Com. v. Brookins

• Decision Date: 09 February 1993
• Docket Number: No. 91-P-872,91-P-872
• Citation: 33 Mass.App.Ct. 626,603 N.E.2d 916
• Parties: COMMONWEALTH v. Lamont BROOKINS.
• Court: Appeals Court of Massachusetts

Page 916

603 N.E.2d 916

33 Mass.App.Ct. 626

COMMONWEALTH v. Lamont BROOKINS.

No. 91-P-872.

Appeals Court of Massachusetts,

Suffolk.

Argued June 11, 1992.

Decided Nov. 30, 1992.

Further Appellate Review Granted

Feb. 9, 1993.

Brownlow M. Speer, Committee for Public Counsel Services (Bruce R. Bono, Committee

for Public Counsel Services, with him), for defendant.

Paul B. Linn, Asst. Dist. Atty., for Com.

Before KASS, PORADA and LAURENCE, JJ.

LAURENCE, Justice.

On appeal from his convictions of assault by means of a dangerous weapon and unlawful carrying of a firearm and from the denial of his motion for a new trial, Brookins asserts several grounds for reversal. Only one merits extended discussion. Brookins contends that he was materially prejudiced by his trial counsel's failure to secure the testimony of a critical alibi witness and was thereby deprived of his constitutional right to effective assistance of counsel. We agree.

1. The Commonwealth's version of events. The Commonwealth's case against Brookins hinged upon his identification by Boston police detective Larry Ellison as the man Ellison had fleetingly observed firing a gun at other people and then fleeing. Ellison and fellow officer Elton Grice, both in plainclothes, had just executed a search warrant, pertaining to unrelated criminal activity, at 6 Wayne Street in Roxbury. As Ellison emerged from the building in front of Grice, he noticed three black men near the corner of Wayne Street and Blue Hill Avenue, at a distance approximately equal to the width of two sidewalks and the avenue. One of the men fired a handgun several times at another group of individuals standing across the street from him near the intersection of Castlegate Road and Blue Hill Avenue.

The three men then fled, pursued by Ellison and Grice with guns drawn. As the suspects split up, Ellison attempted to follow two of them onto Maple Street, but they eluded him. Ellison then radioed in a description of the shooting and pursuit and requested assistance. Grice, who had not observed the shooting, chased the third man but also lost sight of him near the corner of Maple and Nazing Streets. Proceeding down Maple Street to Seaver Street in response to a police radio broadcast informing him that the suspects might be heading that way, Grice saw and began to chase an individual, who turned out to be Brookins, running down the street toward Blue Hill Avenue. Grice, with gun still drawn, yelled at Brookins to stop and ran after him. Brookins continued running and began frantically attempting to gain entry into passing vehicles on Blue Hill Avenue by banging on car windows and throwing himself against doors in a frenzied fashion, until he was knocked down by a car. Grice seized him and had him taken to the police station, where Ellison identified him as the shooting assailant.

Although he had observed the three black males at the scene of the shooting for only "a short time, maybe 10, 15 seconds, if that long" before they fled, Ellison based his identification on the fact that the person who fired the gun had "turned and looked me right in my face" as he started to run off. Despite further investigation, the police never found or produced any gun, bullets, or other physical evidence tying Brookins to the shooting, never located the other suspects, and produced no other witness placing Brookins at the scene of the shooting or identifying him as the shooter.

2. Brookins's version of events. Brookins took the stand in his own behalf and presented himself as an innocent bystander who got caught up in the confusing and dangerous circumstances of a nearby shooting incident. He testified that he had been sitting on the steps of a church near Wayne Street and Blue Hill Avenue, drinking beer after work. Upon hearing several shots being fired, apparently across the street from the church, he got up and ran through the church school yard out onto Wayne Street. After he had run to Seaver Street, he slowed down and looked behind him. He saw that he was being chased by a man (in streetclothes) with a gun in his hand. As the man with the gun gained in his pursuit, Brookins ran toward Blue Hill Avenue. With the gunman only about thirty feet behind him and running fast, Brookins, panic-stricken and fearing he was about to be shot, attempted to force his way into several passing cars. When one of them struck him, he fell to the ground and was apprehended by Grice, who had been the man chasing him.

3. The incident of the missing witness. In response to the judge's call for the next defense witness after Brookins had been excused, Brookins's trial counsel requested a bench conference, where she announced that, although two witnesses were "supposed to be here," they had not shown up and "that kind of threw me off." At that moment, counsel observed one of the two missing witnesses just entering the courtroom and (apparently assuming or hoping both had arrived) requested a brief recess for about five minutes, "so I can talk to the witnesses out there." The judge denied the request. Counsel then put on the only newly-arrived witness, an investigator who authenticated several photographs of the area around the church steps where Brookins claimed to have been sitting. After the judge refused counsel the opportunity to put on a psychiatrist as a "rebuttal" witness to counter what counsel viewed as the insinuation of a charge of recent fabrication during the prosecution's cross-examination of Brookins, the defense rested. At no time did counsel identify the missing witness, describe the nature of the witness's expected testimony, make any sort of offer of proof, request a bench warrant for the arrest of the witness, or seek a continuance because of the unavailability of the missing witness.

4. Brookins's new trial motion. Following Brookins's convictions, newly assigned counsel filed a motion for a new trial, supported by affidavits from Brookins, his trial counsel, two investigators, and the missing witness, Gwendolyn Parish. The thrust of these affidavits and the argument for the new trial was as follows. Several weeks prior to the trial, investigators retained by Brookins's counsel had located an alibi witness who could confirm Brookins's version of the events. That witness was Parish, who resided at 504 Blue Hill Avenue, directly across the street from the church steps where Brookins alleged he had been lounging prior to the shooting and near Castlegate Street.

Parish, who was unrelated to Brookins and had never seen him prior to the day of the shooting incident, stated that just prior to hearing the gunshots and while sitting on the steps of her building with her children, she had noticed a young black man sitting on the church steps across the street drinking beer. She observed him engaged in this activity for fifteen to thirty minutes. When the shots rang out, she saw the man on the steps duck down and lie on the steps. She then ran for safety into the foyer of her building with her children. Peering through the glass of the front door, she saw two young black men run from Castlegate Street past her building into the church parking lot and onto Wayne Street. Then she saw the man on the steps get up and run into the same parking lot. Shortly thereafter, she saw police cars converging on the area from all directions. When shown photographs of Brookins, Parish identified him as the man who had been sitting on the steps.

Brookins's counsel made arrangements for Parish to be summoned to testify at trial. She included Parish's name on the list of prospective witnesses that the judge read to the jury at voir dire but did not mention Parish as an alibi witness in her opening statement to the jury. Parish duly appeared in court on the first day of the trial but could not be put on the stand by the end of the trial day. Brookins's counsel told her to be back in court by 9:00 the next morning, which Parish agreed to do. ¹

While she had been waiting to be called to the stand, Parish had been approached by the prosecutor outside the courtroom. The prosecutor attempted to interview her at that time because she had earlier refused to speak with a representative of the district attorney's office who had come to her home (and whom Parish's affidavit described as being "very hostile" and boasting that "they ... were going to bury [Brookins] under the jail"). Parish refused to speak to the prosecutor at court. On the evening of the first day of trial, Parish was visited at home by the prosecutor, accompanied by "two big policemen." She again refused to speak with him. Her husband became very upset by these events, told her not to "get involved," and ordered her not to return to court the next day. Parish complied and went to work instead. ^1a

While waiting for court to open the next morning, Brookins's counsel was orally informed by the assistant district attorney that, should Parish testify and identify Brookins as the man sitting on the church steps, he would call a rebuttal witness, one James Sims, who had "positively identified" the photograph of another man, not Brookins, as the person sitting on the steps that day. When Parish did not show up, counsel attempted to reach her by telephone, both before and after trial resumed, but failed. By the time Parish received a message that counsel wanted to speak with her, early in the afternoon, and finally reached counsel, later that afternoon, counsel told her that it was too late, the jury having returned their verdicts at 2:15 P.M.

Parish stated in her affidavit in support of Brookins's motion for a new trial that she was now willing to come to court to testify as described on Brookins's behalf. Trial counsel's affidavit did not explain why she had failed to argue for a continuance and or to request a warrant to bring Parish into court to testify, nor did she state that any of her acts or omissions were based on any strategic analysis or decision. The...