COMMONWEALTH OF MASSACHUSETTS

PLYMOUTH, SS BROCKTON SUPERIOR COURT
NO. 8583CR81865
COMMONWEALTH
V.

DARRELL JONES

 

OPPOSITION TO
THE MOTION FOR A NEW TRIAL

 

nu-

INTRODUCTION

The Commonwealth hereby opposes the defendant?s latest Motion for a
New Trial. It is now almost thirty years after the defendant?s trial and conviction
for ?rst degree murder. The defendant has already received the extraordinary
plenary review of his conviction pursuant to G.L. c. 278, on his direct
appeal. Commonwealth v. Jones, 407 Mass. 168 (1990). He has also twice
received post-conviction review for claims of ineffective assistance by his trial
counsel, once in 1992 and once in 2000.

The defendant now raises a multiplicity of challenges to his conviction, all
of which could have been raised in earlier proceedings. The defendant would
have the court ignore the fact that the requirement that the defendant raise every
available claim at the ?rst opportunity applies with particular strength to cases
that have been given Supreme Judicial Court?s extraordinarily complete review

pursuant to CL. c. 278, 33E. Commonwealth v. Smith, 460 Mass. 318, 319-

320 n.l (20] 1). However, a trial judge cannot properly grant a new trial
without considering the legal signi?cance of his failure to raise his claims earlier.
Commonwealth v. LaFave, 430 Mass. 169, 173 (1999). Here despite the
extraordinary number of his claims, the defendant has not shown that his case
presents ?the very rare situation? where relief is warranted on claims that could
have been raised earlier. m, at 320.

TRIAL EVIDENCE

The jury could rely on the following evidence supporting the defendant?s
conviction.

At approximately 10:00 PM on November I985, the victim; Guillermo
Rodrigues, also known as POW, was shot and killed halfway toward the rear of
the parking lot at D?Angelo?s sandwich shop on Montello Street in Brockton,
MA. (Tr. II, 45, The block across the street contained an auto body shop
with a fence around it, immediately across the street from D?Angelo?s on the
corner of Ward Street and Montello Street. (Def. Memo. 47; Tr. 38; A. 114).
Pete and Mary?s bar was next to the auto body shop and it was on the comer of
Montello Street and Franklin Street. (Def. Memo. 47; Tr. 38; A. 114, 443).
Pete and Mary?s had both a front and a rear door and both were used by

customers. (Tr. I, 59, 79?81; V, 79). At the beginning of the trial, the jury took a

 

The trial transcript will be cited by volume and page as (Tr. The

Commonwealth will follow the pagination of the defendant?s appendices filed
with his motion and cite the content of the ?rst volume as (A. and the second
volume as (Aff. The Commonwealth?s Appendix will be cited as (Com.

App. 



view of the area around D?Angelo's and Pete and Mary?s and of the inside of the
bar. (Tr. I, 56-61).

It was undisputed that the victim was inside Pete and Mary?s earlier in the
evening before the shooting. (Tr. II, 41; 104, 123; V, 76, 97). It was also
undiSputed that the defendant, who was also known as Diamond, was in Pete and
Mary?s before the shooting. (Tr. 104, 121; V, 87, 106). Bridget Struthers
testi?ed that at one point she left Pete and Mary?s, walked across the street to
D?Angelo?s, bought a sub for herself and then returned to the bar. (Tr. II, 124-
125). She then talked to the defendant in the bar and offered to buy him a sub in
exchange for some ?joints.? (Tr. 125). They left Pete and Mary?s together
and went across the street to D?Angelo?s where she bought him a sub. (Tr. 111,
126-127). The defendant then went right back to Pete and Mary?s. (Tr. 128).
Further the defendant admitted to the police that he had been in Pete and Mary?s
that night and that his friend went across the street to buy him a sub. (Tr. 68).
However, he claimed he never left the bar prior to the shooting. Instead he just
waited in the doorway for her to bring the sub back to him. (Tr. 63).

Denise Perkins (later Denis Jones) and Paul Jones were parked in their car
in the D?Angelo?s parking lot. (Tr. 7-9, 43-44). They saw a woman go into
D?Angelo?s, buy a sub and then go toward Pete and Mary?s after she came back
out. (Tr. 7-10, 44-45). Shortly thereafter, she came back from Pete and
Mary?s across the street in the company of a man. (Tr. 10). After they went
into D?Angelo?s, the man went back across the street to Pete and Mary?s. (Tr. 

11, 46-48).

Later, Denise saw the same man cross the street again from Pete and
Mary?s but this time he was with the victim and pushing him along (1r. 12)
Paul Jones also saw the victim and a man come across from the bar but he was not
one hundred percent sure it was the same man. (Tr. 49-50). The second man
was pushing the victim. (Tr. 12, 50). Then he shot the victim in the parking
lot. (Tr. 13, 50-51). Denise ?could tell he was the same guy that went in with
the girl and came out with the girl.? (Tr. 12).

Denise subsequently looked at an array of six to ten photographs of young
men of similar race and build. (Tr. 111, 22-23; IV, 55). She testi?ed she narrowed
the photos down to four but favored one. (Tr. II, 23). Detective LaGarde testi?ed
she picked out the defendant?s photograph but said she was not one hundred
percent sure. (Tr. IV, 56-57). A few days later, Denise looked at a larger group
of photographs and picked out a photograph of the defendant as looking ?almost
exactly? like the man who shot the victim. (Tr. II, 23-24; IV, 58-59). She told
Detective LaGarde that she had originally been reluctant to pick out the photo
because she was afraid of retaliation. (Tr. IV, 59). In court, she picked out the
defendant as being similar to the man who shot the victim, but she could not be
one hundred percent sure. (Tr. 111, 29-30).

Paul Jones separately looked at a set of ten to ?fteen photographs. (Tr. 
57; IV, 61). He went through the photographs saying it was not this one, but
could be this one. (Tr. 57). Detective LaGarde said he picked out three
photographs and said he felt the man who shot the victim was among the three.

(Tr. IV, 61). Within the next two days, Paul went to the police station and again

looked at photographs. (Tr. Ill, 58; IV, 62). Paul testi?ed he believed he picked
out a photograph. (Tr. 59). He was not one hundred percent sure but he
believed it was the same man who was with the girl in D?Angelo?s and he thought
that he was the same person who shot the victim. (Tr. 60-61). Detective
LaGarde testi?ed Paul selected three photographs on each occasion and the
defendant?s photo was one of those three both times. (Tr. IV, 61, 63-64).

There was another group of ?ve people who were in a car parked in the
D?Angelo?s parking lot when the victim was shot. The group included Terri 
Starks, Walter (BoBo) Watson, Edna Levine, Lisa Pina, and Alfred Meron. (Tr.
II, 41; [11, 74-75, 94). Terri Starks testi?ed she saw two men that she had
seen inside Pete and Mary?s earlier, crossing the street from the corner on
Montello Street where the fence is. (Tr. II, 42, 44). It was the corner on the same
street up which the perpetrator ?ed after the shooting. (Tr. II, 46). She said it
was Franklin Street, but she was not sure of the name of the street. (Tr. II, 42,
44).

The only fence across the street from D?Angelo?s was outside the auto
body shop on the corner of Ward Street and Montello Street (A. 1 14; Def. Memo.
47), as thejury would have seen during the view. Denise and Paul Jones both
described how they chased the man who shot the victim up Ward Street before he
cut across toward Franklin Street through a parking lot behind the auto body shop.
(Tr. 15, 52).

As they crossed the street and walked into the D?Angelo?s parking lot,

Terri saw that the man with the victim had a gun. (Tr. II, 43-45). Someone

tn the car identified the man holding the gun as Diamond. (Tr. II, 45; 109).2
The man identi?ed as Diamond shot the victim when they were about halfway
toward the rear of D?Angelo?s parking lot. (Tr. II, 45-46).

Days later, Terri met with Detective Smith at the police station. (Tr.
II, 47). She looked at between seven and twelve photographs of young black
men. (Tr. II, 47-48; V, 25). She picked the defendant?s photograph as the man
who shot the victim. (Tr. II, 48; V, 26, 29-30).

8030 Watson testi?ed that someone in the car said they saw two guys
arguing and that Darrell Jones shot someone. (Tr. 95-96). However, he
claimed he did not really see anything and, after the shooting, BoBojust left,
rather than ?get killed or something like that.? (Tr. 95-98). He did see a man
running up Ward Street after the shooting. (Tr. 98).

Edna Levine claimed she did not see the two men at all. (Tr. 109-
110). At trial, she said she picked out a picture out of the ones Detective Smith
later showed her as showing the defendant, not as a picture of the person who shot
the victim. (Tr. 113?114). Detective Smith testi?ed that she previously said
she saw the two men cross the street, saw the shooting and saw the shooter up
Ward Street. (Tr. V, 16). She picked out the defendant?s photograph as showing
the man she saw running away from the scene. (Tr. V, 16).

Lisa Pina testi?ed she saw two men crossing Montello Street but she had
not seen where they came from earlier. (Tr. 76). After they passed behind the

car she was in, she saw the victim fall to the ground. (Tr. 77-78). Someone in

 

3 Terri testi?ed Edna Levine said it (Tr. II, 45) and Edna testi?ed
Terri said it. (Tr. 109).

the car said Diamond?s name. (Tr. Ill, 79). She told 8030 to leave immediately
after the shooting, rather than run into D'Angelo?s to call an ambulance. (Tr. Ill,
80). She claimed that when Detective Smith showed her some pictures a day or
two later, shejust picked out a picture at random. It happened to be the
defendant?s picture. (Tr. 83-84). Detective Smith testi?ed that he asked her
to pick out the man who shot the victim. (Tr. V, 9). She reluctantly selected the
defendant?s photograph. (Tr. V, 10).

After the shooting, the man identi?ed as the defendant crossed Montello
Street, ran up Ward Street, through a parking lot behind the auto body shOp
toward Franklin Street, and went over a fence by the cable vision building. (Tr.
15, 52). Denise and Paul Jones lost track of him at that point. (Tr. 15,
52). After that, they went back to D?Angelo?s and called for an ambulance. (Tr.
II, 16, 52-53).

Bob Kanicholas owned the bar, The Colonial Spa, which was up Franklin
Street from Pete and Mary?s and Montello Street. (Tr. IV, 44-45). That night at
approximately 10:30 pm. he noticed a black guy in the bar. (Tr. IV, 45).
Monday nights usually had regulars in the bar and there were ?not many black
guys in the bar as a rule.? (Tr. IV, 46). The man did not order a drink and the
next time the owner turned around the man was gone. (Tr. IV, 46). The next
morning the owner found a gun in the trash container in the men?s room. (Tr. IV,
47). That same gun had been used to kill the victim. (Tr. IV, 93, 97).

There was approximately 200 yards between The Colonial Spa and Pete

and Mary?s. (Tr. II, 28; V, 24). The defendant was amongst the people outside of

Pete and Mary?s when officer Shanks left the immediate scene of the shooting and
went across the street to the bar. (Tr. ll, 1 19).


The defendant was convicted of ?rst degree murder in 1986. (Tr. VI, 99).
His conviction was af?rmed on direct appeal a?er an extraordinarily plenary
review by the Supreme Judicial Court pursuant to G.L. c. 278, 33E, in which the
Supreme Judicial Court reviewed the entire trial record for any indication of a
miscarriage of justice, whether or not based on issues raised by the defendant.
Commonwealth v. Jones, 407 Mass. 168 (1990), Commonwealth v. Smith, 460
Mass. 318, 319-320 (201 1). After such a review, trial courtjudges and the
litigants are entitled to assume that the Supreme Judicial Court took its obligation
seriously and considered any issues that were apparent on the record, whether or
not they were mentioned in the ultimate decision. m, at 320, n. 1.

The defendant has also previously ?led two motions for a new trial that
were resolved against him. In 1992 the defendant ?led his ?rst motion for new
trial, claiming that he had received ineffective assistance of counsel. (A, 249).
The motion was denied and the Single Justice of the Supreme Judicial Court
denied the defendant leave to appeal as no ?new and substantial issue? had been
raised. (A. 265-266).

The defendant ?led his second motion for new trial, again claiming he was
provided ineffective assistance of counsel in 2000. (Com. App. 1). The motion
was denied in August of 2000, and the Single Justice again denied leave to appeal

as the motion did not ?satisfy the ?new and substantial? standard.? (A. 264-267).

In ?rst degree murder cases subject to G.L. 178, 33E in particular. a
defendant is required to all his available claims at the earliest possible time.
Commonwealth v. Gunter, 459 Mass. 480, 487 (2011). In the view of the
Supreme Judicial Court, it is entirely appropriate for a judge hearing a motion for
a new trial in a case that has already received plenary review to summarily
reject any claims that could have been raised earlier. m, at 320.
?Indeed, that is a typical approach.? E. The same reasoning applies to issues that
could have been made in prior motions for a new trial. Mains v. Commonwealth,
433 Mass. 30, 34 (2000) (same waiver principles under apply to claims that
could have been raised in prior motion for a new trial). Commonwealth v.
M, 433 Mass. 539, 547-548 (2001) (waived by failure to raise claim in
previous pro se motion for a new trial).

The defendant would have this court treat the issues he is currently
attempting to raise as if he had not already received a plenary of the entire trial
record and consideration of his two prior claims of ineffective assistance.
(Defendant?s Memorandum, 35-36). However, a trial judge cannot properly grant
a motion for a new trial without considering the legal consequences of a
defendant?s failure to previously raise an issue in earlier proceedings.
Commonwealth v. LaFave, 430 Mass. 169, 173 (1999).

Video Tape of Terri Sparks Interview.

At the time of trial there was no question that there was something wrong

with the tape of Terri Stark?s video in that part of the interview was missing

and had been replaced with a segment from the Phil Silvers television program.

The defendant requested a hearing before the video tape was introduced at trial.
(Tr. ll, 51). During the voir dire, Detective Smith described how a malfunction
occurred when the tape was played for the defendant?s counsel and a portion of
the recording was replaced by portions of a television program. (Tr. IV, 16-17).
Defendant?s counsel raised some questions about how the mal?inction occurred
but then said ?It?s probably immaterial.? (Tr. IV, 17-18). The full tape was
played in court (making the problem with the tape obvious to thejury). (Tr. IV,
30-31). The defendant did not raise any ?lrther issue concerning the missing
portion of the taped interview (Tr. IV, 31-47) and no objection to thejudge?s
determination that the tape was, except for the missing portion, a fair and accurate
representation of what occurred. (Tr. IV, 33-34).

The defendant now attempts to avoid any waiver of any claims about the
problem with the tape by essentially claiming he could not have raised a claim
earlier because currently available techniques for forensic evaluation of tapes
were not previously available. (Def. Memo. 1, 36, 40-41). He claims that
forensic ?examination of questioned video recording for authenticity was not well
reported until the late 1990?s, with one of the ?rst known peer reviewed
publications on the subject? published in 1999. (Def. Memo. 40; quoting af?davit
of Jeff Spivak, 81).

However, as with the analysis under evidence is not ?newly
discovered? or ?newly available? when it could have been presented as part of an
earlier motion for a new trial. Commonwealth v. Evans, 439 Mass. 184, 203

(2003) quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The

10

defendant?s most recent prior motion for a new trial was ?led in April 
and denied in the trail court in August of 2000. (Com. App. 1). The denial
became ?nal with the denial of the defendant?s gatekeeper petition for leave
to appeal in July of 2002. (A. 264-267). By the defendant?s own accounting the
tape of forensic examination he is claiming as ?newly discovered? was available
in the late 1990?s. Therefore it was available prior to the defendant?s previous
motion in 2000.

Further, the Commonwealth?s notes in its trial ?le indicate that the
defendant?s prior post?conviction counsel, Attorney Joseph Krowski, was given a
copy of the tape of Terri Starks interview on January 5, 1999, prior to ?ling
his motion for a new trial in 2000. (Com. App. 43, 44). There is therefore every
indication that the defendant?s counsel at the time considered raising an issue
conceming the tape (at a time when the more recent techniques alleged by the
defendant were available) but declined to do so. For this reason alone, the
material now proffered by the defendant does not legally qualify as ?newly
discovered (or available) evidence.?

In addition, even ?'orn the perspective of the time of trial, the defendant
has not shown how any of the more recently developed techniques were necessary
to raise an issue concerning how the error occurred. He makes no attempt to
show what kind of analysis could have been done at the time of trial. The
defendant?s proferred experts just broadly state that more recent developments
have made it possible to do more to detect tampering or editing than in the past.

(Aff. l4; Aff. 81). They make no effort to indicate why the use of any such more

1]

recently developed techniques was necessary to effectively raise questions about
Detective Smith's explanation about how the obvious mistake in the tape
occurred. The defendant?s proffer is insuf?cient to establish that there was no
available means for challenging Detective Smith?s explanation at the time of trial.
Commonwealth v. Caruso, 85 Mass. App. Ct. 24, 29-31 (2014) (surveillance tape
analysis).

In fact, one of the main points proffered by the defendant?s expert Marissa
Dery is thatjust before the television program appears on the tape, the ?Play?
prompt appears on the display. In the view of Ms. Dery ?If, as Smith testi?ed, the
interruption occurred due to Smith inadvertently pressing the record button rather
than the play button on the VCR, I would instead expect to see a continuous
sequence of video without any appearance of a blue screen or prompts such as the
?Play? (Aff. 10). This mode of analysis did not depend on any recently
developed forensic techniques, but rather on common sense and general
familiarity with VCR recordings and operations. If accurate, it was fully available
at the time of trial as a means of raising questions concerning Detective Smith?s

description of how the anomaly occurred. Caruso supra at 31 (post-trial

 

development of alternative method of making same evidentiary point that was
available at trial does not create ?newly discovered evidence.?

The defendant?s trial counsel did not refrain from questioning how the
anomaly on the tape occurred because of any lack of forensic techniques. He did
so because in his view the missing portion of the interview was immaterial. ?It?s

probably immaterial.? (Tr. IV, 18). Counsel?s assessment was correct.

The defendant claims that it is inferable that during the missing portion of
the tape, Terri Starks stated that she saw the victim and the shooter crossing
Montello Street from the comer outside the auto body shop and that it was critical
to the Commonwealth?s theory of the case that the victim and the shooter were
seen leaving Pete and Mary?s through the door facing onto Montello Street. (Def.
Memo. 46-48). However, the Commonwealth?s theory did not at all depend on
testimony from Terri Starks, or anyone else, that the victim and the shooter
were seen leaving Pete and Mary?s through the Montello Street door. Rather, the
Commonwealth relied on the inference that they left the bar together based on the
evidence that they had both been seen spending time in the bar earlier that night
and that the shooter/defendant had been identi?ed as the person who hadjust
received a sandwich from Bridgette Struthers at D?Angelo?s and had gone back
across the street in the direction of the bar. After all, Terri Starks testi?ed at
trial that she ?rst saw the victim and the defendant ?as they hit the corner where
the fence is.? (Tr. II, 44). The fence, as thejury saw on the view, was outside the
auto body shop and the corner of Montello Street and Ward Street. (Def. Memo.
47, ?gure 3). Denise ?rst saw the two men ?about in the middle of the other side
of the building.? (Tr. 28). Paul Jones ?rst saw the two together ?[w]hen they
reached the parking lot of D?Angelo?s.? (Tr. 50). Lisa Pina saw two men
crossing Montello Street but did not see where they came from. (Tr. 76).
Edna Levine testi?ed she was not even sure she saw the two men crossing
Montello Street. (Tr. 109). 3030 Watson said he did not pay any attention to

anyone crossing the street. (Tr. 95?96).

For the prosecution?s theory that it was inferable that the two men left the
bar together, it was immaterial whether they left through the door onto Montello
Street or used the other door of the bar and walked around the back of the
buildings before crossing Montello Street. (Def. Memo. 47, ?gure 2) (as would
be more consistent with the defendant forcing the victim forward at gun point and
concealing his efforts off the main street).

The defendant asserts that the videotape could have been excluded if more
of an issue had been raised about the missing portion of the interview. (Def.
Memo. 37, 43). However, Terri Starks testi?ed at trial and described the
same events she described during the interview, including when she ?rst saw the
victim and the shooter crossing Montello Street. (Tr. II, 43). She also described
how Detective Smith showed her a number of photographs and she picked out one
as showing the person who shot the victim. (Tr. II, 48). Ms. Starks testimony on
these points was not challenged on cross-examination. (Tr. II, 50-51). In
addition, although the defendant?s counsel considered recalling Ms. Starks to the
stand after the videotape, he ultimately chose not to do so. (Tr. II, 51-53; V, 119-
120; VI, 2, 4-5).

Detective Smith also testi?ed about how Ms. Starks selected the
defendant?s photograph as the shooter, out of a group of photographs he showed
her. (Tr. V, 25-27, 29?30). The only points raised in cross-examination about the
interview concerned Ms. Starks being under arrest at the time (Tr. V, 48-51) and
the source of the defendant?s picture that was shown to her. (Tr. V, 56, 62-63).

In these circumstances, where the tape wasjust cumulative of essentially

unchallenged testimony at trial, there IS no reason to think that the exclusion of
the tape would have made any material differences to the verdict. See, ?aps,
541313 at 190-191 (erroneous admission of hearsay identifying defendant was not
prejudicial where cumulative of trial testimony).

Yet when a defendant relies on ?newly discovered? or ?newly available?
evidence as supporting a motion for a new trial, he must establish not only that the
evidence was not reasonably available for earlier proceedings, but also that there
is a substantial risk that the jury would have reached a different conclusion had
the ?new? evidence been available at trial. Lg. at 203. The defendant has failed to
meet that burden, whether or not Detective Smith was mistaken on how the
problem with the tape occurred. The record shows no reason to think the missing
portion of the tape addressed anything material to the prosecution?s theory that
was not presented at trial and the remaining portion of the tape was just
cumulative of other trial testimony.

The defendant has proffered opinions from two experts who opined that it
was at least unlikely that the missing portion of the tape was lost in the manner
described by Detective Smith. (Aff. 14; Aff. 84). They both also concluded that
the loss of a portion of the tape was consistent with something that happened
during c0pying the tape. (Aff. 14; Aff. 84). From this the defendant leaps to the
conclusion that the police must have deliberately edited the tape to remove a
portion of the interview. (Def. Memo. 5, 45-46, 48). However, the police had no
reason or motive for doing so where in context it is apparent that the missing

portion of the interview addressed when Ms. Sparks ?rst saw the victim and the

shooter together and, as would be expected, Ms. Sparks testimony at trial was
consistent with Detective LaGarde?s report (the basis for the defendant?s
attempted reconstruction), and with the other witnesses. The exact location of
when Ms. Starks ?rst saw the two men was not at all critical to the prosecution?s
theory of the case or to the defendant?s identi?cation as the man who shot the
victim. Regardless of how the anomaly on the tape occurred, it is not plausible
that Detective Smith, or any other police officer, deliberately altered the tape
where there was no reason to think the missing portion of the interview addressed
anything that was critical to the identi?cation of the defendant as the murderer
and Ms. Starks was fully available to testify as to what actually took place during

the interview.3

Alleged Brady Violation.

The defendant also claims that it is inferable that the prosecution did not
turn over Detective LaGarde?s report prior to or during the trial. (Def. Memo. 54-
58). He admits that he cannot rely on trial counsel?s ?le to show that counsel did
not have the report in his possession prior to trial, ?Trial counsel, Kenneth Elias is

deceased, and efforts to obtain any documents that he may have retained

 

3 The defendant?s counsel misconstrues Dery?s measurements concerning

the length of the missing portion of the interview. (Def. Memo. 46). Ms. Dery
indicated that she measured the actual length of the ?recorded interview content"
on the tape (Aff. 12) i.e. the length of the interview without the missing portion or
the segment ?om the television program, not the total length of all the recording
on the tape. The measurements then assmne the general accuracy to the minute of
Detective Smith?s amounted starting and ending times (even though the detective
consulted two separate clocks for the starting time). (Aff. 11). Ms. Dery then
concludes that the missing portion of the interview was between eighteen seconds
and two minutes and sixteen seconds long. (Aff. 13). That conclusion is
consistent with Detective Smith?s trial testimony that the tape mistakenly included
about twenty seconds of a television program. (Tr. IV, 16-17; V, 36).

16

regarding this case have been unsuccessful." (Def. Memo. 54). He nevertheless
claims that the trial record supports the conclusion that the report was not
available to defense counsel. (Def. Memo. 56-58).

However, the record actually supports the conclusion that Detective
LaGarde had the report with him at trial and that the defendant?s counsel was
aware of its contents. After the detective testi?ed that Denise Perkins told him
that she was reluctant to make an identi?cation because she was afraid of
retaliation, the defendant?s counsel asked him ?And you put that in your report, of
course?? (Tr. IV, 76). When the detective said he did not remember, defense
counsel asked him to look at his report that he had with him. (Tr. IV, 76).

The detective did so and confirmed that it was not mentioned in the report.
(Tr. IV, 77). Indeed, an examination of Detective LaGarde?s report does indeed
con?rm that no statement about fear of retaliation or any second visit with Denise
Perkins or Paul Jones. (A. 29-37). The detective testi?ed that he interviewed the
defendant who denied ever leaving the bar that night and said he waited in the
doorway while his friend went across the street to buy him a sub. (Tr. IV, 67-68).
On cross-examination, defense counsel asked Detective LaGarde about notes he
made the same day as his interview of the defendant. (Tr. IV, 78). Defense
counsel had Detective LaGarde admit that those virtually contemporaneous notes
did not mention any question to the defendant about whether he left the bar to get
a sub. (Tr. W, 78-79). As the defendant points out, the detective?s notes that

were admitted as Exhibit 17 were not the same as his subsequently more

17

comprehensive report that addresses far more than the detectives interview of the
defendant. (Def. Memo. 56 n. -l8; Tr. IV, 88-89; A. 29-37).

The defense counsel?s point at trial was that the detective did not write
down the defendant?s alleged statement in his virtually contemporaneous notes
even though he knew at the time that the defendant?s having left the bar with a
girl to get a sub was important because of the statements from Denise Perkins and
Paul Jones. (Tr. IV, 79, 84-85). Despite the defendant?s current suggestion to the
contrary (Def. Memo. 56-57), that point remained regardless of whether the
statement was described in a subsequently written report or before the Grand Jury.
Further, no reasonable inference can be drawn from the fact that Detective
LaGarde did not inappropriately volunteer a non-responsive answer that while he
did not describe the statement in his notes made on the day of the interview, he
did describe it in his subsequently written more comprehensive report. (Def.
Memo. 57; Tr. IV, 84-85; A. 34). Similarly, the fact that the prosecutor chose to
counter the suggestion of recent fabrication by presenting a prior consistent
statement by the detective before the grand jury does not reasonably support the
conclusion that the prosecutor must not have been aware of the existence of
Detective LaGarde?s report. (Tr. IV, 82-83, Def. Memo. 57). In fact, the notes
themselves indicated that the defendant said he never left the bar that evening.

(Tr. Iv, 78, 

 

4 The defendant attempts to make much of the fact that, in an apparent

attempt to avoid having to establish a prima facie case for relief before being
entitled to post-conviction discovery per Mass. R. Crim. P. defense
attorneys presented a variety of public records requests to the District Attorney?s
Of?ce. (Def. Memo. 54-56). In making such public records requests the defense

18

The defendant points out that during the trial, the defendant?s counsel
claimed that he did not have several other documents from the investigation.
(Def. Memo. 54, n,44). These included a report by Sergeant Colocousis, the
autopsy report, the ballistics report, (Tr. II, 66) and a sketch of the perpetrator.
(Tr. 70). However, the defendant?s counsel disavowed any claim that the
materials had not been made available to him. (Tr. II, 66). He acknowledged,
that the prosecutor insisted that he had provided ?a packet of pretrial information?
to him. (Tr. II, 66). The prosecutor also asserted he had provided the sketch to
defense counsel. (Tr. 70).

The defendant?s counsel also said that he intended to look at the

information he alleged he was missing during the morning recess. (Tr. II, 66).

The next day, after defense counsel suggested he did not have a copy of the

 

attorneys were acting as individual private citizens outside of the criminal case.
For the public records request, the fact that the requestor has an interest is a
related criminal proceeding neither detracts nor lends support to the request.
Bouga_s_v. Chief of Police of Lexington. 371 Mass. 59, 64 (I976). The degree to
which the requester may be entitled to access to the requested material as
discovery in the criminal proceeding is irrelevant to the public records request.
?It is sufficient to say that pre?trial [or post-conviction] discovery is not available
in criminal cases under G.L. c. 66, 10, and, that the position of the
[requestor]under the later statute is not enhanced by the lodging of criminal
charges against them.? 1g. In fact, under the public records law, it is
inappropriate for the custodian of the record to inquire, or to tailor the response to
the purpose for the records request. (90 CMR 3105(5).

The District Attorney?s of?ce responded to these public records request as
it would to requests from any other citizen, redacting those portions of the records
that could violate the Criminal Offender Record Information Act if publicly
disclosed and declining to make physical evidence in the case that it might have
(exhibits) publicly available in a manner that could violate the requirement under
G.L. c. 278A, 16-17, to preserve evidence in a criminal case with a conviction
in a pristine unadulterated fashion. The propriety of the requests and responses
under the Public Records law are fundamentally irrelevant to these proceedings in
the criminal case.

19

sketch, the judge asked whether it was included "in that group yesterday.? r_ Tr
Ill, 71). The defendant counsel said he would look. (Tr. Ill, 71). No further
issue was raised about the sketch. No issue on direct appeal or in the two prior
post?conviction motions claiming ineffective assistance was raised by any of the
defendant?s new lawyers concerning any failure to provide reports to trial counsel
or about counsel?s alleged lack of familiarity with any reports or documents.

The only ?packet? of investigatory material contained in the prosecution
trial ?le is the same ?packet? of documents bound together that the defendant
more recently received from the Brockton Police Department. (A. 1-2, 8-88). It
contains Detective LaGarde?s report to Chief Sproules as Document 5. (A. 28-
36). The same document is presented in Exhibit B, and described as found
outside of the documents that were bound together. (A. 2, 89-97). Pretrial notes
contained in the prosecution trial ?le also indicate that Attorney Elias had viewed
the videotape of the Terri Starks interview and that the trial prosecutor
(Kevin Ctmningham who has long since left the of?ce and become a District
Court Judge) ?Provided packet of police reports to Elias.? (Com. App. 45).

The only ?packet? of pretrial investigatory material appears to be the
?packet? found in both the police ?le and the prosecution ?le. It includes
Detective LaGarde?s report and by all indications the packet was provided to trial

counsel both before and during the trial. The defendant has not met his burden of

EU

showing LaGarde's report had not been provided to the defense at the time of
trial.5

To be entitled to any relief based on an alleged violation of 
Mmland, 373 US. 83 (1999) through a failure to provide exculpatory
information, a defendant has the burden of establishing both that the prosecution
did not in fact provide the information at trial and that it tended to exculpate him.
Commonwealth v. MacHudson, 446 Mass. 709, 727 (2006). To be ?exculpatory?
for My purposes the defendant had to establish that information in the report
tended to negate his guilt or supported his innocence. Commonwealth v. Law,
448 Mass. 585, 595 (2007). Here the defendant has not met his burden on either
requirement. He has not established that Detective LaGarde?s report had not been
provided to the defendant?s counsel at the time of trial. The defendant has failed
to meet his burden on the second prong because as previously indicated, where
exactly across the street from D?Angelo?s Terri Starks ?rst saw the victim
with the perpetrator was immaterial to the defendant?s guilt or innocence.
Claims not based on ?newly discovered or available evidence.?

All the rest of the defendant?s claims are either based on the face of the
record and therefore before the SJC on direct appeal or were available to be raised

on a claim of ineffective assistance on direct appeal or in the prior two motions

 

5 It should be noted that at the time of trial in 1986 Mass. R. Crim. P. 14 did
not include all police reports as a part of the automatic discovery that had to be
provide prior to trial. Mass. R. Crim. P. 14(a) (Applicable prior to September 7,
2004). Reporters Notes to Mass. R. Crim. P. l4(a)(1)(A)(vii)(2004). While as
the defendant now points out the defendant?s trial attorney ?led motions for
discovery (Def. Memo. 54), there is nothing in the docket indicating that the
motions were allowed. (A. 214-216).

21

for a new trial. This court is entitled to assume the pomts were considered and
rejected previously by the Supreme Judicial Court and the defendant?s prior three
post-conviction counsel, none of whom were trial counsel. Smith, supra at 320,
n.1. By now, some thirty years after the trial and after repeated post-conviction
review, these previously available claims should just be summarily rejected, as is
a typical approach. After all, it should be a rare situation where relief is
warranted on a previously available claim after a plenary review pursuant to 
and two prior motions for a new trial. Mass. R. Crim. P. 30(c)(2)(any
grounds not raised in original motion for new trial are normally deemed waived).
Alleged conflict of interest.

In particular, the defendant claims that he received ineffective assistance
because his trial represented, or had ties to the representation of, Detective Smith
and LaGarde in other matters and therefore was laboring under a con?ict of
interest. The defendant made the same claim in his second motion for a new trial
and it was denied on August I, 2000. (A. 264). The denial of that claim became
?nal and unreviewable when the Single Justice denied leave for any further
appellate review on July 23, 2002. (A. 264?267). As the Single Justice stated:

Finally, the defendant asserts that he was denied the effective assistance of

counsel because his attorney previously represented two Brockton police

detectives and the mother of one adversarial witness who testi?ed at trial.

Counsel disclosed the con?ict to the court on the second day of trial. The

judge held a colloquy with the defendant outside the presence of thejury.

The judge closely questioned the defendant with reSpect to the con?ict and

directly asked the defendant whether he wanted to change lawyers. The

defendant emphatically declined any thought of a change in trial counsel.

The Commonwealth presents unchallenged portions of the transcript in

which the defendant states, will keep my same lawyer. I?m not

changing. I?m not even considering that? and that he was ?more than?
satis?ed with counsel. The defendant could have raised this issue in his

direct appeal and also in his ?rst motion for new trial and ?rst gatekeeper
petition. See. Commonwealth v. Watkins, 433 Mass. 539. supra.

(A. 266).

The facts and the law are the same today as they were at the time of his
prior post-conviction proceedings. The defendant raises no new facts that were
not fully available with minimal inquiry earlier. The alleged con?ict of interest
has already been decided with ?nality and the defendant is precluded by direct
estoppel from raising the issue again. Commonwealth v. Rodriguez. 443 Mass.
707, 709-711 (2005). ?Where an issue of fact or law is actually litigated and
determined by a valid and ?nal judgment, the determination is conclusive in a
subsequent action between the parties whether on the same or different claim.?
E. at 710, quoting Restatement (second) of Judgments 27 (1982).

Further, the defendant?s examples of alleged prejudicial failure to conduct
thorough cross-examination, supposedly due to the con?ict of interest (Def.
Memo. 67-69), do not support his claim.

Failure to cross-examine further about missing portion of tape

As previously indicated, trial counsel correctly viewed the missing portion
of the interview tape as immaterial.

Failure to attempt to impeach Detective Smith with video showing stack of photos
new

The video spoke for itself without giving Detective Smith the opportunity
to explain it and the fact that the stack of photographs was on the table does not
suggest the photos were shown to Terri Starks earlier. Although Attorney

Barter?s description of what Ms. Starks told him is hearsay and should not be

23

considered at alln (Aff. 208?216). it is noteworthy that there is no claim she was
shown the photograph prior to the identi?cation procedure shown on the tape.
(Aff. 2l4).

Failure to cross?examination Detective Smith that at one point Stephen Betts was
mentioned as a possible suspect.

The defendant faults his trial counsel for not asking Detective Smith about
the fact that Steven Betts had been mentioned by some undisclosed sources as the
possible perpetrator, on the idea that the questioning would support a
Commonwealth v. Bowden, 379 Mass. 472, 483?486 (2011), type defense based
on an alleged lack of thorough investigation. (Def. Memo. 68; A. 54). However,
any such cross-examination would have likely lead to the information that the
police did indeed look into the possibility that Steven Betts was the perpetrator.
They went to talk to his ex?girlfn?end?s apartment and found the defendant?s
younger brother there. (A. 54). The ex-girlfriend had no apparent direct
knowledge of anything about the murder. The police also questioned Bridgette
Struthers (A. 23-24) and Mike Brown (A. 44) and they said they had not seen
Betts that night in Pete and Mary?s, in the area, or with the victim. The inquiry
would have also likely led to the revelation that the only names generally
mentioned as possible suspects were the defendant and Betts. The defendant has
not even established that the inquiry would have been allowed in view of its

apparent week probative value and the danger of diverting the jury?s attention to

 

6 Commonwealth v. Goodreau, 442 Mass. 341, 353-354 (2004) (hearsay in
an af?davit from counsel is properly ignored by the motionjudge).

24

collateral matters. Commonwealth v. Silva-Santiago. 453 Mass. 782. 803-805
(2009).

Failure to cross-examine Detective Smith about a report saying that the name
Diamond ?rst came from a con?dential informant and about the fact that
witnesses attributed statement at scene about Diamond to Starks.

The only report discussing information from a con?dential informant is by
Sergeant Colocousis and it says ?Of?cer James Silva stated to me as I was
preparing this report that he heard from an informant that the party responsible for
the incident was ?Diamond?.? (A. 19). An additional identi?cation of the
defendant as the perpetrator would not have helped the defense.

As for the statement identifying ?Diamond? at the scene, Terri 
Starks testi?ed that Edna Levine said it. (Tr. II, 45). Edna denied saying it and
testi?ed it was Terri. (Tr. 109, 117-118). Lisa Pina testi?ed that it was said
by either Edna or Terri. (Tr. 79). BoBo Watson testi?ed that ?they? said it
was Darrel Jones. (Tr. 96). The defendant?s cross-examined all of these
witnesses about the statement. (Tr. II, 50; 84, 102, 115-116). In these
circumstances ?thher cross-examination of Detective Smith on who made the
statement would not have added anything to the defense.

Failure to confront Sergeant Colocousis with alleged later inconsistent statements
by Denis Perkins and Paul Jones before the Grand Jam

On cross-examination, Sergeant Colocousis testi?ed that the ?rst
description of the perpetrator he received indicated that he was ?approximately in

the area of six feet tall.? (Tr. II, 94-95). The Sergeant could not have been

impeached with later allegedly inconsistent statement by Perkins and Jones before
the Grand Jury (of which the Sergeant had no apparent personal knowledge).

Failure to cross-examine Sergeant Colocousis about the fact that Brigette

Struthers called the defendant ?Deke? while the Sergeant?s report continued to

 

call him ?Diamond.?

The defendant had nothing to gain from this proposed line of cross-
examination. The Sergeant?s report showed that when questioned about the
nickname, Struthers said call him ?Deke.? They call him ?Diamond Deke.??
(A. 23). At trial, Struthers testi?ed that the defendant?s nickname was
?Diamond.? (Tr. 121).

Failure to cross-examine Sergeant Colocousis about a report by Of?cer Shanks

(according to the defense prepared two weeks before trial) indicating the Sergeant

was present when the of?cers were approached by the defendant outside Pete and

Mm?s shortly after the shooting.

Relying on a report by of?cer Shanks which was, according to the
defendant, written two weeks before trial (Com. App. 46) the defendant claims his
counsel should have questioned Sergeant Colocousis about whether he spoke to
the defendant outside of Pete and Mary?s that night but did not recognize him as
particularly matching the descriptions by Paul Jones or Denise Perkins. (Def.
Memo. 68). However, through his cross-examination of Of?cer Shanks, the
defendant?s counsel pursued the far more direct point that the defendant spoke
with Of?cer Shanks outside of Pete and Mary?s in the immediate vicinity of Paul

Jones and Denise Perkins while they were looking for the shooter, yet they failed

Eli

to identify him at that time. (Tr. II. l9?121, 126?128; lli. 19-20. 54. 55-56,bb-
68). ?That trial counsel selected certain avenues of impeachment, and did not
exhaust every conceivable further avenue, does not mean that counsel was
ineffective." Commonwealth v. Horton, 434 Mass. 823, 836 (2001).

Failure to cross?examine Detective Colocousis. Smith and LaGarde about the fact
that none of the witnesses described the shooter as having a ?tail? in the back of
mam

Reports by Sergeant Colocousis indicated that two people who were not
present in the area of Pete and Mary?s on the night of the murder generally
described the defendant as having a piece of hair, a ?tail,? growing down from the
back of his head. This information could not have been presented through the
detectives. The description of the defendant with a ?tail? had no relevancy
whatsoever unless they were true and if proferred through the detectives,
constituted inadmissible hearsay.

Claims of ineffective assistance not based on alleged con?ict of interest.

The defendant next raises additional claims of ineffective assistance that
rely entirely on material that was available at the time of previous post-conviction
proceedings. As previously stated, by now all such belated claims should be
summarily denied.

For the contrary pr0position, the defendant relies strongly on
Commonwealth v. Alcide, 472 Mass. 150 (2015). (Def. Memo. 74, 75, 77, 80).
However, the situation in was a far cry from the circumstances in this case.

The ineffective assistance claim in Alcide was considered as a part of the 

 

plenary review and direct appeal governed by ?33 E. at 150451, 157, 167
n.23. Here, where the claims are based on the trial record or material readily
available for earlier proceedings, the defendant is effectively required to show not
only that the actions of his trial counsel were manifestly unreasonable but, by
missing such allegedly signi?cant and critical defects in trial counsel?s
performance, so were the actions of new counsel and the SJC on direct appeal and
the two other attorneys who previously presented ineffective assistance claims.
The defendant now uses the same factual circumstances that were available to him
at the time of his prior unsuccessful arguments to fashion a new argument he
could have made earlier. ?This he may not do.? Commonwealth v. G_agliardi,
418 Mass. 562, 566 n.2 (1994).

The defendant simply ignores the fact that the obligation to raise available
issues at the earliest supporting has particular application in ?rst degree murder
cases subject to Hejust claims that, despite the fact that the consideration
in we was part of the plenary review on direct appeal, ?the result should be no
different.? (Def. Memo. 75). In ?lrther support of his attempt to have the court
ignore the established law goveming binding waiver, the defendant relies on
Commonwealth v. Brescia, 471 Mass. 381 (2015) for the idea that regardless of
any established law governing the scope of review, in the particular situation, a
judge in the trial court is warranted in granting a new trial whenever the judge

concludesjustice may not have been done. However, in Brescia the made a

 

point of noting that its discussion of the applicable standards in the particular and

unusual circumstances of that case_ was premised on the absence of specific
established standards for the situation presented. M. at 388-389. The SJC did not
suggest that their discussion was intended to override particular established
standards that otherwise applied. Rather, it applied to the ?[s]ituations that are not
encompassed by the more Speci?c standards determined in our case law? (E. at
391) ?in those rare cases not governed by more speci?c standards.? (I_c1. at 391

n.1 The court also made a point of distinguishing cases where arguments had
been waived by not being raised in earlier proceedings. at 389 Sm_ith,
in fact provides a good example of a case where the SJC overturned a trial
judge?s view that the interests of justice made it one of the rare cases where relief
was warranted in a ?rst degree murder case on a claim that could have been raised
earlier. E. at 320.

Effect of subseguent Board of Bar Overseers proceedings.

The defendant claims that the Board of Bar Overseers proceedings against
his trial attorney show that his trial counsel was ineffective. The defendant?s trial
counsel was suspended from the practice of law on October 20, 1987 for matters
related to his actions as the executor and attorney for an estate. (A. 440-442).
That suspension applied retroactively to September 28, 1987. (A. 442). Trial
counsel was under investigation by the Board of Bar Overseers during the
defendant?s trial. (Defendant?s Personal Af?davit, paragraph 6, submitted in

support of the defendant?s second new trial motion. Com. App. 50). Since the

 

7 Unbeknownst to the jury, the defendant suffered a stroke while he was

testifying that did not negate his competency but did affect the nature and
credibility of his presentation. E. at 386-387, 393-394.

29

defendant?s direct appeal was not decided until 1990 (Commonwealth v. Jones,
407 Mass. 168 (1990)), the defendant and his new counsel could have raised the
fact of the suspension in his direct appeal.

The defendant particularly relies on general statements trial counsel made
during proceedings for reinstatement conducted in 1993. (Def. Memo. 76; A.
343, 360-362). The defendant and his counsel at the time were at least generally
aware of the Board of Bar proceedings against trial counsel when they ?led his
second claim of ineffective assistance in 2000, as shown by the defendant?s
personal af?davit submitted in support of that claim. (Corn. App. 50). There is
no reason to think that the material from the 1993 proceedings was not readily
available to the defendant for presentation in support of the motion for new trial in
2000, if the defense thought it was By failing to raise this material
earlier the defendant waived any right to its consideration as support for an
ineffective assistance claim.

In any event, the fact that trial counsel was the subject of Board of Bar
Overseers proceedings or that he was suSpended from the practice of law, is not
enough to show ineffective assistance of the defendant?s trial. Commonwealth v.
McGuire, 421 Mass. 236, 238 (1995). Nor is enough to argue that the Board of
Bar Overseers proceedings demonstrate a general cavalier or neglect?rl attitude
toward the attomey?s responsibilities. Commonwealth v. Thomas. 399 Mass.
165, 169 (1987). To the contrary, the defendant?s claim for relief must rest on
speci?c instances of misconduct concerning his case. I_d. The defendant?s proffer

of trial counsel?s statements concerning his broad general practice made in

30

support ofhis petition for reinstatement, that make no particular reference to the
defendant's case,just are not enough to provide any signi?cant support to an
ineffective assistance claim.8

lnfonnation concerning Miko Brown.

Next the defendant claims trial counsel was ineffective for failing to
present information provided by Miko Brown. (Def. Memo. 77-78). Miko
Brown?s statement to Detective Luciano (A. 44) and her recent af?davit (Aff.
226-227) indicate that she was with the victim at Pete and Mary?s that night. At
one point, they left the bar and, as Miko walked away, the victim crossed the
street to his car in the D?Angelo?s parking lot. (A. 44; Aff. 226-227). There was
no indication of the time when they left the bar or whether the victim drove away
or returned to the bar after walking to his car.

At trial, the testimony of multiple witnesses left no question that the
victim and another man crossed the street from the general area of the bar and
walked through the D?Angelo?s parking lot toward the rear, where the victim was
shot by the other man. There was also no question that it was the victim who was
found lying in the D?Angelo?s parking lot. In these circumstances, there was little
to be gained by presenting Miko Brown?s less than de?nitive testimony to suggest
that all the eyewitnesses who saw the two men togetherjust before the victim got

shot were testifying falsely (or mistakenly) for no apparent reason. Here again,

 

8 The defendant cites to one page of payment request records as indicating

trial counsel only requested payment for thirty seven hours mostly for court
appearances. (Def. Memo. 76-77; A. 484). However, the previous page of the
defendant?s appendix, A. 483, shows requests in the defendant?s case for an
additional 113.5 hours, sixty of which was for work outside the courtroom such as
research and investigation.

31

ineffective assistance is not shown by failing to present every conceivable 
for impeaching the testimony ol?other witnesses. M, m.
Alleged available third partv culprit evidence.

Next, the defendant claims that his trial counsel should have presented
evidence indicating that several times during the investigation Steven Betts had
been mentioned as a possible suspect. (Def. Memo. 78). Detective Smith?s report
just indicated that ?Steven Betts? name has been mentioned several times as
possibly being the one that did the shooting.? (A. 54). Detective Smith did not
attribute that information to any more than rumor on the street. The detective
subsequently interviewed Betts? ex-girlfriend, Jay Boone, who stated ?she had
heard Steven might have been involved.? (A. 54).

Hearsay suggesting a third party, rather than the defendant, actually
committed the crime is only admissible if there are substantial connecting links
between the third party and the commission of the crime. Commonwealth v.
Alcantara, 471 Mass. 550, 559-560 (2015). The evidence must have a rational
tendency to prove that the third party was actually the murderer and cannot be too
remote or speculative. Here, there is no indication that the vague su5picion of
Steven Betts described in the report was based on anything more than rumors on
the street. Such layered hearsay from uncertain sources was unreliable and

inadmissible. Id?

 

9 The defendant also points to the report indicating that a man was found

hiding in the closet of Denise Bradshaw?s apartment for no apparent reason.?
(Def. Memo. 79; A. 51). However, there is absolutely no connecting link between
that man and the shooting of the victim several days earlier. Therefore, it was
also inadmissible to suggest a possible third party culprit. E. at 560.

32

Additional information concerning height.

Next, the defendant points out that the defendant's booking sheet
describes his height as six feet (actually (A. 205), while Detective
LaGarde?s summary of the autopsy report described the victim as six feet, one
inch tall (A. 37) and that trial counsel failed to present this despite the fact that
several witnesses described the victim as noticeably taller than the man who shot
him. (Def. Memo. 78?80). However, the defendant has not shown that this
deprived him of a substantial ground of defense. The actual source and reliability
of the information in the booking sheet has not been established. It could very
well be that it was an estimate self-reported by the defendant. Similarly, it
remains unclear exactly how Detective LaGarde got this information for his
summary at the autopsy. The actual autOpsy (which does not list Detective
LaGarde as being present) does not provide any information concerning the
victim?s height. (Com. App. 47). The failure to present this apparent hearsay of
undetermined reliability does not establish that the defendant was deprived of an
available and substantial ground of defense or that he received ineffective
assistance of counsel.

Additional cross-examination of Terri Starks.

The defendant next questions why his trial counsel did not cross-examine

Terri Starks more and why he did not recall her to the stand after indicating

that he might do so. (Def. Memo. Ms. Starks did not identify the

 

'0 At the end of the ?fth day of trial, trial counsel told the judge he had not

decided whether he would recall Ms. Starks to the stand and ?would like to talk
about it with my client at length? first. (Tr. V, 119-l20).

33

defendant as the shooter in the courtroom, and while the videotape el?lectlvely
locked her into her prior selection of a photograph, at trial she did not identifyr the
defendant?s photograph as the one she selected. (Tr. II, 48-49). Her testimony
therefore did not particularly hurt the defendant in ways that it could have or show
a desire on her part to tailor her testimony to support the prosecution. In these
circumstances there was little to be gained by introducing details about charges
she was facing at the time of trial to suggest she had a particular motivation to
please law enforcement.

As for the charges of the time of the interview, after Detective Smith
identi?ed the picture selected by Ms. Starks (Tr. V, 26-27, 29-30), the defendants
trial counsel elicited that Ms. Starks had been placed under arrest and held
overnight prior to the interview. (Tr. V, 46, 48). The detective wanted her
brought in so that he could question her. (Tr. V, 48). Contrary to the customary
practice of bringing people in custody to the District Court ?rst thing in the
morning, Ms. Starks was told she would be taken to court a?er the interview was
over. (Tr. V, 48-50). After Ms. Starks cooperated with the interview, she was
taken to court and ?at some point? released. (Tr. V, 50-51). The jury was
therefore made aware of the circumstances suggesting pressure from the existence
of charges at the time of the interview.

On the morning of the sixth day of trial, while everyone was waiting for
Ms. Starks to arrive, the judge informed the jury don?t think it?s any secret,
ladies and gentleman, that this witness is in custody, and we depend on others to

bring her here.? (Tr. VI, 4). In his closing argument, the defendant?s counsel

34

pointed out that Ms. Starks gave her statement while she was under arrest and that
she was "in custody now." (Tr. VI, 12). In these circumstances, it would not
particularly assist the defense to add that the charges pending against Ms. Starks
were for being a common night walker, (A. 473-479), a misdemeanor offense that
did not require deceit or dishonesty.

Contrary to the defendant?s claim, (Def. Memo. 83-84) the trial record
does not support any idea that trial counsel eventually decided not to recall Ms.
Starks to the stand because he did not want to wait any longer because of other
unrelated business. The portion of the record cited by the defendant concerns a
signi?cantly later portion of the proceedings when trial counsel requested, and
received, leave during thejury deliberations to go to his of?ce that was ?ve to ten
minutes away. (Tr. VI, 80). From all that is shown by the record, trial counsel
may very well have spoken with Ms. Starks after her return to the courthouse and
reasonably concluded that any further testimony from her would not be help?il to
the defense.

Counsel?s Opening.

The defendant next complains that his trial stated in his opening indicated
that the jury could expect to hear, from the ??rst officer on the scene,? that the
defendant was one of the people that came out of the bar during the ?rst stages of
the investigation, and that the defendant talked to Paul Jones and Denise Perkins,

but he later failed to produce that evidence. (Def. Memo. 

 

The full context of that portion of counsel?s opening statement is as

follows:

35

To establish a claim 01 ineffective assistance for tailing to produce
evidence mentioned in the opening the defendant must show that the lack of the
evidence effectively deprived him of a substantial ground of defense.
Commonwealth v. Dunham, 435 Mass. 97, 1 10 n. 14 (2001). He must also show
that it was manifestly unreasonable to mention the evidence in the Opening but
fail to secure its presentation later. ?In determining whether failure to produce
evidence promised in an opening statement is ineffective assistance of counsel,
we look at whether there was some incompetency in the preparation of the

statement and whether the failure to produce evidence was due to events beyond

 

?Well, let?s see where that leads us. Jones and Denise Perkins. It really
wasn?t simply what Kevin said. They didn?t look at some photographs and say,
oh, yeah, that?s him, listen to how they did it. Listen to if they even are certain
today as to what they did and what they saw. One thing is sure. When they say
that earlier that night they saw Struthers and Darrell Jones go into D?Angelo?s to
get a sub, they did indeed see that, they did. Then a few minutes later they saw
the shooting and sometime later, when they ?nally decided that it was Darrell
Jones, could that have been the product of who they saw earlier? Is it possible
that in their desire to catch someone who committed a crime that alter some times
goes by that the ?xation in their mind is the last black male they saw, you?re
going on get some evidence, you?ve already heard, how this party that did it ran
up some streets, apparently jumped a fence or ended up in a barroom and all that
business, and yet you will get from the police, from the police, the ?rst o?icer on
the scene, that amongst the people who came out of Pete and Mary?s when he
arrived there to investigate was Darrell Jones. He was there. Could he have been
there? You?re going to hear that he was there, no question, from a police witness,
right there, right there, when Jones and Perkins came back in that minute of
driving around looking for him, he was there with all the other witnesses. You?ll
get testimony that Darrell Jones talked to Jones and Perkins (sic) and asked if they
were witnesses and if they saw the crime and their response was yes, we?re
witnesses, they?re talking to Darrell Jones at the scene, nobody recognized him. I
suggest to you you will get all that. I suggest to you when you are done you will
be left with the question why in the world would he do that. Is anybody going to
give you any motive why Darrell Jones would shoot Rodrigues? I suggest that
there will be evidence put before you both through the examination of the
government witnesses and through the production of our own evidence.?

(Tr. II, 18-20).

36

counsel's control or had strategicjusti?cation." Commonwealth v. Garvin. 456
Mass. 778, 791 (2010).

Here, evidence came in through Of?cer Shanks, the second of?cer on the
scene, (Tr. II, 113-115), that the defendant came out of Pete and Mary's and
spoke to Of?cer Shanks while he should have been within the sight of Denise
Perkins and Paul Jones. (Tr. II, 119-120). Nevertheless, Jones and Perkins said
they did not see anyone there who was involved. (Tr. II, 120). Defendant?s trial
counsel emphasized that point on cross-examination. (Tr. II, 126?129, 131-132).
Thus this aspect of the openings was presented in the evidence, although not in
the exact form that the defendant claims it should have been. Ga_rvin, at
790.

The defendant?s trial counsel apparently believed he would be able to
elicit evidence that the defendant spoke to Paul Jones and Denise Perkins outside
the bar. He challenged the credibility of Of?cer Shanks testimony, in response to
cross-examination, that the defendant and his companions did not speak to Paul
Jones and Denise Perkins. (Tr. II, 127-129). He also questioned Paul Jones about
whether anybody came over to him and asked him if he was a witness. (Tr. 
67). Thus counsel attempted to elicit the evidence he previously described.
gm, at 791.

There is nothing in the record, or presented by the defendant, indicating
what prompted trial counsel to mention this expected evidence in the opening, or
what may have stopped him from presenting anything further. For all we know

the information may have come from the defendant himself and counsel may have

expected to present it through. at least. testimony from the defendant. After all.
the prior affidavits of the defendant state that he expected to testify as the trial
began, but decided not to once they received the results of the polygraph test rnid-
trial. (Com. App. 54-55; A. Toward the end of the third day of trial,
the defendant?s trial attorney announced that the defendant was not going to
testify and that he would provide the prosecutor with a copy of the polygraph
report. (Tr. 133). The defendant has not met his burden of showing it was
manifestly unreasonable to mention this aspect of the anticipated evidence in the
opening and that counsel was not prevented from presenting the supporting
evidence by circumstances and strategic concerns beyond his control. M,

supra at 791; Duran, supra at 10. Finally, the prosecutor never asked thejury to

 

draw any inferences against the defendant for any alleged failure to ful?ll any
promises made in the defense counsel?s opening. (Tr. 17-30). Bur?an, at
111. The defendant has not shown ineffective assistance in counsel?s opening.
Closing argument.

The defendant also claims that his trial counsel presented an ineffective
closing. (Def. Memo. 86-87). Trial counsel argued that the somewhat equivocal
identi?cations of the defendant as the shooter were unreliable in the general
circumstances, whether or not the witnesses were intentionally lying. (Tr. VI, 7?
14). He also emphasized that no motive for a shooting by the defendant had been

presented. (Tr. VI, 11). The defense now argues that in addition, or instead, trial

 

?2 The defense reaction to the polygraph test results was addressed in both

prior motions claiming ineffective assistance.

counsel should have emphasized particular points the delense now finds
particularly signi?cant.

?[S]uggesting ways in which counsel?s closing argument might have been
stronger does not make out a claim of ineffective assistance.? Commonwealth v.
De_nis, 442 Mass. 617, 627-628 (2004). After all, any competent counsel, using
hindsight, can craft a more eloquent, forceful, and potentially more bene?cial
closing. E. at 627. Even tactical decisions in regards to closings that may appear
questionable after the fact do ?not suf?ce to support an ineffective assistance
claim.? Commonwealth v. Bennett. 472 Mass. 827, 842 (2015). Rather, the
defendant must show that his lawyer?s closing effectively denied him of an
otherwise available and substantial ground of defense. Commonwealth v.

Triplett, 398 Mass. 561, 568-569 (1986) quoting Commonwealth v. Street 388

 

Mass. 281, 287 (1983). The defendant has made no such showing in this case.
Seating during trial.

The defendant?s claim concerning his counsel?s not allowing him to be
seated at counsels table was raised and rejected in the defendant?s second motion
for a new trial. (A. 264-265; Corn. App. 19-25). The Single Justice explicitly
denied any further review on the claim. (A. 265). Nothing new of any substance
has been added to the claim now. (Def. Memo. 88?89). Direct estoppel applies
and no ?lrther consideration is warranted. Rodrigues, at 710.

Statement during the view.
The defendant also claims that his counsel made an erroneous statement

during the View when he stated ?you will get some testimony that the perpetrator

 continued up Franklin Street to The Colonial Spa.? (Tr. l. 58-59; Def. Memo.
89-91). However, at trial it was undisputed that Denise Perkins and Paul Jones
saw the perpetrator run behind Pete and Mary?s towards Franklin Street and climb
over a fence by the cable vision building. (Tr. 15, 38, 52). That same night
the owner of the Colonial Spa bar, which was up Franklin Street, noticed a black
man who came into the bar, stayed a short while and left without buying anything.
(Tr. IV, 44-46). The next morning the murder weapon was found in the men?s
room in a rubbish bin. (Tr. IV, 47). The fact that the perpetrator made his way up
Franklin Street to the Colonial Spa was shown by an obvious and undisputed
inference at trial, given the location of the murder weapon. That it was
established by an obvious and undisputed inference rather than direct testimony as
might be expected from counsel?s suggestion during the view could not have
mattered to the defense or prejudiced the defendant.

Developments on identi?cations.

Finally, the defendant notes changes in the approach to identi?cation
evidence that have occurred since his conviction became ?nal in 1990. The
defendant?s counsel ?led a motion to suppress the out of court identi?cations
prior to trial. (A. 215). The defendant also challenged the out of court
identi?cations as unduly suggestive in his direct appeal. (Com. App. 60, 81-85).
The SJ summarily rejected the claim after its plenary review ?we see nothing
improper in the identi?cation procedures.? m, at 170.

The defendant would have this court ignore that prior ?nal decision and

review the issue again by applying much later developed principles from cases in

4a

the last few years where it was expressly stated that the new holdings only apply
to cases commenced in the future. Commonwealth v. Bastaldo, 472 Mass. 16, 24-
25 (2015) (modifying required instructions for the future but not applying
modi?cation in that case); Commonwealth v. Gomes, 470 Mass. 352, 360-361
(2015) (establishing model instruction to be applied in ?lture cases but not case
before court); Commonwealth v. Collins. 470 Mass. 255, 265 (2014) (new
holding only applies to trials commenced a?er date of opinion); Commonwealth
v. Cra?on, 470 Mass. 228, 241-242 (2014) (same as thommonwealth v.
Silva-Santiago, 453 Mass. 782, 798 (2009) (setting protocol court expects to be
followed in the future). These newly developed, prospective only, holdings do
not apply, as a matter of law, to the consideration of the defendant?s case decided
with ?nality twenty six years ago.

Contrary to the defendant?s claim (Def. Memo. 93-94) the cases of
Commonwealth v. Adjutant, 443 Mass. 649 (2005) and Commonwealth v. Print:-
m, 448 Mass.718 (2007) do not suggest any allowable deviation from that
rule. In Adjutant, the court adopted a new rule and applied it in that case.
?Because the defendant alleged the error and argued for the rule on direct appeal,
she should have the bene?t of this decision.? MjuLant, at 667.

Pring-Wilson was on direct appeal when let?dim was decided. mg;
m, at 719-720. Like the defendant in Adjutant, the defendant in Ping;
@591; had also alleged essentially the same newly found error and had argued it
as a basis for post-conviction relief. Prina-Wilson, supra at 736. In these

circumstances, the Court reached the not unusual or exceptional determination

41

that defendants in similar situatlons deserved 31milar results. It is a far different
matter to suggest that principles said to apply only to future cases (and not even in
the case before the court) warrant consideration in cases decided with ?nality
after direct review more than twenty years earlier.


The defendant has not established that any of the multiplicity of issues he
presents could not have been presented in prior post-conviction proceedings. In
the end, the defendant essentially just disagrees with the jury?s determination that
the evidence warranted his conviction. He has not shown that his case is the rare
?rst degree murder case after plenary review that has such exceptional
circumstances that relief is warranted on the basis of issues that could have been

raised in prior proceedings. Smith, supra.

Respectfully submitted,

WW

Robert C. Thompson
Assistant District Attorney
For the Plymouth District
BBO 547720