Com. v. Tucceri

• Decision Date: 09 April 1992
• Citation: 589 N.E.2d 1216,412 Mass. 401
• Parties: COMMONWEALTH v. David W. TUCCERI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1216

589 N.E.2d 1216

412 Mass. 401

COMMONWEALTH v. David W. TUCCERI.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 4, 1991.

Decided April 9, 1992.

Patricia M. Darrigo, Asst. Dist. Atty. (Rosemary D. Mellor, Asst. Dist. Atty., with her), for Com.

Greta A. Janusz, New Bedford, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

WILKINS, Justice.

We granted further appellate review in this case to consider the standard to be applied in ruling on a defendant's motion for a new trial based on the failure of the prosecution to disclose exculpatory evidence in its possession.

At the defendant's 1978 trial on charges of rape, kidnapping, unarmed robbery, mayhem, and assault and battery, identification of the assailant was the only contested issue. The police arrested the defendant near the crime scene in Cambridge within minutes after the attacker had left the victim. The Cambridge police took photographs of the defendant shortly after his arrest. The victim testified repeatedly that her attacker was clean-shaven. Another witness who identified the defendant as the person he had seen near the crime scene testified several times that the man he had seen had no moustache. Police witnesses testified that the defendant did not have a moustache on the day of the crimes. The defendant's wife testified, however, that at the time of the crimes the defendant did have a moustache.

The defendant moved generally for the disclosure of exculpatory evidence. Although he and his counsel knew that photographs had been taken shortly after his arrest, the defendant never specifically requested their production. Certainly, the defense was not hindered by an inability to be specific in any request it might make for the photographs. In October, 1988, approximately ten years after his trial, the defendant wrote the record department of the Cambridge police department for a copy of the photographs taken of him on the night of his arrest. In circumstances not disclosed on the record, the defendant obtained them. The frontal photograph of the defendant's face shows the defendant with a moustache. The photograph would have aided the defendant in the impeachment of the principal witnesses against him. The Commonwealth grants that the photographs were exculpatory (Commonwealth v. Ellison, 376 Mass. 1, 21-22, 379 N.E.2d 560 [1978] ), but argues, that, in light of the evidence tending to show that the defendant was guilty, a new trial is not required. ¹

Citing the rule stated in Commonwealth v. Gallarelli, 399 Mass. 17, 21, 502 N.E.2d 516 (1987), and cases cited, both the motion judge (who was not the trial judge) and the Appeals Court (Commonwealth v. Tucceri, 30 Mass.App.Ct. 954, 955, 956, 571 N.E.2d 48 [1991] ) ruled that the prosecution's failure to disclose the exculpatory evidence required a new trial, even though the defendant did not specifically move for its production. We agree and conclude that it is time for this court to expand on the appropriate considerations in cases in which the prosecution had evidence that would have assisted the defendant but did not disclose it. One reason for presenting a more extensive explication of these considerations is that our views have not developed in parallel with those of the Supreme Court of the United States in cases involving prosecutorial failures to disclose exculpatory evidence.

We shall discuss (1) the reasons why the prosecution must depart from a totally adversary role in cases of this sort, (2) the interrelationship of common law and constitutional principles in the decision of such cases, (3) the role of defense counsel and the relationship of any omissions of defense counsel to the prosecution's nondisclosures, (4) the significance, in deciding whether any error was reversible error, of the fact that the case was tried to a jury, and (5) the standard to be applied in deciding whether, in particular circumstances, a new trial may or should be ordered because admittedly exculpatory evidence was not provided to the defendant (and thus was not disclosed to the jury). Of all these concerns, the last is the most problematic because, on such a fact-based issue, a universal guide as to when prosecutorial error requires a new trial cannot be fashioned except in general terms and because the outcome of a nondisclosure case may depend on seemingly minor word differences in expressing the standard for measuring prejudice to a defendant's case. ²

1. The governing principles. Due process of law requires that the government disclose to a criminal defendant favorable evidence in its possession that could materially aid the defense against the pending charges. The Supreme Court of the United States announced the prosecution's constitutional obligation to disclose material, exculpatory evidence in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), where the defendant had requested specific evidence. InUnited States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court provided protections for defendants who only generally requested exculpatory evidence or made no request at all. The Agurs opinion distinguished between a specific request and a general request for exculpatory evidence in determining whether the prosecution's omission warranted a new trial. When the unsatisfied request was specific, a new trial would be required if the undisclosed evidence "might have affected the outcome of the trial." Id. at 104, 96 S.Ct. at 2398. If there was no request or if, as here, only a general request was made, a new trial would be required only if the undisclosed evidence "create[d] a reasonable doubt which did not otherwise exist." Id. at 112, 96 S.Ct. at 2402. In Commonwealth v. Ellison, 376 Mass. 1, 23-24, 379 N.E.2d 560 (1978), Justice Kaplan discussed some of the uncertainties the Agurs opinion created. ³

In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court adopted a single standard of prejudice (what it calls materiality) for all prosecutorial nondisclosure cases. See id. at 682, 105 S.Ct. at 3383; id. at 685, 105 S.Ct. at 3385 (White, J., concurring in part in the judgment). That unitary standard, taken from Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), which in turn relied on the no request or no-specific request test of the Agurs case, states that "[t]he evidence is material [i.e. requires a new trial] only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3383. ⁴ In Commonwealth v. Gallarelli, 399 Mass. 17, 502 N.E.2d 516 (1987), this court declined to adopt the Bagley "one size fits all" test as a matter of State law and adhered to the Agurs test for determining the consequences of a prosecution's failure to comply with a specific request for exculpatory evidence. Id. at 21 n. 5, 502 N.E.2d 516. See Commonwealth v. Daye, 411 Mass. 719, 728-729, 587 N.E.2d 194 (1992).

There are several forces at work in prosecutorial nondisclosure cases. First, when the question arises posttrial, there is a public interest in the finality of judgments. New trials should not be granted except for substantial reasons. Second, prosecutors, who are agents of the State and often have access to information that defendants may not have, should be encouraged to disclose exculpatory evidence that in fairness defendants should have for their defense. Of course, a prosecutor cannot always know that a particular piece of evidence is or might be exculpatory. ⁵ A rule that encourages prosecutors to make pretrial disclosures of obviously or even arguably exculpatory material would not only promote fair trials ⁶ but would also help to avoid the difficulties of post-trial judicial review. Judges, therefore, should be sensitive to the allowance of motions for the disclosure of specific information claimed to be exculpatory. A prosecutor's duty, however, extends only to exculpatory evidence in the prosecutor's possession or in the possession of the police who participated in the investigation and presentation of the case. See Commonwealth v. Daye, 411 Mass. 719, 734, 587 N.E.2d 194 (1992). Third, when the omission of the prosecution is knowing and intentional or follows a specific request, a standard of prejudice more favorable to the defendant is justified in order to motivate prosecutors to be alert to defendants' rights to disclosure. It is this reason that underlies this court's rejection of the Bagley rule and our adoption of the specific request standard of the Agurs opinion as State law. See Commonwealth v. Gallarelli, supra, 399 Mass. at 21 n. 5, 502 N.E.2d 516. In such cases, we overlay a prophylactic rule upon common law and due process fairness standards that lessens the burden in proving prejudice. ⁷ We acknowledge that these disclosure requirements are inconsistent with the traditional adversary role of litigants. But the duties of a prosecutor to administer justice fairly, and particularly concerning requested or obviously exculpatory evidence, go beyond winning convictions. See Commonwealth v. Wilson, 381 Mass. 90, 109, 407 N.E.2d 1229 (1980). See also S.J.C. Rule 3:08, PF 7, 382 Mass. 800 (1981) (standards relating to the prosecution function, disclosure of evidence by prosecutor).

2. Common law and constitutional principles. In deciding whether a defendant is entitled to a new trial because the prosecution failed to turn over exculpatory evidence, State judges are not limited to constitutionally based principles. The opinions of the Supreme Court of the United States that we have cited previously in this opinion are concerned with defendants' Federal...