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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Brown,
Present: Armstrong, C.J., Lenk, & Trainor, JJ.
Complaint received and sworn to in
the Roxbury Division of the District Court Department on
A pretrial motion to suppress evidence was heard by Rosalind H. Miller, J.; the
case was tried before Paul K. Leary, J., and a motion for a new trial was heard
by him.
Theodore F. Riordan for the defendant.
Seema Malik Brodie, Assistant District Attorney, for the Commonwealth.
a brief.
LENK, J.
After trial by jury, the defendant, Alfred
Brown, was acquitted of possessing burglarious tools and convicted of larceny
under $250, malicious destruction of property under $250, and breaking and
entering in the nighttime with the intent to commit a misdemeanor. The trial
judge thereafter denied Brown's motion for new trial, sought on the grounds
that the Commonwealth had failed to produce exculpatory evidence and that his
trial counsel had provided ineffective assistance. Brown appeals his
convictions and the denial of his motion for new trial. We affirm.
The Commonwealth introduced evidence that, on
Brown testified to a completely different version of events. He was walking
down
Officer Ross testified, on rebuttal, that he did not recall any "walkman"
on Brown when he arrested him, and Officer Rogers -- who had arrived on the
scene after the arrest -- testified that he did not recall seeing earphones or
anything akin to them on Brown's head. On surrebuttal,
Brown testified that two "walkmans" were returned to him after his
arraignment.
Brown maintains on appeal that reversal of his convictions is required because
the Commonwealth's evidence was insufficient to establish that he did not own
the vandalized car. He contends also that he is entitled to a new trial because
(a) his constitutional rights were violated by the Commonwealth's failure to
provide him with a police inventory report showing that two
"walkmans" had in fact been taken from him after his arrest; and (b)
his trial counsel was ineffective insofar as he remedied a deficiency in the
Commonwealth's case regarding ownership of the car, and in having failed to
procure and use for impeachment purposes both the inventory report and a
transcript of an earlier evidentiary hearing on the defendant's motion to
suppress.
1. Sufficiency of the evidence. The Commonwealth introduced a Registry of Motor
Vehicles application form showing that, as of
2. Failure to provide the police inventory report. Brown contends that the
Commonwealth withheld exculpatory and material evidence in violation of his
Federal and State constitutional rights.
"To prevail on a claim that the prosecution failed to disclose exculpatory
evidence, the defendant must first prove that the evidence was, in fact,
exculpatory." Commonwealth v. Healy, 438
Brown claims that he made a specific request for the inventory report by virtue
of (a) an allowed motion for the production of exculpatory evidence, and (b) a
pretrial agreement requiring the Commonwealth to produce "police reports,
notes, and F.I.O. in the custody or control of the
Commonwealth." "[T]he due process clause does not require
prosecutorial clairvoyance. Absent a request sufficiently specific to provide
the Commonwealth with notice of the defendant[']s interest in a particular
piece of evidence, the prosecution may legitimately be held responsible for
disclosing only that evidence whose own character reveals its
materiality." Commonwealth v.
Brown's allowed motion for the production of exculpatory evidence was not a
specific request. There is nothing in the record to suggest that the prosecutor
knew before Brown testified at trial that Brown's defense would implicate his
possession of two "walkmans" at the time of the incident. Even if the
prosecutor had the inventory report in hand, it was simply not of such
character as to reveal its exculpatory potential.
The prosecutor did, however, agree to produce "police reports" and
"notes" in the Commonwealth's custody or control; such pretrial agreements
are binding on the parties and have the force of a court order. Mass.R.Crim.P. 11(a)(2), 378
Because the inventory report was prepared by the police, it is in some sense a
police report. But not all requests for police reports or records are specific
requests for the evidence in question. See Commonwealth v. Jackson, 388 Mass.
98, 110 (1983) (request that Middlesex prosecutor provide "state, county
or police department reports" not a specific request for Brockton police reports
regarding investigations of another, apparently unrelated, crime). Contrast
Commonwealth v. Gallarelli, supra at 20-22 (pretrial
agreement to produce "police reports" and "scientific
reports" specific enough to require prosecutor, who did not have or know
of laboratory report showing absence of blood on knife recovered from
defendant, to disclose such report given the charge against the defendant, the
scientific investigation conducted, and the evident materiality of such
information).
The appellate record discloses little about the preparation or purpose of the
inventory report, although it seems that neither of the two arresting officers
who testified at trial played any part in connection with it. The inventory
report does not appear to be investigatory in nature, and, while it lists the
charges against the defendant, it does not discuss the incident giving rise to
the arrest, nor does it detail the defendant's involvement in the incident.
Presumably, the purpose of such an inventory report is at least in part to
catalogue items taken from a defendant when he is put in custody and thereby to
ensure their later return to him. The inventory report, unlike prototypical
police reports relating to crime investigations, has no self-evident bearing
upon the defendant's involvement in the alleged criminal activity. Its arguable
materiality comes to the fore only when coupled with knowledge that Brown's
defense would implicate the two "walkmans" and that the police
officers would testify that Brown did not have such items when arrested. The
prosecutor apparently did not have such knowledge in advance of Brown's trial
testimony and, in these circumstances, Brown's request
for "police reports" was not specific enough to place the prosecutor
on notice that the inventory report was being sought.
The inquiry then becomes whether Brown has shown a substantial risk that the
jury would have reached a different conclusion if the evidence had been
admitted at trial. Put another way, "would [the inventory report] have
been a real factor in the jury's deliberations?" Commonwealth v. Tucceri, 412
"If the undisclosed evidence is
cumulative, if it lacks credibility, or if, in an over-all assessment, it does
not carry a measure of strength in support of the defendant, the failure to
disclose that evidence does not warrant the granting of a new trial. If,
however, the undisclosed evidence is more credible than any other evidence on
the same factual issue and bears directly on a crucial issue before the jury,
such as the credibility of an important prosecution witness, that evidence
would have been a real factor in the jury's deliberations, and its presence
before the jury might have accomplished something material for the
defense."
Brown contends that the inventory report
corroborates his otherwise uncorroborated testimony and shows that the police
officers were undeniably wrong in one aspect of their testimony. He argues that
since the case turned on credibility -- the jury had to choose between the
police version and Brown's version of events -- the inventory report of
necessity would have been a real factor in the jury's deliberation. In this
regard, Brown argues, the situation is akin to Commonwealth v. Tucceri, supra, where undisclosed police photographs depicted
a mustachioed defendant following his arrest. The photographs would have been a
real factor for the jury to consider since they had heard the victim and other
witnesses, who identified the defendant as the assailant, describe the
assailant as having been clean-shaven. A new trial was granted Tucceri since the photographs showed that the witnesses
were "undeniably wrong in one aspect of their sworn identification
testimony."
We are not persuaded that the undisclosed inventory report is of similar
import. To be sure, the inventory report would show that Brown was correct and
the arresting officers were wrong about Brown's having
had on him two "walkmans" that evening. Unlike Tucceri,
however, where the undisclosed photographs bore directly on the core issue of
identification, the "walkman" information does not have direct
bearing on the crucial issue of whether Brown was the one who broke into the
car and took items from it. Wearing two "walkmans" of unknown
dimensions and committing the crimes with which Brown was charged are not
mutually exclusive activities.
3. Ineffective assistance of counsel. Brown contends that his lawyer provided
ineffective assistance in three respects: in remedying a defect in the
Commonwealth's case as to ownership of the car; in not specifically requesting
the police inventory report; and in not procuring and using the transcript of
the suppression hearing to impeach the police officers at trial.
Because we deem sufficient the Commonwealth's documentary evidence as to car
ownership, any arguable misstep that defendant's trial counsel may have made in
pursuing a line of questioning that underscored the fact that someone other
than Brown owned the car is without consequence. As to counsel's failure to
make a specific request for the inventory report, the short answer is that
there is no indication in the record before us that defense counsel knew before
trial that possession of the "walkmans" would be relevant to Brown's
defense.
Finally, Brown complains that his trial counsel did not procure or use at trial
the transcript of a suppression hearing at which the defendant had been represented
by different counsel. Trial counsel does not explain this regrettable lapse,
but attests that it was not deliberate trial strategy on his part. Despite
trial counsel's undeniable shortcoming in this regard, Brown has not shown how
procurement and use of the transcript at trial would have provided something
material to his defense. While Brown points to a number of discrepancies
between police testimony at the hearing and at trial, we agree with the trial
judge's assessment that the inconsistencies are at best minor.
Judgments affirmed.
Denial of motion for new trial
affirmed.
FOOTNOTES:
[1] The report bears a date of
[2] The police and Brown's versions are not
necessarily inconsistent, in any event, because the "walkmans" of
unknown size may have been, e.g., in Brown's pocket and first noticed not by
the arresting officers but by the booking officer.
[3] It read "visible injuries: none" and
"suspect refused to [be] booked, printed, photo[graphed]."