Cosenza v. City of Worcester

• Docket Number: CIVIL ACTION NO. 4:18-10936-TSH
• Decision Date: 09 January 2023
• Citation: 651 F.Supp.3d 311
• Parties: Natale COSENZA, Plaintiff, v. CITY OF WORCESTER, MASSACHUSETTS, Kerry Hazelhurst, John Doherty, T.J. Coakley, Mark Richardson, Allan Burnes, Daniel Benedict, Brian Donohue, Robert Trugeon, David Grady, Darlene Rocheford, and As-Yet Unknown Worcester Police Officers, Defendants.
• Court: U.S. District Court — District of Massachusetts

651 F.Supp.3d 311

Natale COSENZA, Plaintiff, v. CITY OF WORCESTER, MASSACHUSETTS, Kerry Hazelhurst,John Doherty, T.J. Coakley, Mark Richardson, Allan Burnes, Daniel Benedict,Brian Donohue, Robert Trugeon, David Grady, Darlene Rocheford,and As-Yet Unknown Worcester Police Officers, Defendants.

CIVIL ACTION NO. 4:18-10936-TSH

United States District Court, D. Massachusetts

Signed January 9, 2023

Arthur Loevy, Pro Hac Vice, Debra Loevy, Gayle Horn, Pro Hac Vice, Imani Franklin, Pro Hac Vice, Jonathan Loevy, Pro Hac Vice, Mark Loevy Reyes, Pro Hac Vice, Steven Art, Pro Hac Vice, Kelly Jo Popkin, Locke E. Bowman, Megan Pierce, Loevy & Loevy, Chicago, IL, Chauncey B. Wood, Wood & Nathanson, LLP, Boston, MA, for Plaintiff.

Wendy L. Quinn, Courtney E. Mayo, Hassett & Donnelly, P.C., Worcester, MA, Jared J. Madison, Mirick O'Connell Demallie & Lougee, Worcester, MA, Nicholas Cantrell, City of Worcester Law Department, Worcester, MA, for DefendantsKerry Hazelhurst, John Doherty.

ORDER AND MEMORANDUM ON DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW(DocketNo. 254)

HILLMAN, DISTRICT JUDGE

Natale Cosenza("Cosenza" or "plaintiff") brought a § 1983 action alleging constitutional claims against various defendants stemming from his conviction and sixteen-year incarceration for armed burglary.At trial, the defendants were Kerry Hazelhurst("Hazelhurst") and John Doherty("Doherty")(collectively "defendants"), and four claims were presented to the jury regarding suppression or fabrication of evidence.The jury found Hazelhurst fabricated and suppressed evidence in Cosenza's criminal trial and that Hazelhurst and Doherty conspired to violate Cosenza's civil rights and awarded compensatory and punitive damages.For the reasons below, the defendants' renewed motion for judgment as a matter of law is denied.

Background

Around 4 A.M. on August 14, 2000, Melissa Horgan("Horgan") was awoken in her bedroom by an intruder.After she asked him who he was, he beat her with a hard object and attempted to climb onto her bed, but Horgan kicked the man repeatedly and he fled.Immediately after the attack, Horgan identified the attacker as a white man in his underwear, a t-shirt, with a white piece of clothing on his head, and that she had never seen him before.

The officer who responded interviewed Horgan's neighbors in her condominium building.One neighbor, Robert Payton("Payton"), told the officer he was having problems with Cosenza, and that Cosenza had previously entered the building by climbing onto a shared balcony and had knocked on several doors asking for money.Cosenza lived in a nearby building in the same complex but did not have access to Horgan and Payton's building.The officer created a report listing Cosenza as a suspect.On August 15, 2000, Hazelhurst, a detective, was assigned to the case, reviewed the officer's report, and set up a photo array with Horgan.The array used Cosenza's picture and pictures of eight men with physical characteristics similar to Cosenza.At the photo array, Horgan identified Cosenza as her attacker.In a witness statement made that day, after the photo array, Horgan identified her attacker as Cosenza.The statement also mentioned that the attacker had medium-to-short dark hair, the incidents between Cosenza and Payton, and identified Cosenza as someone who had knocked on her door.Specifically, prior to the attack, Cosenza had knocked on Horgan's door while she was not home and Horgan's roommate told her about the incident, though at the time neither knew who had knocked nor who Cosenza was.

Horgan did not remain at her apartment after the attack.On August 15, 2000, Horgan's sister and mother picked up clothes from her bedroom.On August 16, Horgan returned to her apartment with Hazelhurst and other detectives and picked up more clothes from her bedroom.During August, two of Horgan's nephews stayed at the apartment along with other male guests.There is some debate about when Horgan returned again to pick up additional clothes, but the parties agree that she did.On September 13, 2000, Horgan was emptying a bag of clothes that had been retrieved from her apartment and found a pair of shorts.Not recognizing them, she checked with her family but none of them recognized the shorts.She called Hazelhurst, who collected the shorts and sent them to the state lab to be tested.The shorts had semen stains that did not match Cosenza.Hazelhurst wrote an incident report about the shorts on September 17, 2001, after the DNA test came back negative, and told the prosecutor before Cosenza's criminal trial that he had searched the apartment for men's clothing on August 16, 2000.

Cosenza was charged was intent to rape, assault and battery with a dangerous weapon, and burglary, and was indicted on October 13, 2000.Cosenza moved to suppress the photo array as unduly suggestive, which was denied.At the suppression hearing Hazelhurst admitted that it was likely he told Horgan Cosenza's name after she identified him and that he lived in her building.At trial, the Commonwealth relied heavily on Horgan's identification and Hazelhurst testified he doubted he bolstered her identification with negative information about Cosenza.Cosenza maintained his innocence, pointing to the shorts and the unreliability of Horgan's identification.The Commonwealth argued that the shorts were left by one of the male guests who stayed in August.In addition, Hazelhurst testified that he searched the apartment for men's shorts or pants on August 16, 2000, to no avail.Cosenza was convicted of armed burglary.

Cosenza moved for a new trial, arguing that it was ineffective for his counsel to not contact all the guests who stayed at Horgan's apartment, which was denied.In 2015, Cosenza moved for a new trial, arguing that expert testimony is necessary to aid a jury in understanding the reliability of eyewitness identifications.That motion was granted.Prior to the new trial, Cosenza moved to suppress the identification, arguing the photo array was unduly suggestive, which was granted.The Commonwealth filed a nolle prosequi and the case was closed.Subsequently, Cosenza filed the instant case in this court.

Analysis

1.Motion for Judgment Notwithstanding the Verdict

"[C]ourts may only grant a judgment contravening a jury's determination when the evidence points so strongly and overwhelmingly in favor of the moving party that no reasonable jury could have returned a verdict adverse to that party."Jones ex rel. U.S. v. Mass. Gen. Hosp., 780 F.3d 479, 487(1st Cir.2015)(citation omitted).In reviewing the record during a motion for a directed verdict under 50(b), the court must draw "all reasonable inferences in favor of the verdict" and "refrain from passing judgment upon the credibility of witnesses, resolving evidentiary conflicts, or evaluating the weight of the evidence."Full Spectrum Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d 666, 673, 671(1st Cir.2017).If "the record supports conflicting versions of the truth, it [becomes] the jury's function—not the court's—to choose between these versions."Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 29(1st Cir.2012).

a. Suppression

"[L]aw enforcement officers have a . . . duty to turn over to the prosecutor any material evidence that is favorable to the defendant."Drumgold v. Callahan, 707 F.3d 28, 38(1st Cir.2013).Although this Court instructed the jury on Drumgold-style claims, Defendants do not challenge the jury instructions, only whether what the defendants term a "deliberate deception"-style claim is supported by the evidence (they incorrectly argue Drumgold-style claims do not exist).Although the duty in Drumgold is relatively recent, it has been clear since at least the 1940s that officers cannot deliberately conceal exculpatory evidence.Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214(1942);see alsoMooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791, (1935)(the state may not obtain conviction by "deliberate deception");Haley v. City of Boston, 657 F.3d 39, 50(1st Cir.2011)(same).To succeed on a Drumgold-style claim, a plaintiff must show (1) suppression of exculpatory evidence and (2) that the exculpatory evidence was material and that it caused his conviction.¹To succeed on what this Court will refer to as a Pyle-style claim, the plaintiff must additionally show deliberate deception.Deliberate deception exists if the defendant officer (1) knows the information is exculpatory (2) knows the defense requested exculpatory information and (3) fails to disclose the information to the prosecutor.Haley, 657 F.3d at 50-51.

At trial the plaintiff argued that the additional details in the post-array witness statement, along with Horgan's professed lack of knowledge as to who Cosenza or the person knocking on doors was, demonstrated that Hazelhurst provided Horgan with that information after her identification, thus bolstering the identification by imputing to Cosenza a criminal or at least unsavory nature.Furthermore, Hazelhurst admitted that the information about Payton's interactions with Cosenza was in the report he reviewed prior to conducting the photo array.Finally, that discrepancy was suppressed because at the criminal trial Hazelhurst testified that he"doubted" that he bolstered Horgan's testimony.

The jury was reasonable in inferring that Hazelhurst bolstered Horgan's identification by giving her negative information about Cosenza.Having found the bolstering occurred, it was necessarily suppressed because Hazelhurst never notified the prosecutor.The jury might have reasonably found that such evidence impeached Horgan and was therefore exculpatory, the theory the Court assumed at summary judgment.Wearry v. Cain, 577 U.S. 385, 392-93, 136 S.Ct. 1002, 194 L.Ed.2d 78(2016).At trial, plaintiff focused on another theory, that Horgan underwent "unconscious transference."Plaintiff theorized that the...