Opinion
13-P-1255
01-09-2015
COMMONWEALTH v. DANIEL NEWHALL.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile, Daniel Newhall, appeals from a conviction as a youthful offender of assault and battery on a person over sixty, causing serious bodily injury. He contends that: (1) his attorney was ineffective because she did not provide adequate notice of a percipient witness; and, (2)the trial judge abused her discretion when she excluded the testimony of that witness. We conclude that the late disclosure of the witness, and the resulting exclusion of the witness's testimony concerning what became a contested issue at trial, deprived the juvenile of a fair trial. We vacate the conviction and remand for further proceedings.
Background. The juvenile, his brothers, and two other boys were in front of the home of an elderly neighbor playing football on August 30, 2010. A confrontation ensued when the neighbor, who had repeatedly told the boys not to play in front of his house, attempted to go to the boys' home to speak to their mother. The neighbor testified that when he tried to ring the doorbell at the boys' home, the juvenile told him to stop and pushed him in the chest; the next thing he remembered was that he was at home, holding a blood soaked towel against his head. The juvenile testified that he told the neighbor he would get his mother for him, but when he tried, the neighbor grabbed him by the shoulders and started shaking him. The boy claimed that when he tried to break free from the neighbor's grasp, the neighbor fell backwards and hit his head.
The juvenile's two younger brothers witnessed the altercation from the driveway area of the house. The ten year old brother testified that he saw the neighbor grab the juvenile by the shoulders and shake him, but didn't see his brother do anything. The twelve year old brother testified that the neighbor grabbed the juvenile by the shoulders, and that when the juvenile pushed back, the neighbor fell.
Near the end of the first day of evidence, after one of the boys had testified, defense counsel informed the judge of her intention to call the juvenile's fifteen year old sister on the following day. Defense counsel represented that the juvenile's sister was older than her younger brothers, had been standing "right inside" the door to the house when the incident occurred, and was "actually closest" to the incident. The prosecutor, who had been informed of the witness on the previous day, objected on the basis of lack of notice pursuant to Mass.R.Crim.P. 14, as appearing in 442 Mass. 1518 (2004).
The trial judge excluded the older sister's testimony on the ground that admission would have been "fundamentally unfair." The judge noted the lack of notice to the prosecution. There was no mention of the juvenile's sister in any police report, nor was she identified as a person to be interviewed by the police or the juvenile's private investigator. The judge concluded that the juvenile would not be prejudiced by the exclusion of the testimony because the two other percipient witnesses, the juvenile's brothers, were available "to testify as to the juvenile's perspective." The judge did not address the fact that the proffered testimony placed the sister closest to the scene. At trial, however, the prosecutor sought to discredit the brothers' testimony by arguing in closing argument that the brothers had agreed upon a story to protect the juvenile, and that they were in the driveway area, which did not provide a clear view of the altercation.
Discussion. The juvenile contends that he was denied effective assistance of counsel because trial counsel failed to properly and timely disclose a material witness. "The burden of proving entitlement to a new trial based on ineffective assistance of counsel rests on [the juvenile]." Commonwealth v. Watson, 455 Mass. 246, 256 (2009). The standard is a familiar one. The juvenile must show that "there has been serious incompetency, inefficiency, or inattention of counsel - behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and if so, that, "it has likely deprived [the juvenile] of an otherwise available, substantial ground of defense." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). To prevail, the juvenile must establish that "better work" by trial counsel "might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
If judged by the result, that is the exclusion of the evidence, counsel's performance fell below the first prong of Saferian. Contrast Commonwealth v. Chappee, 397 Mass. 508, 522 (1986) (decision not to disclose expert "arguably reasoned tactical or strategic [judgment]"). Defense counsel informed the prosecutor that she wanted to call the witness before the first day of trial and before she had heard the prosecution's case. There is no basis in this record upon which to conclude that the failure to timely disclose a material percipient lay witness with a superior opportunity to view the events in question was the product of reasoned tactical judgment.
However, the juvenile also contends that the judge abused her discretion in excluding the testimony of his sister. "A [juvenile's] constitutional right to defend himself against a criminal charge entitles him to call witnesses to testify in his behalf." Commonwealth v. Steinmeyer, 43 Mass. App. Ct. 185, 189 (1997). That right, however, is not absolute. Ibid. "In the face of 'legitimate demands of the adversarial system,' this right may be tempered according to the discretion of the trial judge." Commonwealth v. Carroll, 439 Mass. 547, 552 (2003), quoting from Commonwealth v. Edgerly, 372 Mass. 337, 343 (1977). Juvenile Court Standing Order 2-07, effective January 1, 2007, and Mass.R.Crim.P. 14 (a)(1)(B), as amended by 444 Mass. 1501 (2005), require the reciprocal discovery by the defense of the names, address, dates of birth, and statements of those persons whom the juvenile intends to call as witnesses at trial. See Mass.R.Crim.P. 14 (a)(1)(B), as amended by 444 Mass. 1501 (2005). "The court may in its discretion exclude evidence for noncompliance with a discovery order issued or imposed pursuant to this rule." Mass.R.Crim.P. 14(c)(2), as appearing in 442 Mass. 1526 (2004). Commonwealth v. Paiva, 71 Mass. App. Ct. 411, 414 (2008).
A trial judge also has authority to exclude testimony from a witness not listed on the pretrial conference report. See Commonwealth v. Durning, 406 Mass. 485, 495 (1990). No pretrial report appears on the docket. On appeal, the Commonwealth represents that it has been advised by the trial court's clerk's office that no pretrial conference report was filed for this case. Defense counsel "thought" she may have told a former prosecutor about Jessica's testimony. The docket does not explicitly reference a pretrial conference in the case, but there were multiple occasions on which the case was continued for trial.
"The exercise of the authority to exclude must, however, be balanced against [a juvenile's] constitutional right to present evidence." Paiva, supra. "[F]actors which must be taken into account in assessing such a balance . . . include: (1) prevention of surprise; (2)evidence of bad faith in the violation of the conference report; (3) prejudice to the other party caused by the testimony; (4) the effectiveness of less severe sanctions; and (5) the materiality of the testimony to the outcome of the case." Commonwealth v. Durning, 406 Mass. 485, 496 (1990).
In Commonwealth v. Paiva, supra, this court recognized that prejudicial error resulted from the trial judge's refusal to allow the testimony of an expert witness who had not been listed on the pretrial conference report. Paiva, supra at 416. The judge focused on only two of the factors set forth in Commonwealth v. Durning, prevention of surprise and the possibility of prejudice to the Commonwealth. Paiva, supra at 415. This court reasoned that, although the potential for prejudice existed, that, "it was possible to mitigate that prejudice," and that, "[i]n the absence of a finding of bad faith on the part of [the juvenile], and given both the materiality of the evidence and the relative ease with which any prejudice to the Commonwealth could have been avoided, we conclude that this is a case in which enforcement of the procedural rules should have been a secondary consideration." Id. at 416.
The same rationale applies here. We accept the judge's finding that there was a measure of unfair surprise in the disclosure. However, there was no finding or even suggestion of bad faith on the part of defense counsel. Compare Commonwealth v. Chappee, 397 Mass. 508, 516-518 (1986). The witness was a lay witness who was not scheduled to testify until two days after disclosure to the prosecution. See Commonwealth v. Dranka, 46 Mass. App. Ct. 38, 40-43 (1998) (disclosure two and one half days before anticipated testimony). Compare Commonwealth v. Durning, supra at 496-497 (disclosure two to three hours before testimony). The judge failed to consider whether there were any less drastic measures available to mitigate any potential prejudice to the prosecution's case, such as ordering that the prosecutor be permitted to interview the witness. See Commonwealth v. Paiva, supra at 416. Further, defense counsel's offer of proof made clear that the sister's testimony would not be lengthy or complex. See Commonwealth v. Dranka, supra at 42 ("This anticipated testimony is not the kind of sophisticated scientific testimony that would appear to warrant extensive preparation time"). Finally, the testimony was highly material, as the prosecutor's closing made clear.
We assess the judge's ruling based on the record as of the time it was made. See Commonwealth v. Dranka, supra at 40. The prosecutor repeatedly told the judge that there would be "no prejudice" because there were "two other witnesses." We recognize that the judge may have relied on the prosecutor's representations (later abandoned). However, at the time of the ruling, one of the brothers had already testified, and the prosecutor had cross-examined him regarding where he was at the time of the incident - that is, outside, not on the porch, behind the neighbor. Defense counsel had emphasized that the sister had seen the incident from a wholly different vantage point. Thus, the evidence was not cumulative.
On balance, we conclude, in view of the lack of bad faith and the availability of less dire means to ameliorate the prejudice to the Commonwealth, that the judge abused her discretion by failing to consider all of the factors and barring the testimony. "[T]he preclusive sanction should be reserved for 'hard core transgressions.'" Ibid., quoting from Chappee v. Vose, 843 F.2d. 25, 31 (1st Cir. 1988). "A court should only employ this sanction . . . when convinced that a failure to comply with an order was deliberate and prejudicial to the Commonwealth." Reporters Notes to Rule 14, Mass. Rules of Court -- State, Rules of Criminal Procedure, at 187 (Thompson Reuters 2014). "In imposing the 'severest sanction,' that of preclusion or striking of evidence, the judge should make clear that she has taken into account [the] requisite factors in the course of balancing the vindication of the rules against a defendant's right to present witnesses." Commonwealth v. Steinmeyer, 43 Mass. App. Ct. at 190, quoting from Taylor v. Illinois, 484 U.S. 400, 417 (1988). See Commonwealth v. Dranka, supra at 41 (abuse of discretion where judge considered only four out of five factors), citing Commonwealth v. Durning, 406 Mass. at 496 (all factors "must be taken into account"); Commonwealth v. Paiva, supra at 414-415 (abuse of discretion where judge considered only two of five factors).
The defendant was deprived of significant evidence in his defense, ibid., evidence that was not merely cumulative and may well have made a difference. The prosecutor argued to the jury that the boys had agreed upon a story, and were actually unable to see the incident properly because they were behind the neighbor, and at a distance. The proffered testimony of a percipient witness would have undercut this argument substantially. We recognize that the Commonwealth's fundamental argument was that the boys were biased witnesses, and that the prosecutor would have been permitted to argue a similar bias on the part of the sister. However, once the evidence was excluded, and the Commonwealth then strategically exploited its absence, the defendant was deprived of a defense, and a fair trial.
For these reasons the judgment is reversed, the verdict is set aside, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Rubin, Brown & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 9, 2015.