Com. v. Schand

• Decision Date: 18 July 1995
• Parties: COMMONWEALTH v. Mark SCHAND. Hampden
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 566

653 N.E.2d 566

420 Mass. 783

COMMONWEALTH v. Mark SCHAND.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued May 1, 1995.

Decided July 18, 1995.

John M. Thompson, Springfield (Linda J. Thompson with him), for defendant.

R. Michael Cassidy, Asst. Atty. Gen. (Pamela L. Hunt, Asst. Atty. Gen., with him), for Com.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

The defendant, Mark Schand, was found guilty of murder in the first degree by reason of felony-murder, armed robbery, and assault with intent to kill. Represented by new counsel on appeal, he argues that the trial judge erred in denying his motion for a new trial, which was based on the allegation that the prosecution had failed to disclose exculpatory information contained in certain police reports and had also failed to disclose promises, rewards, and inducements offered to two Commonwealth witnesses. We reject these arguments. The defendant also argues that a new trial is required because of alleged errors with respect to the jury instructions on joint venture, reasonable doubt, and inferences, and in the admission of corroborative identification testimony of police officers. The defendant maintains as well that his trial counsel furnished him with ineffective assistance of counsel. We discern no basis for a new trial in any of these arguments. Finally, we conclude that there is no basis to exercise the authority granted to us under G.L. c. 278, § 33E (1992 ed.). Accordingly, we affirm the order denying the defendant's motion for a new trial and the judgments of conviction.

Based on the evidence in the Commonwealth's case, the jury could have found the following. On the night of September 2, 1986, the defendant, who was from Hartford, Connecticut, together with three or four other Hartford men, came to Springfield and went to the area of the After Five Lounge. Outside the lounge, shortly before 11:25 P.M., the group of Hartford men approached Charles Stokes and sought to purchase cocaine. Charles and his brother, David Stokes, who were standing with several other men, showed the Hartford men some cocaine. The mood became confrontational. As the cocaine was being passed around, Charles objected and asked them to "give me [back] my shit...." Someone in the Hartford group pulled a gold chain off David Stokes's neck, and he began to run toward the After Five Lounge. Charles grabbed for his cocaine and, hearing a gun shot, began running toward the side door of the lounge. He was hampered by his untied shoelaces, and fell several times. While he was trying to escape, Charles heard more shots. As he was running past the victim, Victoria Seymour, he heard her exclaim, "I've been shot." He again fell in the street. Before he could get up, a man stood over him with a handgun and told him, "Kick the shit in." Charles turned over the cocaine he was holding and all the money on his person. The robber, and others involved in the melee, fled on foot. The victim died from her gunshot wound early the next day.

At trial, Charles identified the defendant as one member of the Hartford group who had asked about the purchase of cocaine and as the man who had robbed him at gunpoint. In addition to Charles, five other eyewitnesses identified the defendant as the gunman who had robbed Charles. One of these identified the defendant as the man who had shot the victim, although the basis for this identification was not clear. Two Springfield area youths also identified the defendant as a member of a group of persons they had seen earlier at a Pizza King restaurant which was near the lounge. One of the youths saw members of the group leave the restaurant in a van with a Connecticut registration.

The defendant was arrested in Hartford about eight weeks after the incident. He told Springfield police after his arrest that he had not been in Springfield on September 2, 1986, and that he had gone to Springfield only once in his lifetime. To counter these assertions, and to show consciousness of guilt, the prosecution presented testimony that the defendant had been seen in Springfield frequently at various events and places in the months immediately preceding the homicide. The defendant did not testify at the trial. He presented evidence, however, from a dentist who testified that he had performed a root-canal type procedure on one of the defendant's back teeth late in the morning of September 2, 1986, and from the mother of the defendant's child and several of her relatives and acquaintances, who testified that the defendant had been in their presence in Hartford during the day and night of September 2, 1986.

1. Motion for a New Trial.

The defendant's motion for a new trial raised two principal points. First, he argued that, despite the defendant's general request for exculpatory evidence and for evidence concerning out-of-court identification procedures, police department reports pertaining to the issue of identification had not been disclosed. In one instance, it was argued, a report had been tampered with to conceal the existence of a second page containing exculpatory evidence. Second, he contended that the prosecution had failed to reveal other exculpatory evidence in the form of promises, rewards, and inducements offered to two identification witnesses, Charles Stokes and Michael Bernard, in connection with criminal charges pending against them.

The trial judge conducted a lengthy and thorough evidentiary hearing on the motion for a new trial. Testimony was taken from seventeen witnesses, including the prosecutor, the defendant's trial counsel, counsel for Charles Stokes and Michael Bernard, (both men had the same lawyer for their respective criminal proceedings), and police officers. The judge also conducted a careful review of the record, including the transcript of a hearing on the motion to suppress out-of-court identification evidence, and he was aided in his analysis of the merits of the motion for a new trial by his familiarity with the history of the case and his personal observation of the evidence as it had unfolded at the trial. The judge made thorough and extensive findings of fact.

The judge's findings of fact are to be accepted if supported by the evidence, and he is the final arbiter of matters of credibility. His disposition of the motion is governed by the following general standards stated in Commonwealth v. Moore, 408 Mass. 117, 125 (1990): "A motion for new trial is addressed to the sound discretion of the judge, Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and the judge's disposition of the motion will not be reversed unless it is manifestly unjust, Commonwealth v. Little, 384 Mass. 262, 269 (1981), [rev'd on other grounds, Commonwealth v. Santos, 402 Mass. 775, 788 (1988) ]; Commonwealth v. Leavitt, 21 Mass.App.Ct. 84, 86 (1985), or unless the trial was infected with prejudicial constitutional error. Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). Reversal for abuse of discretion is particularly rare where the judge acting on the motion was also the trial judge. Commonwealth v. Leavitt, supra at 85, 484 N.E.2d 1032. Commonwealth v. Gordon, 13 Mass.App.Ct. 1085 (1982)."

a. Disclosure of police reports. The defendant argues that he is entitled to a new trial because the prosecution failed, despite a specific request, to turn over exculpatory information in the form of police reports related to out-of-court identification procedures. To prevail on this point, the defendant must establish that the evidence existed, that it tended to exculpate him, and that the prosecution failed to deliver the information. See Commonwealth v. Adrey, 376 Mass. 747, 753, 383 N.E.2d 1110 (1978), and cases cited. The defendant also must establish that the nondisclosed evidence was "material." Id. When, as here, specifically requested evidence is at issue, it will be considered material if the defendant "demonstrate[s] that a substantial basis exists for claiming prejudice from the nondisclosure." Commonwealth v. Tucceri, 412 Mass. 401, 412, 589 N.E.2d 1216 (1992). ¹

Under the standards expressed above, the trial judge properly decided that no basis had been shown to require a new trial. As the Commonwealth concedes, this case does not serve as "a model of discovery procedure." The prosecutor did not keep a specific record of what had been produced in response to motions by the defendant's trial counsel, nor did that counsel keep a record of what he had received. Although the defendant's trial counsel testified that he had not received certain material, the judge noted that counsel was relying on his memory of a file that had been out of his possession for more than four years. While it was difficult to conclude with certainty, five years after the trial, what reports had been turned over to the defendant's trial counsel, the hearing on the defendant's motion to suppress evidence of out-of-court identifications (held during three days in July, 1987, about four months prior to trial) had provided to the defendant a thorough account of the police investigation. On the basis of the transcript of this hearing, the testimony at the hearing on the motion for a new trial, and the testimony at the trial, the judge found that most of the reports either contained no material exculpatory information, ² had been disclosed to the defendant's trial counsel, ³ or that counsel was aware of the contents of the reports or the information therein. There can be no prejudice when the contents of a police report are known to the defense. See Commonwealth v. Vieira, 401 Mass. 828, 838, 519 N.E.2d 1320 (1988).

The record demonstrates that nothing in a sixth report was exculpatory. ⁴ The seventh report had not been disclosed to trial counsel, but its substance was generally known, and the one fact which was unknown and which could arguably be considered exculpatory, is not sufficient to grant a new trial. ⁵ ...