even though Christopher was the Commonwealth's key
witness and therefore his testimony was "particularly vulnerable
to even slight blows to its credibility," Commonwealth v.
Collins, 386 Mass. 1, 10 (1982), the judge determined that
Christopher's civil action testimony alleging the existence of a
secret plea agreement did not raise a substantial issue
sufficient for an evidentiary hearing because it was unreliable,
self-serving, and unworthy of further examination. See Torres,
469 Mass. at 403. The judge concluded that Christopher provided
his civil action testimony to protect his father, and by 21
extension his mother and sisters, from losing their half of the
victim's $2 million estate in Irene's wrongful death suit.
There was no abuse of discretion.
To sufficiently demonstrate that Treefon actually had no
connection to or responsibility for the victim's death,
Christopher needed to recant his earlier testimony incriminating
Treefon. Christopher asserted that his father "deserve[d] to
win." To that end, Christopher outright contradicted his
earlier testimony regarding the plea deal, and used the alleged
"secret," unwritten plea agreement to explain his previous
testimony against Treefon as a strategy encouraged by his
attorneys to avoid a life sentence. In addition, throughout his
civil action testimony, Christopher conveniently forgot facts or
conversations related to Treefon's involvement, while having
little difficulty remembering most details about the murder not
implicating his father, including that the defendant killed the
victim. Although not stating that his previous testimony
painting his father as the mastermind of the victim's death was
false, Christopher repeatedly claimed not to remember the
circumstances or facts behind that testimony or even to recall
giving that testimony only when confronting statements about
Treefon. "The judge could [therefore] rationally conclude that
the factual predicate for [these claims] was not credible."
Goodreau, 442 Mass. at 351. 22
b. Denial of the second motion for a new trial based on
newly discovered evidence of a Brady violation. For the same
reasons as stated supra, the judge did not abuse his discretion
in finding that there was no undisclosed plea deal that would
require granting the defendant's second motion for a new trial
based on the existence of a Brady violation. See Grace, 397
Mass. at 305-306.9
Even if we were to assume that Christopher's civil action
testimony were newly discovered and credible evidence, the
defendant could only prevail on the second motion for a new
trial if that newly discovered evidence would have been a "real
factor" in the jury deliberations so as to "cast real doubt on
the justice of the conviction."10 Grace, 397 Mass. at 305. See
9 Where the defendant does not meet the requisite burden to establish that the motion judge erred in denying his request for an evidentiary hearing for an alleged Brady violation, the defendant necessarily will not meet the requisite burden, using the same evidence, to establish that the motion judge erred (or abused his discretion) in denying the defendant's motion for a new trial based on newly discovered evidence of that alleged Brady violation. See Goodreau, 442 Mass. at 355. Although "[t]he inquiry into whether the defendant has satisfied the new trial standard is conceptually distinct from" the inquiry into whether the judge correctly decided not to hold an evidentiary hearing, the judge relies on "many of the same considerations" regarding the "trustworthiness" of the submitted evidence to determine if the newly discovered evidence meets the threshold for a new trial by "cast[ing] real doubt on the justice of the conviction." Commonwealth v. Drayton, 473 Mass. 23, 39 (2015), S.C., 479 Mass. 479 (2018).
10Some of our cases have reviewed an appeal from the denial of a motion for a new trial based on newly discovered evidence 23
Bonnett, 482 Mass. at 844. Although Christopher's civil action
testimony does not raise a substantial issue about the existence
of a Brady violation, it may constitute impeachment evidence of
the Commonwealth's key witness at the defendant's trial. Newly
discovered evidence that impeaches a key witness's credibility
usually does not warrant a new trial. Commonwealth v. Drayton,
479 Mass. 479, 490 (2018). However, we will grant a new trial
where the evidence "seriously undermines the credibility of that
[key] witness['s]" testimony upon which the Commonwealth's case
almost solely relied (citation omitted), Commonwealth v. Cowels,
470 Mass. 607, 621 (2015), as measured against the "over-all
strength or weakness of the prosecution's case," id. at 623.
Determining "whether such evidence warrants a new trial is left
to the sound discretion of the motion judge." See Commonwealth
v. Jones, 432 Mass. 623, 633 (2000).
First, even if the jury had heard the additional evidence
from the civil action, the judge did not abuse his discretion by
consolidated with the direct appeal from a conviction of murder in the first degree under the Grace standard. See Commonwealth v. Drayton, 473 Mass. 23, 31 (2015). Others have determined whether the newly discovered evidence created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Chatman, 466 Mass. 327, 333 (2013), S.C., 473 Mass. 840 (2016). Still others have combined the standards. See Commonwealth v. Shuman, 445 Mass. 268, 276 (2005). Although we have applied the Grace standard after a thorough review of the record, the outcome would be the same if we reviewed for a substantial likelihood of a miscarriage of justice, or for both standards. 24
concluding that it did not cast real doubt on the jury's
conviction given the remaining evidence submitted by the
Commonwealth. See Amaral, 482 Mass. at 511.
In addition to the testimony of Christopher's friend
corroborating the defendant's participation in the murder
scheme, the defendant admitted during his interrogation to being
with Christopher on Cape Cod at around the time of the murder,
without a plausible alternative reason for being there, and to
purchasing the Ruger and the ammunition that killed the victim.
As the judge noted, there was a "web of evidence" strongly
supporting the defendant's guilt, including his hiding the
murder weapon, the ballistics evidence, and the defendant's text
message, indicating the defendant's expectation of an influx of
cash from his brother-in-law on the day of the murder. The
judge did not abuse his discretion by concluding that such
evidence was "strongly persuasive" and therefore that
Christopher's civil action testimony would not have been a "real
factor" in the jury's deliberations so as to cast real doubt on
the jury's verdict (citation omitted). Bonnett, 482 Mass. at
844.
The defendant's version of events, which strained
credulity, bolstered the Commonwealth's affirmative evidence.
The defendant claimed that Christopher swiped the gun from the
trunk of the defendant's car and then shot the victim without 25
the defendant's knowledge, all while the defendant waited in his
car in a random parking lot in Hyannis. The defendant kept the
key to the gun case with his keys to the car, which, according
to his responses during interrogation, he never let out of his
sight on the night of September 29, 2009. The girlfriend found
the case locked in her basement days later. For Christopher to
have used the gun without the defendant's knowledge, Christopher
would have had to open the trunk, pick the lock on the gun case,
close the trunk, return from the murder, open the trunk, replace
the gun, and relock the case without a key, all without the
defendant noticing. The jury could reasonably have inferred
that this, or any similar version of the night's events,11 was
not credible, particularly in the context of the entirety of the
defendant's interrogation, which was marked by denials and
contradictions.
Second, the jury also knew that defense counsel's primary
trial strategy was to impeach Christopher's credibility,
11In one of the letters from jail to his ex-girlfriend, all entered as exhibits by the prosecution, the defendant told an alternative form of this story where the defendant (1) bought the gun; (2) drove to Christopher's house; (3) used the bathroom and Christopher somehow took the gun; (4) did not notice the gun missing while driving Christopher to the Cape to meet with an unknown individual; (5) stopped to use the bathroom when returning from the Cape, at which point Christopher put the gun back into his car's center console; (6) noticed the open gun case in his trunk when he returned to his ex-girlfriend's house; and (7) brought the gun inside. The story has flaws similar to those in the story he told to police. 26
accomplished by repeated assertions during cross-examination and
in closing. Specifically, defense counsel highlighted concerns
about Christopher testifying due to an undisclosed plea deal and
about Christopher's truthfulness. In other words, "to the
extent that [Christopher] had the sword of Damocles hanging over
him in the form of a murder charge, and thus had incentive to
please the prosecution in the hopes of establishing good will
and securing leniency even absent any explicit agreement, this
was argued by defense counsel at trial," Jackson, 428 Mass. at
458, and considered by the jury.12 The judge therefore did not
err in finding that admitting this testimony at trial would not
have materially affected the jury's deliberations so as to cast
real doubt on the conviction.
12Defense counsel noted during cross-examination that the Commonwealth had charged Christopher with murder in the first degree and asked if he would "be surprised" if he found himself "in this room three or four months" later. He also asked whether Christopher thought that he was "going to get something for testifying here" and insinuated that Christopher did not really testify to do the right thing. In closing, defense counsel first impeached Christopher's ability to tell the truth by reminding the jury that Christopher initially told one of his friends that he was responsible for the murder. Defense counsel later suggested that the jury was "being asked to swallow a legal fiction on the question of whether or not Christopher . . . is getting anything for testifying." He also informed the jury that promises could be as simple as a "nudge" or a "nod." Defense counsel finished by trying to convince the jurors that they should not believe Christopher's testimony because he only went to the police months after his arrest with "an expectation in his head of what he is getting for coming up here." 27
3. Review under G. L. c. 278, § 33E. As part of our
plenary review, we note that, on direct examination, Christopher
testified in response to the prosecutor's question, "What
happened next?" as follows:
[The defendant] -- he got in the car. And he said -- he said something like -- his hand was shaking; and he said something about he's not nervous. He said, 'I'm not nervous.' He said, 'I've done this before.'"
The defendant did not object to this statement at trial, in
either of his motions for a new trial, or as a part of his
direct appeal to us pursuant to G. L. c. 278, § 33E.
Presumably, this reference to "I've done this before" went
unnoticed by the parties and the court.
The prosecution "may not introduce evidence that a
defendant previously has misbehaved . . . for the purposes of
showing his bad character or propensity to commit the crime
charged" (citation omitted). Commonwealth v. Morgan, 460 Mass.
277, 289 (2011). See Mass. G. Evid. § 404 (b) (2019). However,
the prosecution may introduce that same evidence for other valid
reasons, so long as its probative value is not outweighed by the
danger of unfair prejudice. Commonwealth v. Crayton, 470 Mass.
228, 249 (2014). Judges "must guard against the risk that such
evidence will divert the jury's attention from the charged crime
or otherwise unfairly prejudice the defendant." Commonwealth v.
Facella, 478 Mass. 393, 407 (2017). In the absence of a 28
limiting instruction to the jury regarding the introduction of
prior bad acts where the defendant did not object, we review the
error for a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). On the
record before us, where the evidence was not specific as to what
the defendant had done before, and where the prosecutor did not
mention the fact in his closing, we find that the error created
no substantial likelihood of a miscarriage of justice.
We therefore conclude that the verdict of murder in the
first degree is consonant with justice, and we decline to
exercise our authority under G. L. c. 278, § 33E to order a new
trial or to reduce the verdict.
Conclusion. For the reasons stated, we affirm the
defendant's convictions and the orders of the Superior Court
denying the defendant's motions for a new trial.
So ordered.