Correia v. Fagan

• Citation: 452 Mass. 120,891 N.E.2d 227
• Decision Date: 05 August 2008
• Docket Number: SJC-10084
• Parties: Humberto CORREIA v. James H. FAGAN & others.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts

891 N.E.2d 227

452 Mass. 120

Humberto CORREIA v. James H. FAGAN & others.¹

SJC-10084

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 8, 2008.

Decided August 5, 2008.

Gregory R. Barison, Boston, for the plaintiff.

Robert J. Murphy, Boston (Joel D. Hillygus with him) for James H. Fagan & another.

John P. Connell, Lowell, for William A. Brown.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

CORDY, J.

In this lawsuit, the plaintiff, Humberto Correia, alleges professional malpractice against James H. Fagan and William A. Brown, his defense attorneys in a Federal criminal proceeding.² The claims arise out of the legal representation they provided Correia in that proceeding, which resulted in his conviction of arson, mail fraud, and the use of fire in the commission of a felony. The lawsuit was filed after Correia was granted a new trial in Federal court and acquitted of all of the criminal charges.

The question before us is whether Correia presented sufficient evidence on the issue of his actual innocence (an element of the malpractice claim) to survive the defendants' motions for summary judgment. A Superior Court judge concluded that he did not. We vacate the summary judgment for the defendants.

1. The summary judgment record. The evidence in the summary judgment record includes pleadings and judicial decisions from the first and second criminal trials, and the hearing on Correia's motion for a new trial. It also includes transcripts of selected testimony from each of those proceedings, as well as affidavits and deposition testimony, the relevant portions of which are described below.

a. First trial. On July 19, 2000, a Federal grand jury returned an indictment, charging Correia with one count of arson, three counts of mail fraud, and the use of fire in the commission of a felony. On July 20, Brown filed a notice of appearance on behalf of Correia, and on August 31, Fagan also filed a notice of appearance. Both attorneys represented Correia at a six-day jury trial in Federal court, which concluded on January 30, 2002, with convictions on all five counts of the indictment.

The evidence at the trial included the following. On September 30, 1996, a fire destroyed a commercial building located at 83 ½ Broadway in Taunton (property). Correia owned the two-story property, and operated a photograph processing business on the first floor. There were two apartments on the second floor; Correia used one as a "photo studio," and was in the process of renovating the other to rent to a friend in need of housing. The night before the fire, Correia was at the property with his son, painting that apartment.

On the morning of September 30, 1996, Correia arrived at the property at approximately 8:15 A.M. He unlocked the front door, disarmed the alarm system, and turned on the paper processor allowing it to warm up before he began work at 9 A.M. Then, consistent with his daily routine, Correia went to a neighboring coffee shop to purchase a coffee and a muffin, where he saw the shopowners, Michael and Robert George. Correia returned to the property, finished his muffin, and drove to a nearby hardware store. At 8:46 A.M., Correia purchased two drill bits and a pair of work gloves. He returned to the property, put on his gloves, and began to clean the weeds growing in the parking lot. After about ten minutes, Robert George (Robert) walked out to the parking lot to help a customer carry a large order of coffee and donuts to her car. Robert stopped to say hello to Correia, and as he looked toward the property he informed Correia that "there was steam coming out of [his] building." Correia looked up and realized that the steam Robert had identified was actually smoke. He ran to the front door, took two steps inside the building, and found that it was already full of smoke. Correia began to cough and retreated outside the building. Michael George telephoned 911. Fire department records show that the call was received at 9:04 A.M.

The Taunton fire department investigated the fire and concluded that it was "incendiary in origin." Although no accelerants were found, the fire investigator found a cardboard box filled with tissue paper in what he determined to be the epicenter of the fire. The box had been preserved because a ceiling tile had fallen on top of it. The investigator hypothesized that the burn area was filled with a number of similar boxes that were purposefully ignited and then destroyed in the fire. Additionally, the investigator concluded that Correia disarmed his fire alarm system, causing a delayed response by the fire department and much greater damage to the property. The State fire marshal investigated the fire and likewise concluded that Correia intentionally started it. The fire marshal offered a similar explanation: "[i]t was our belief that the box we had uncovered with tissue paper was one of many that contained the same items and were used to start the fire in the area of origin." The government also presented evidence of Correia's debts, suggesting a financial motive to set the fire and collect the insurance on the property.

Correia testified in his defense that he neither set fire to the property nor caused anyone to do so. When asked what caused the fire, he said, "I don't know."³ He did, however, admit that he was the only one in the building on the morning of the fire.

b. Motion for a new trial. Following the jury verdict, defense counsel filed a motion for a new trial, asserting that there was insufficient evidence to support the convictions. Although the Federal judge concluded that the evidence was sufficient, she noted that the outcome of the trial "may nonetheless result in a miscarriage of justice, as [d]efendant may have been denied his Sixth Amendment right to the effective assistance of counsel." The judge, citing United States v. Wilkerson, 251 F.3d 273, 278 (1st Cir.2001), ruled that she could, sua sponte, consider the effectiveness of counsel as a basis for granting a new trial, and she ordered the scheduling of an evidentiary hearing on the matter. She advised Correia to have new counsel file an appearance. Correia retained the services of Attorney Robert George,⁴ who then represented him in the posttrial proceedings (and subsequently at his new trial).

The evidentiary hearing was held on May 17, 2002, and Fagan was the lone witness. He testified that he failed to hire an arson expert to investigate the crime and to attack the credibility of the government's witnesses, and that this decision unreasonably deprived Correia of an otherwise available ground of defense. Fagan also testified to his failure to present evidence that Correia did not have a fire alarm at his building, and that he could have called the individual who installed the alarm system, Manuel Franco, to testify that it was set up exclusively as a burglar alarm.⁵ Fagan further testified about his failure to address properly the issue of Correia's finances at trial. In particular, Fagan acknowledged that he could have presented a financial expert to demonstrate that Correia's debts were actually quite common — as they consisted mainly of mortgages on his home and business property — and that he had sufficient assets to pay both mortgages according to their terms.

The judge granted a new trial, concluding, "[b]ased on [her] own observations at trial and consequent knowledge of the facts of this case ... that defense counsels' performance `fell below an objective standard of reasonableness' and `prejudiced the defense.'"⁶ As support for this conclusion the judge provided a roster of errors. She stressed defense counsels' failure to clarify that the defendant did not have a fire alarm at the property: "A crucial factual element of the government's case was that defendant shut off his fire alarm upon coming to work .... Had the jury heard ... testimony that no such alarm had been installed, such a fact would have greatly undermined, if not disproved, the government's theory on the means by which the defendant undertook to burn down his business." She also found "defense counsels' ... attempt to rebut the government's evidence on [the cause of the fire]" to be deficient and "counterproductive."⁷

In addition, the judge highlighted two other substantial errors. The first related to an arson investigation report prepared by the insurance company. After a "full arson investigation," Travelers Insurance Company (Travelers) paid the defendant's claim. This was based on a report by John Tener, an attorney who supervised Travelers's arson investigation, and ultimately concluded that "the cause of the fire should be classified as undetermined." At trial, defense counsel unsuccessfully attempted to introduce the content of Tener's report into evidence during the cross-examination of James Hanrahan, the general adjuster for Travelers assigned to the defendant's claim. The judge pointed out that "[r]ather than present[ing] direct testimony from ... Tener himself, defense counsel simply acquiesced to the [c]ourt's hearsay ruling," excluding Hanrahan's testimony about the report.

The second error related to Correia's purported financial motive to commit the crime. The judge found that the government introduced a "highly misleading chart ... that depicted defendant's liabilities at over $270,000," without explaining the nature of those liabilities, or listing any assets that the defendant owned, and yet defense counsel failed to object to the chart, and failed to offer "any meaningful rebuttal."⁸

c. The second trial. After a new trial, Correia was acquitted by a jury of all of the charges against him. At that trial, Manuel Franco testified that he installed only a burglar alarm at Correia's property, and that the system was not equipped to detect fire or smoke. Tener also testified, stating that "there was insufficient evidence [of wrongdoing] for the Travelers to deny [Correia's] ...