Commonwealth v. Tate

• Decision Date: 22 August 2022
• Docket Number: SJC-13227
• Citation: 490 Mass. 501,192 N.E.3d 1034
• Parties: COMMONWEALTH v. Will TATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

490 Mass. 501

192 N.E.3d 1034

COMMONWEALTH

v.Will TATE.

SJC-13227

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 6, 2022

Decided August 22, 2022

Matthew H. Feinberg, Boston, for the defendant.

Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.

Merritt Schnipper, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

GEORGES, J.

In this case, we are asked to decide whether a defendant is entitled to a new trial on the ground of ineffective assistance of counsel where, prior to trial, defense counsel disclosed confidential information to the Commonwealth concerning the location of what became key incriminating evidence. This decision rests in part upon a determination whether, prior to counsel's disclosure, the defendant had given counsel his informed consent to make it.

We conclude that because trial counsel did not present the defendant with any option other than disclosing the existence of the incriminating objects, the defendant's purported consent to the disclosure was neither adequately informed nor voluntary. See Mass. R. Prof. C. 1.0, 471 Mass. 1305 (2015). Moreover, where trial counsel mistakenly believed that he had a duty to disclose the confidential, incriminating information to the Commonwealth, and did not obtain the defendant's informed consent prior to making that disclosure, an actual conflict of interest existed that rendered the representation constitutionally ineffective. See Commonwealth v. Perkins, 450 Mass. 834, 854, 883 N.E.2d 230 (2008). Accordingly, the order denying the defendant's motion for a new trial must be vacated and set aside, and the matter remanded to the Superior Court for a new trial.¹

1. Background. a. Shooting. The jury could have found the following. On the evening of January 4, 2014, the victim, David Rodriguez; his sister, Jasmine Ward; and their mother, Reina Rodriguez,² were socializing and drinking alcohol together in the family's apartment in Fall River. At some point, Ward informed the victim that she had plans later that evening to meet with the defendant, who was her former coworker. The victim's former girlfriend, Kendra Lopes, also had worked for the same company at the same time as the defendant, and the victim was aware that the defendant previously had tried to establish a sexual relationship with Ward and Lopes. Upon learning of Ward's plans to meet the defendant, the victim insisted that Ward instead stay with him that night, and Ward agreed to do so. Ward nonetheless continued sending text messages to the defendant, who had arrived at the apartment complex to meet with her.

Surveillance video footage from the security cameras at the apartment building shows that, at 12:40 A.M. on January 5, 2014, the victim left the elevator at the first-floor lobby. He walked toward an entrance to the building and gestured for someone to come inside. The defendant then entered the building and followed the victim into the laundry room. After several minutes, both men left the laundry room, and the defendant appeared to leave the building.

At around the same time, Ward, who had remained in the victim's apartment, had started feeling sick and went to the bathroom to vomit. When the victim returned to the apartment, he did not see Ward and did not know where she was. He left the apartment again and went back to the first floor, where he saw the defendant's vehicle drive past the main entrance.

The victim ran outside with his cellular telephone in his hand. As he did so, he was shot twice by the defendant; one bullet struck him in the chest, and the other in the right thigh. The defendant quickly left the scene. The victim died before paramedics arrived.

The investigation soon focused on the defendant. Because the defendant was living at his mother's house in Rhode Island at the time of the shooting, Massachusetts State police officers sent a request to the Rhode Island State police to locate him. On the morning following the shooting, the defendant, his mother, and his sister were driving towards the Fall River police station, where he planned to turn himself in, when the vehicle was stopped by Rhode Island State police troopers. The troopers ordered all three individuals from the vehicle and placed the defendant in handcuffs. Without advising the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), one of the troopers, referencing the firearm used in the shooting the previous evening, asked the defendant, "Where's the gun?" to which the defendant responded, "I threw it off the Braga bridge."

The troopers transported the defendant to Rhode Island State police headquarters, where he made several spontaneous statements regarding the shooting before he was left alone in his holding cell. The defendant was arraigned as a fugitive the following day, at which point he waived the rendition process and was transported to Massachusetts.

b. Trial proceedings. The following month, in February of 2014, the defendant was arraigned in the Superior Court on charges of murder, G. L. c. 265, § 1 ; carrying a firearm without a license, G. L. c. 269, § 10 (a ) ; and carrying a loaded firearm without a license, G. L. c. 269, § 10 (n ). Trial took place between March 28 and April 7, 2016. The Commonwealth proceeded on theories of deliberate premeditation and extreme atrocity or cruelty; the theory of defense was self-defense.

Among other evidence, the jury heard from a State police trooper who testified that, in August of 2014, while executing a search warrant at the defendant's mother's home in Rhode Island, officers recovered a locked box in the basement. Inside the box, they found a semiautomatic handgun with a laser pointer attachment, a box of .40 caliber ammunition, and a magazine that contained several rounds of .40 caliber ammunition. Bullets recovered from the victim's body were tested and determined to have come from the gun found in the box. The lawful owner of the gun, a friend of the defendant who was living in another State, testified that the defendant stole the gun from him. The friend also testified that the laser pointer attachment that came with his purchase of the gun allows a user to see where the gun is aimed.

The jury convicted the defendant of the lesser included offense of murder in the second degree, as well as possession of a firearm without a license and possession of a loaded firearm without a license. He filed a timely notice of appeal.

c. Posttrial proceedings. In September of 2019, represented by newly appointed appellate counsel, the defendant filed a motion for a new trial on the ground of ineffective assistance of his trial counsel. In July of 2020, the trial judge conducted an evidentiary hearing on the motion. The defendant and his mother both submitted sworn affidavits prior to the hearing, and trial counsel testified as the sole witness. In October of 2020, the motion was denied, and the defendant appealed from that denial. The defendant's appeal from the denial of the motion for a new trial was consolidated with his direct appeal, and we transferred the matter to this court on our own motion.

2. Discussion. In his motion for a new trial, the defendant argued that he had been denied the effective assistance of counsel because, prior to trial, his counsel disclosed to the Commonwealth that the gun the defendant used to shoot the victim was in the defendant's mother's basement. The defendant maintained that this breach of the duty of confidentiality "irreparably prejudiced" him by exposing the jury to information that he had stolen the gun, that he had lied to police about the location of the gun, and that the gun had had a laser attachment that assisted with accuracy in shooting. According to the defendant, the introduction of this evidence of prior bad acts and bad character essentially forced him to testify at trial, and thus to waive his right to remain silent. The defendant also argued that trial counsel's agreement with the Commonwealth that counsel would not file a motion to suppress the defendant's statement to police that he had thrown the gun off a bridge, in exchange for the Commonwealth not introducing spontaneous statements that the defendant made regarding his involvement in the shooting during an interview at the Fall River police station, constituted ineffective assistance of counsel. In addition, the defendant contends in his direct appeal that his convictions under G. L. c. 269, § 10 (a ), which prohibits carrying a firearm without a license, and G. L. c. 269, § 10 (n ), which prohibits carrying a loaded firearm without a license, are duplicative.

a. Motion for a new trial. "[W]e review a judge's denial of a defendant's motion for a new trial to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Caldwell, 487 Mass. 370, 374, 167 N.E.3d 852 (2021). Where an evidentiary hearing is conducted on a motion for a new trial, we "accept the [judge's] findings where they are supported by substantial evidence in the record," and we "defer to the judge's assessment of the credibility of witnesses" (citations omitted). Commonwealth v. Jacobs, 488 Mass. 597, 600, 174 N.E.3d 1200 (2021). We afford "special deference ... to both factual findings and the ultimate decision where, as here, the motion judge was also the trial judge." Commonwealth v. Tinsley, 487 Mass. 380, 385, 167 N.E.3d 861 (2021), citing Commonwealth v. Lane, 462 Mass. 591, 597, 970 N.E.2d 284 (2012). Other than for a conviction of murder in the first degree, a defendant seeking a new trial based on ineffective assistance of counsel must demonstrate that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer." See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).

i. Motion...