Commonwealth v. Bonnett
| Decision Date | 23 August 2019 |
| Docket Number | SJC-11496 |
| Citation | 482 Mass. 838,129 N.E.3d 847 |
| Parties | COMMONWEALTH v. Darkens BONNETT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Amy M. Belger, Holliston, for the defendant.
David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
The defendant, convicted of murder in the first degree in the 2009 shooting death of Vincent Gaskins, appeals from the denial of his second motion for a new trial. The defendant previously brought a consolidated appeal from the denial of his first motion for a new trial and his conviction. He claimed error in, among other grounds, the Commonwealth's failure or inability to disclose to him the name of a confidential informant who appeared to have information about the murder. While otherwise rejecting the claims of error at trial as to the record then before us and declining to provide relief under G. L. c. 278, § 33E, we agreed that the defendant's pretrial motion to obtain the identity of a confidential informant had been denied without proper appraisal. See Commonwealth v. Bonnett, 472 Mass. 827, 849-851, 37 N.E.3d 1064 (2015) ( Bonnett I ). We accordingly remanded for a hearing under the framework set forth in Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). See Bonnett I, supra at 846–850, 37 N.E.3d 1064. We noted that if "new circumstances permit[ted] the informant's identity to be disclosed ..., the defendant [could] seek a new trial upon a showing that newly discovered evidence would probably have been a real factor in the jury's deliberations." Id. at 850, 37 N.E.3d 1064 n.26.
Because the requisite disclosures concerning the identity of the confidential informant had been made by the time of the rehearing, the defendant did not pursue a full Roviaro inquiry; he instead brought a second motion for a new trial in light of the newly available evidence. The new evidence in essence consisted of inculpatory statements assertedly made to three individuals by the now-deceased Brandon Payne, who also was present on the night of the shooting. After an evidentiary hearing on the motion for a new trial, in which a judge heard from the previously confidential informant and from two of the defendant's friends, the motion judge found that the defendant had not met his burden of showing that the new evidence was material and credible, or that it cast real doubt on the justice of his conviction.
On appeal before us, the defendant argues that the motion judge abused his discretion in denying the second motion for a new trial. Discerning no clear error or abuse of discretion, we affirm the judge's decision. We also decline to exercise our power under G. L. c. 278, § 33E, to reduce the verdict or to grant a new trial.
1. Background and procedural posture. The facts underlying the defendant's conviction are set forth in detail in Bonnett I, 472 Mass. at 828-832, 37 N.E.3d 1064. We focus our discussion on pertinent facts, supplementing as necessary, where relevant to the issues in this appeal.
a. The trial. On November 22, 2009, at approximately 1 A.M. , the victim was shot and killed in a parking lot across the street from a nightclub in Lynn. Surveillance footage taken from establishments located near the crime scene showed the shooting from a distance; the footage, however, was grainy and of poor quality.
The Commonwealth's case at trial centered on the testimony of the victim's cousin, Sheffery Johnson, who described the events that night.1 Johnson testified that, on the evening of the shooting, she picked up Brandon Payne in her truck and they drove to a parking lot located across the street from the nightclub.2 As they sat talking, Johnson saw the victim leaving the nightclub with his girlfriend. They were with or near a "dark skinned" man wearing a gray sweat suit, who Johnson identified at trial as the defendant.3
The victim and his girlfriend walked over to Johnson's truck, where several others had congregated after leaving the nightclub. As there had been tension between Payne and the victim following an altercation several months earlier, the two began arguing, and eventually ended up outside, at the back of the vehicle. Johnson watched them through the rear view mirror, and then got out to join them. Shortly thereafter, she noticed someone "pass [her]" and join the group; she was not focused on who it was.
During the argument, the victim suggested that he and Payne go around the corner and fight. After Johnson announced that there would be no fighting, she grabbed Payne and swung him around to get back into the vehicle. As soon as her back was turned, Johnson testified that she heard a "pop" from the direction in which the victim had been standing. When she turned around to face the victim, she saw the defendant standing over him, tucking a gun into his pants, and then running toward Tremont Street, with a group of about ten others.4 At that point, Johnson was screaming at Payne because his friend had just shot her cousin.
Although no other witnesses who had been present that night were called to testify at trial, Johnson's testimony was corroborated, in part, by statements the defendant later made to Joseph Burns. Burns and the defendant knew each other because the defendant typically bought guns from Burns, in exchange for drugs.5 When the defendant and Burns met up after the shooting, Burns inquired about that night. The defendant said that he and the victim "had words after the club," and that the defendant subsequently "shot him in the face." Burns also provided details about the shooting that were not public knowledge at the time.6 The Commonwealth presented testimony from the defendant's roommate, Thomas Arrington, who had seen the defendant with guns in the apartment on several occasions. Arrington had asked the defendant if he was involved in the shooting, and the defendant shrugged.
The testimony also was corroborated by forensic evidence. A .22 caliber firearm, which had been discarded in nearby bushes on Tremont Street, was discovered by police shortly after the shooting. Two latent prints and a deoxyribonucleic acid (DNA) profile were recovered from the firearm. A forensic examiner opined that the palm print, found on the back of the firearm, matched the defendant's.7 The major DNA profile taken from the firearm also matched the defendant's.8 The jury returned a verdict of guilty of murder in the first degree on a theory of deliberate premeditation.
b. Disclosure of the confidential informant. Shortly before trial, the defendant's counsel had received a copy of a redacted report prepared by the Federal Bureau of Investigation (FBI). The report stated that a "cooperating witness" had heard that the "word on the streets of Lynn" was that "PAYNE shot and killed [the victim]," and that, at Payne's request, the defendant had disposed of the weapon after the shooting.
Defense counsel moved for an order requiring disclosure of the informant's identity, and a judge asked the Commonwealth to inquire whether the officials were able to disclose the information. After speaking with Federal officials, the prosecutor reported that the government was unable to disclose the informant's identity at that time, due to an ongoing investigation.9 The judge stated that he could not compel the Federal government, as a "separate sovereign," to disclose the information, and accordingly denied the defendant's motion. Defense counsel was precluded from inquiring at trial about the contents of the report or the informant's identity.
Following the remand in Bonnett I for a proper determination whether disclosure of the informant's identity was necessary, the Commonwealth provided the defendant with the informant's name, Victor Bizzell, along with a recording of a recent police interview with Bizzell. The defendant also obtained an unredacted copy of the FBI report. In light of this, the Commonwealth, the defense, and the judge appeared to agree that the Roviaro issue was "sort of a moot point."
c. Roviaro hearing. In June 2016, a Superior Court judge nonetheless conducted the first stage of a Roviaro hearing as though the case were being heard in 2012.10 The agent who prepared the FBI report in 2012 testified; he reported that the FBI had established a special task force to investigate gang activities on the North Shore. As part of the investigation, officers from the Lynn police department were granted "Title 21 and Title 18 authority to conduct [F]ederal investigations." The FBI provided them with various resources, including money to pay "cooperating witnesses" to conduct controlled "buys." The task force used Bizzell as one such cooperating witness.11
During one of their daily conversations, Bizzell told the agent that the "rumor on the street" was that Payne was taking responsibility for the victim's death in this case. The FBI agent subsequently pressed Bizzell for details surrounding the shooting, but Bizzell maintained that it was an unsourced rumor; that "everyone on the street [knew] it." A redacted version of the agent's report of this conversation had been provided to the defendant's counsel in advance of trial in 2012.12
The judge found that, notwithstanding the proper invocation of informant privilege, the defendant also established that the nondisclosure interfered with his right to present a defense. The judge, however, left the decision whether to continue with the second stage of the Roviaro inquiry to the parties, given its apparent mootness. The defendant did not pursue further findings; he instead filed a second motion for a new trial, based on newly available evidence.
d. Second motion for a new trial. In February and March of 2017, a third Superior Court judge held evidentiary hearings on the defendant's second motion for a new trial. The judge had before him the following: a redacted copy of the FBI report (given to the...
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