Com. v. Waters

• Decision Date: 22 May 1991
• Citation: 571 N.E.2d 399,410 Mass. 224
• Parties: COMMONWEALTH v. Jesse WATERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 399

571 N.E.2d 399

410 Mass. 224

COMMONWEALTH v. Jesse WATERS.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 5, 1990.

Decided May 22, 1991.

Max D. Stern, Boston (Dennis Shedd, Lexington, with him), for defendant.

Brian J. Carney, Asst. Dist. Atty., for Com.

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

O'CONNOR, Justice.

On May 16, 1983, the defendant, Jesse Waters, shot Boston Police Detective Frank Tarantino at a 24-Hour Store operated by Waters in Roxbury. Four days later, evidence about the incident was presented to a grand jury. Sergeant Detective William Morrissey and Detective Edward Clark testified in relevant part that Morrissey had assigned Tarantino "to investigate activities of the Roxbury 24-Hour Store" on the night of May 16. Between them, Morrissey and Clark told the grand jury that Tarantino and Clark, dressed in street clothes, had arrived at the location around 9 P.M. in an unmarked vehicle, that Tarantino had entered the store, had observed two people behind a counter selling marihuana, had purchased a pack of cigarettes, and had left the store. According to the testimony, Tarantino returned to the store with Clark and, while displaying his police badge and announcing "police," jumped onto a tonic chest at which time he was shot by the defendant. A third witness, Robin Robinson, testified that she had been purchasing dog food at the store when Tarantino was shot. She said that, before the shooting, Tarantino and Clark had shown police badges and had said loudly enough to be heard by everybody in the store that they were police officers. Robinson also testified that, after Tarantino had been shot, Tarantino said to the defendant that the defendant knew him, and that the defendant replied, "I did not know who you were; I thought you were trying to rob me." The grand jury indicted the defendant for assault and battery by means of a dangerous weapon, armed assault with intent to murder, possession of a firearm, carrying a firearm, and possession of a class D controlled substance with intent to distribute.

The several indictments were tried in the fall of 1984. The uncontradicted testimony at trial was that on May 16, 1983, Tarantino, dressed in plain clothes, entered the 24-Hour Store, leapt onto a counter, drew his gun, and pointed his gun at the clerk behind the counter. Tarantino was then shot by the defendant. The principal issue at trial was whether the defendant knew Tarantino was a police officer when he shot him or, instead, reasonably believed that it was necessary for him to come to the clerk's defense. Defense witnesses testified that Tarantino neither displayed his badge nor identified himself as a police officer before jumping onto the counter and pointing his gun at the clerk. Tarantino, on the other hand, testified that his assignment that night was "to make observations and surveillances" at the store and that, when he entered the store, he showed his badge and identified himself as an officer. Tarantino's testimony was corroborated in part by Morrissey and Clark, and in part by the customer, Robinson. The defendant was convicted of assault and battery by means of a dangerous weapon, carrying a gun, and possession of a class D substance with intent to distribute. He was acquitted of the other charges. The defendant did not appeal any of the convictions.

After he was found guilty, but before he was sentenced, the defendant approached Federal authorities with allegations of corruption within the Boston police department. He claimed that he had paid protection money to several Boston police officers, including Tarantino and George Vest, for several years so that they would not interfere with marihuana sales at his stores. He also claimed that, after the shooting incident on May 16, 1983, Vest and other Boston police officers approached him with a proposition that called for a disposition of the criminal case in a way that would be favorable to the defendant, and for Tarantino to settle his civil claim against the defendant. The quid pro quo was to be $300,000. The defendant told the Federal authorities that he had paid Tarantino $150,000 in several installments during the summer of 1984 with Vest acting as the middleman, but that, when he realized the criminal case was going forward, he discontinued payments.

Following the defendant's revelations to the Federal authorities, there was a Federal grand jury investigation. Detective George Vest was subsequently convicted of perjury as a result of his testimony before that body. In the grand jury proceedings and at Vest's trial, Detective Clark testified under immunity that he had not been assigned by Sergeant Detective Morrissey to surveillance of the 24-Hour Store on May 16, 1983, as he had testified both before the grand jury investigating the shooting of Detective Tarantino and before the petit jury trying the defendant Waters. Clark said that he had given false testimony in that regard on both occasions.

Following Vest's Federal court conviction, Waters filed in this case a motion to dismiss the indictments and a motion for a new trial. The motions were heard by the trial judge. At that hearing, Clark and Tarantino refused to testify, citing their Federal constitutional privilege against self-incrimination. The motions were grounded on the "knowing use of perjurious testimony by the prosecution and an extortion scheme." The judge denied the motion for a new trial. For reasons that are unimportant to this appeal, he denied the motion to dismiss the indictments "without prejudice," and that motion was subsequently renewed and heard by another judge. With respect to the new trial motion, the judge reasoned that "[i]n the absence of constitutional error the granting of a motion for new trial falls within the broad discretion of the trial judge," and that, in the exercise of that discretion, "it is the duty of a trial judge to give grave consideration to the credibility of [a recanting witness's] new testimony." He reasoned, too, that "a change in testimony would not require a new trial unless its credibility, potency, and [pertinence] to fundamental issues in the case demonstrated a probability that the evidence would be a real factor with the jury in reaching a decision." The judge concluded that there had been no such demonstration before him.

Several months later, another judge denied the motion to dismiss the indictments on the ground that the defendant had failed to demonstrate that the evidence "would be a real factor with the jury in reaching a decision." The judge concluded that "Detective Clark's false testimony to the grand jury as to the nature of his assignment on the night of the shooting, which I infer was to justify the presence of a fellow police officer, Detective Tarantino, on the premises of Waters' 24-Hour Store, was not the type of misconduct which, in the absence of prejudice, warrants dismissal of [the] indictments. See, generally, Commonwealth v. King, 400 Mass. 283, 292, 508 N.E.2d 1382 (1987)."

The defendant appealed the denial of the motion for a new trial and the denial of the motion to dismiss. We transferred the case here on our own initiative, and we now affirm the orders denying the defendant's motions.

We consider the defendant's motion for a new trial first. The defendant makes several arguments in support of his position that, contrary to the judge's ruling, he is entitled to a new trial. The defendant's primary argument, so characterized in his reply brief, is that "the lower court applied the wrong standard in deciding his motion for a new trial." The defendant argues that, "[i]nstead of the standard applied for newly discovered evidence--whether it is probable that the evidence would have been a real factor in the jury's decision--the appropriate standard in this case is that used when the prosecution knowingly uses perjured testimony, set forth in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); and Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) and their progeny--whether there is a reasonable likelihood that the false testimony could have affected the judgment of the jury.... There is certainly a reasonable likelihood that the false testimony of Officers Clark and Tarantino and Sgt. Morrissey could have affected the jury's decision" (emphasis in original).

The defendant correctly points out that the Commonwealth makes no attempt in its brief to counter the defendant's argument that the judge applied the wrong standard in deciding his motion for a new trial, and "simply argues that the defendant did not satisfy the more stringent standard for newly discovered evidence." However, we have considered the defendant's "wrong standard" argument and we discuss it below.

Critical to the defendant's "wrong standard" argument is that Clark's testimony at the defendant's trial was untrue, that Clark knew it was untrue when he gave it, and that he gave that false testimony as a member of the prosecution team, that is, as a representative of the State, to obtain the defendant's conviction. Quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), the defendant argues that "it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." The defendant further argues that it is immaterial whether the prosecutor knew that the testimony was false and, citing several Massachusetts cases, asserts that "actions of police officers who are involved with the indictment and prosecution of the defendant are attributable to the prosecution." See Commonwealth v. Lam Hue To, 391 Mass. 301, 311, 461 N.E.2d 776 (1984); Commonwealth v. St. Germain, 381 Mass. 256, 261 n. 8, 408 N.E.2d 1358 (1980); Commonwealth v. Manning, 373 Mass. 438, 442 n. 5, 367 N.E.2d 635 (1...