Commonwealth v. Upton
| Decision Date | 19 February 2020 |
| Docket Number | SJC-11459 |
| Parties | COMMONWEALTH v. Robert L. UPTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Theodore F. Riordan (Deborah Bates Riordan also present), Quincy, for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.
Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
A jury convicted the defendant, Robert L. Upton, of murder in the first degree on the theories of deliberate premeditation and felony-murder with the predicate felony of attempted armed robbery, for shooting the brother of his sister's husband. The jury also convicted the defendant of aggravated assault and battery by means of a dangerous weapon, and of armed assault in a dwelling house. On appeal, the defendant contends that newly discovered evidence comprised of, among other components, subsequent contradictory testimony by the Commonwealth's key witness indicates that the prosecution failed to disclose a plea agreement at the time of trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the Superior Court judge erred in denying his second motion for a new trial without an evidentiary hearing on the matter.1 Because we find no abuse of discretion, we affirm. We also affirm the defendant's convictions and decline to exercise our authority under G. L. c. 278, § 33E, to reduce or set aside the verdict on the murder conviction.
Background. We recite facts that the jury could have found and that are necessary to resolve the defendants' appeal, reserving some facts for later discussion. Commonwealth v. Barry, 481 Mass. 388, 390, 116 N.E.3d 554 (2019), cert. denied, ––– U.S. ––––, 140 S.Ct. 51, 205 L.Ed.2d 69 (2019).
On the night of September 29, 2009, the defendant and his nephew, Christopher Manoloules, went to the Hyannis house of the victim, Aris Manoloules. The next day, the police found the victim shot four times, including once in the back of his head.
The murder plot involved a complicated family dynamic stemming from the 2007 death of the family matriarch, who had had three children: Treefon Manoloules, Irene Manoloules, and the victim. The matriarch bequeathed her entire $2 million estate to the victim, who had been her sole caretaker while she suffered from multiple sclerosis. The defendant's sister joined the Manoloules family by marrying Treefon, and Christopher, who was seventeen at the time of the murder, was their son.2
Christopher was a troubled youth, and his father exacerbated those problems. Christopher testified that when he was fifteen years old, Treefon had him illegally drive a vehicle and buy bulk amounts of marijuana. In addition, after the death of Christopher's grandmother, Treefon, who wanted his share of the inheritance, involved Christopher in several unsuccessful plots to kill the victim, including by a heroin overdose. Through these troubles, the defendant remained largely absent from Christopher's life until 2009.
In May 2009, the defendant moved in with his girlfriend. Between then and September 2009, the defendant experienced significant financial difficulty, including the loss of his job in July. He owed his girlfriend's father $10,000, and a car dealership repossessed, for lack of payment, a $77,000 Mercedes vehicle that he had purchased for his girlfriend in July 2009. It was during this time that Treefon reached out to the defendant to mentor Christopher.
During the week leading up to the murder, the defendant, in short order, fostered a criminal entrepreneurship in his nephew. The defendant informed Christopher that an individual was going to kill the defendant's older daughter if the defendant did not repay a debt of $165,000. As this alleged threat involved his cousin, Christopher wanted to help. The defendant proposed several plans to obtain the money, including theft of automobiles. Christopher asked one of his friends to assist in the endeavor. When, after a couple of days, the threesome failed to obtain money illicitly, Christopher spoke to Treefon about the defendant's predicament.
With Christopher and Christopher's friend present, Treefon offered to pay the defendant $165,000 to kill the victim by shooting him. On the day of the murder, Treefon insisted that the defendant purchase a gun; the defendant complied, buying a nine millimeter Ruger pistol and a box of ammunition. Treefon told Christopher to use a ruse to convince the victim to allow Christopher, with the defendant in tow, to visit the victim at his Hyannis house. Despite having offered to pay the defendant to kill the victim, Treefon assured Christopher that the real plan involved only stealing the matriarch's jewelry.
Christopher testified that the defendant drove him to the victim's house. They entered through the unlocked front door, and then sat with the victim in his family room. Christopher excused himself on the pretense of going to the bathroom, but he instead proceeded to search the victim's bedrooms for the jewelry. Finding none, Christopher called the defendant into the kitchen, informed him that there was no jewelry, and asked to leave. The defendant pulled out the Ruger, cocked the hammer, and walked back into the family room where the victim was watching a Red Sox game. Christopher heard four gunshots.
After the murder, the defendant dropped off Christopher at his parent's home and spoke to Treefon. The defendant returned to his girlfriend's home at around 1:30 A.M. on September 30, 2009. That afternoon, the defendant's girlfriend arrived home from work, saw the defendant cleaning a disassembled gun on a table, and asked him to remove it. Approximately ten to fifteen minutes later, she saw that the gun was gone.
That same day, Treefon requested that the police conduct a wellness check on the victim. Shortly after 5:35 P.M. , the police discovered the victim's body on the floor of his family room, with four spent shell casings in the area. At around midnight, the police arrested Christopher at his parents' house.
On October 1, 2009, the police interrogated the defendant, and he told a story littered with inconsistencies and denials. He admitted to buying the Ruger and ammunition on September 29, 2009, but claimed that he had not seen the gun or ammunition since that night after he locked the gun in a case and placed the case and the ammunition in the trunk of his car. The defendant also denied being present on Cape Cod on the night of the murder, but later acknowledged that he drove there with Christopher. The defendant subsequently admitted to dropping Christopher in a Hyannis parking lot between 9 P.M. and 10 P.M. so that Christopher could meet with an unidentified individual. The defendant stated that he had remained in the vehicle. He justified his earlier misleading statements as an attempt to protect Christopher, and he never provided details about being at the victim's house.
On December 11, 2009, the Commonwealth indicted Christopher for murder in the first degree, assault by means of a dangerous weapon with the intent to murder, aggravated assault and battery with a deadly weapon, and armed assault in a dwelling. On December 18, 2009, the Commonwealth indicted the defendant on the same charges.
In July 2010, Christopher decided to cooperate with the police investigation and the prosecution. He told investigators about Treefon's orchestration of the murder plot and identified the defendant as the shooter. Christopher then testified for the Commonwealth at Treefon's trial for murder,3 but the jury acquitted his father on all counts.
At the defendant's trial in January 2013, Christopher served as the Commonwealth's key witness. On the first day of trial, the defendant filed a motion in limine for an evidentiary hearing regarding undisclosed promises, rewards, and inducements to Christopher for his testimony, supported by an attorney's affidavit and a letter that Christopher's attorney sent to the prosecutors before trial admonishing their disclosure practices. However, the defendant then agreed to proceed to trial without a ruling on the motion.4 Once on the stand, Christopher testified to the defendant's guilt, and denied doing so for any quid pro quo with the Commonwealth. In May 2013, four months after the defendant's trial concluded, Christopher nonetheless pleaded guilty, inter alia, to manslaughter instead of murder, and received a sentence of from twelve to fifteen years.
The Commonwealth did not rely solely on Christopher's testimony to tie the defendant to the murder. Christopher's friend testified that he had heard Treefon offer to pay the defendant to kill the victim. In addition, forensic evidence established that the defendant's Ruger fired the bullets that killed the victim. According to the testimony of the defendant's girlfriend, she found the gun in her basement days after the defendant's interrogation and believed that the defendant had hidden it there after she demanded that he remove it from her home. Moreover, the Commonwealth's ballistics expert testified that four bullets were missing from the defendant's ammunition case, and that the bullets in the ammunition case were the same type of ammunition fired from the defendant's Ruger at the victim.
The Commonwealth also established that the defendant suffered from substantial financial woes, discussed supra. Significantly, on the day of the murder, the defendant sent a text message to a salesperson at the Mercedes dealership, in which the defendant expressed his belief that he would soon have enough money to pay for the Mercedes, and in which the defendant also stated that he would be getting the money from his "brother-in-law." The defendant did not testify.
Discussion. 1. Standard of review. Because we consider the "defendant's direct appeal from a conviction of murder in the first degree together with an appeal from the denial of a motion for a new...
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