Com. v. Vaughn

• Decision Date: 04 August 1992
• Docket Number: No. 88-P-903,88-P-903
• Citation: 32 Mass.App.Ct. 435,590 N.E.2d 701
• Parties: COMMONWEALTH v. Daniel F. VAUGHN.
• Court: Appeals Court of Massachusetts

Page 701

590 N.E.2d 701

32 Mass.App.Ct. 435

COMMONWEALTH v. Daniel F. VAUGHN.

No. 88-P-903.

Appeals Court of Massachusetts,

Plymouth.

Argued Feb. 6, 1992.

Decided April 24, 1992.

Further Appellate Review Granted

Aug. 4, 1992.

Martin J. Newhouse, Boston (James B. Haines, with him), for defendant.

Robert C. Thompson, Asst. Dist. Atty., for the Com.

Before BROWN, DREBEN and GREENBERG, JJ.

BROWN, Justice.

The Constitution requires both that a criminal defendant be given a fair and impartial trial and that the government's conduct of the trial be free from all that is deliberately devious or inconsistent with the highest standards of professional conduct. Cf. Commonwealth v. Paiva, 16 Mass.App.Ct. 561, 563, 453 N.E.2d 469 (1983) (a defendant is entitled to " 'impartial trial by jury' ..., which all parties should ... strive to make impeccable"). See also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Commonwealth v. Tucceri, 412 Mass. 401, 408, 589 N.E.2d 1216 (1992) ("the duties of a prosecutor to administer justice fairly ... go beyond winning convictions"). We believe the Commonwealth's efforts in this case fell so far short of that constitutional imperative that we are obliged to set aside the verdicts and to order a new trial. Compare Commonwealth v. Ellison, 376 Mass. 1, 3, 379 N.E.2d 560 (1978).

The defendant was convicted by a Superior Court jury of burglary and of burning a dwelling house. He argues on appeal that his motion for a mistrial, made after a key prosecution witness changed a material part of his testimony with no prior disclosure to defense counsel, was improperly denied. He argues also that certain jury instructions created a substantial risk of a miscarriage of justice, that he was denied effective assistance of counsel, and that his motion for a new trial, based on newly discovered evidence, should have been allowed. We conclude that the defendant's motion for a mistrial was improperly denied and that he is entitled to a new trial. We address briefly the other issues raised on appeal only insofar as they may have relevance on retrial.

The record reveals the following. During the early morning hours of February 22, 1986, the victim, Dorothy Quinn, awoke to the sound of two male voices in the hallway outside her bedroom in her three-story house in Marshfield. Fearing that the intruders would hear her if she tried to call the police, Quinn climbed onto the floor next to her bed in an attempt to hide. Quinn testified at trial that the two men came into her bedroom and went through her bureau and closet, apparently looking for jewelry and other valuables. She heard the screech of a smoke alarm and then noticed that the closet in her bedroom was on fire. When the two men left her bedroom, she got up from the floor, jumped out of the bedroom window to the ground some four feet below, and ran to a neighbor's house to call the police and fire departments. ¹ Quinn never saw the individuals who were in her house.

During his investigation of the crime scene, Officer Romano of the Marshfield police department found several pieces of jewelry underneath a window in the back of the house. He observed footprints coming down a slope towards that window and then going back up the slope. He followed two sets of footprints, he testified at trial, one through a fence to some stairs and out to Upland Road and another around a pool, through a fence, across a field, and out to Elm Street. One set of footprints had a star-like design on them; the other set had a ridge-like design on them.

Detective Teague also investigated the crime scene and prepared a police report on his investigation. The report described "two sets" of footprints which he had observed at the house: one from a size twelve work boot with two stars in the center of the heel, and the other from a size nine sneaker with a wavy print. Before the grand jury, Teague testified that he observed "two sets of footprints on the ground."

At trial, however, Teague's testimony changed: Asked to describe the tracks at the crime scene, he described three sets of footprints--one set with a star impression, another of a "wavy type," and a third with "little small circles or wavy type prints, ... similar to the second set." He then, using a chalkboard, described where the tracks were found. The prosecutor asked, "Now, behind the house, did you see a set that was different from the two you have just described?" Defense counsel objected. The objection was overruled, and Teague again described three sets of footprints.

Shortly thereafter, defense counsel moved for a mistrial ² on the grounds that she had not previously been notified of the existence of the third set of footprints, that Teague's testimony was inconsistent with his police report and with his grand jury testimony, and that she had been unfairly surprised by his testimony at trial. The judge denied the motion and suggested that counsel use the prior inconsistent statements for impeachment purposes on cross-examination.

During the continued direct examination of Teague which followed, Teague authenticated one of the photographs taken at the house that night as depicting two different footprints, "one on top of the other." In addition, he testified that that same photograph, which was admitted in evidence, over the defendant's objection, as exhibit 19, depicted the third set of footprints to which he had alluded previously.

On cross-examination, Teague acknowledged that in his police report and at the grand jury hearing he had mentioned only two sets of footprints and that he had never mentioned a third set of footprints until he took the witness stand at trial.

Two codefendants, Steven Crowley and Jeff Colby, who had pled guilty to their involvement in this crime, testified for the Commonwealth at Vaughn's trial and implicated Vaughn as the instigator of the crime. A third government witness, one Judson Hill, testified at trial that, several days after the break-in, Vaughn admitted to him his involvement in the burglary at the Quinn house.

Vaughn testified in his own defense that he was at home in bed at the time of the incident. He denied having had the conversation with Judson Hill.

James Harrington, an assistant investigative officer for the Plymouth County bureau of criminal investigation, testified for the defense that he had taken photographs at the scene for the police and fire departments and that he had observed only two sets of footprints at the scene of the crime.

1. Motion for mistrial. The defendant asserts that there was a failure to disclose material exculpatory evidence, in violation of the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that there was a failure to disclose promptly changes of substance in the statements of prospective witnesses, in violation of Mass.R.Crim.P. 14(a)(4), 378 Mass. 875 (1979), and that he was unfairly surprised by this material change in the Commonwealth's case and thus deprived of the ability effectively to investigate and counter the new evidence.

"Due process is violated if the government withholds evidence that is both exculpatory and material to the issue of the defendant's innocence." Commonwealth v. Bryant, 390 Mass. 729, 746 n. 23, 459 N.E.2d 792 (1984). In addition, the Commonwealth expressly agreed, as it is required to do, that it would disclose all exculpatory information within its possession, custody, or control to the defendant prior to trial. See Mass.R.Crim.P. 14(a)(1)(C), 378 Mass. 874 (1979). The Commonwealth, however, takes the position that here there was no failure to disclose. Asserting that the defendant knew all along that there would be evidence of three sets of footprints introduced at trial and that there was no unfair surprise as a result of Teague's change in testimony, the Commonwealth would have us view this case as merely a misinterpretation by the defendant of the actual physical evidence against him. (Alternatively, the Commonwealth characterizes this matter as one of late disclosure.) Only the most imaginative reading of the evidence could lead one to believe that the defendant had notice that evidence of three sets of footprints would be introduced at trial. The police report prepared by Teague, as well as his testimony before the grand jury and the diagram prepared by Officer Romano all depict only two sets of footprints at the crime scene.

Teague's change in testimony, that suddenly he had evidence of three footprints, is more than a mere "shift[ ] in detail only" and goes to the heart of the defendant's case. See Commonwealth v. Baldwin, 385 Mass. 165, 174, 431 N.E.2d 194 (1982). Not only had the tardily disclosed evidence been "developed for the sole purpose of investigating the crime[s] at bar" (Commonwealth v. Gallarelli, 399 Mass. 17, 22, 502 N.E.2d 516 [1987] ), but also it "directly concerned the defendant's participation in the crimes." Commonwealth v. Adrey, 376 Mass. 747, 754, 383 N.E.2d 1110 (1978) (referring to Commonwealth v. Ellison, 376 Mass. at 18-20, 379 N.E.2d 560). There is no question that evidence tending to impeach Detective Teague's credibility "is exculpatory for the defendant and is clearly material." Commonwealth v. Liebman, 388 Mass. 483, 489, 446 N.E.2d 714 (1983). See also Commonwealth v. Collins, 386 Mass. 1, 8, 434 N.E.2d 964 (1982). "Although the evidence was more incriminating than the earlier statements, it was exculpatory in the sense that the variance with the previous statements permitted 'challenge[ ] [to] the credibility of a key prosecution witness.' " Commonwealth v. Vieira, 401 Mass. 828, 832 & n. 5, 519 N.E.2d 1320 (1988), quoting from Commonwealth v. Ellison, 376 Mass. at 22, 379 N.E.2d 560. ³ We ought not have to remind the Commonwealth once again "to do the right thing." It must certainly be aware by now of its continuing duty "to disclos[e] all material which is even possibly...