Tucceri, 412 Mass. 401, 589 N.E.2d 1216
(1992)
Defendant, who had been convicted of two counts of
forcible rape, kidnapping,
unarmed robbery, mayhem, and assault and battery,
moved for new trial on ground that prosecution had failed to disclose exculpatory
evidence. The Superior Court, Middlesex County, Hiller B. Zobel, J., [the
Au
Pair judge] allowed motion, and ommonwealth appealed. The Appeals
Court affirmed, and further appellate review was granted. The Supreme
Judicial Court, Wilkins, J., held that: (1)
defendant is entitled to new trial for nondisclosure of material evidence
if absent evidence would have played important role in jury's deliberations
and conclusions, where defendant did not make specific request, and (2)
trial court's nondisclosure of photographs taken of defendant after arrest,
indicating that he did have moustache at such time, entitled defendant
to new trial.
Affirmed.
[412 Mass. 402] Patricia M. Darrigo, Asst. Dist. Atty.
(Rosemary D. Mellor,
Asst. Dist. Atty., with her), for Com.
Greta A. Janusz, New Bedford, for defendant.
Before [412 Mass. 401] LIACOS, C.J., and WILKINS, ABRAMS,
NOLAN and GREANEY,
JJ.
[412 Mass. 402] WILKINS, Justice.
We granted further appellate review in this case to
consider the standard to
be applied in ruling on a defendant's motion for a
new trial based on the
failure of the prosecution to disclose exculpatory
evidence in its possession.
At the defendant's 1978 trial on charges of rape, kidnapping,
unarmed
robbery, mayhem, and assault and battery, identification
of the assailant was
the only contested issue. The police arrested the
defendant near the crime
scene in Cambridge within minutes after the attacker
had left the victim. The
Cambridge police took photographs of the defendant
shortly after his arrest.
The victim testified repeatedly that her attacker
was clean-shaven. Another
witness who identified the defendant as the person
he had seen near the crime
scene testified several times that the man he had
seen had no moustache. Police
witnesses testified that the defendant did not have
a moustache on the day of
the crimes. The defendant's wife testified, however,
that at the time of the crimes the defendant did have a moustache.
[412 Mass. 403] The defendant moved generally for the
disclosure of exculpatory evidence. Although he and his counsel knew that
photographs had been taken shortly after his arrest, the defendant never
specifically requested their production. Certainly, the defense was not
hindered by an inability to be specific in
any request it might make for the photographs. In October, 1988, pproximately
ten years after his trial, the defendant wrote the record department of
the Cambridge police department for a copy of the photographs taken of
him on the night of his arrest. In circumstances not disclosed on the record,
the defendant obtained them. The frontal photograph of the defendant's
face shows the defendant with a moustache. The photograph would have aided
the defendant in the impeachment of the principal witnesses against him.
The Commonwealth grants that the photographs were exculpatory (Commonwealth
v. Ellison, 376 Mass. 1, 21-22, 379 N.E.2d 560 [1978] ), but argues, that,
in light of the evidence tending to show that the defendant was guilty,
a new trial is not required. (FN1)
Citing the rule stated in Commonwealth v. Gallarelli,
399 Mass. 17, 21, 502
N.E.2d 516 (1987), and cases cited, both the motion
judge (who was not the trial
judge) and the Appeals Court (Commonwealth v. Tucceri,
30 Mass.App.Ct. 954,
955, 956, 571 N.E.2d 48 [1991] ) ruled that the prosecution's
failure to
disclose the exculpatory evidence required a new trial,
even though the
defendant did not specifically move for its production.
We agree and conclude
that it is time for this court to expand on the appropriate
considerations in
cases in which the prosecution had evidence that would
have assisted the
defendant but did not disclose it. One reason for
presenting a more extensive
explication of these considerations is that our views
have [412 Mass. 404] not
developed in parallel with those of the Supreme Court
of the United States in
cases involving prosecutorial failures to disclose
exculpatory evidence.
[1] We shall discuss (1) the reasons why the prosecution
must depart from a
totally adversary role in cases of this sort, (2)
the interrelationship of
common law and constitutional principles in the decision
of such cases, (3) the
role of defense counsel and the relationship of any
omissions of defense counsel
to the prosecution's nondisclosures, (4) the significance,
in deciding whether
any error was reversible error, of the fact that the
case was tried to a jury,
and (5) the standard to be applied in deciding whether,
in particular
circumstances, a new trial may or should be ordered
because admittedly
exculpatory evidence was not provided to the defendant
(and thus was not
disclosed to the jury). Of all these concerns, the
last is the most problematic
because, on such a fact-based issue, a universal guide
as to when prosecutorial
error requires a new trial cannot be fashioned except
in general terms and
because the outcome of a nondisclosure case may depend
on seemingly minor word differences in expressing the standard for measuring
prejudice to a defendant's case. (FN2)
[2] [3] 1. The governing
principles. Due process of law requires that the
government disclose to a criminal defendant [412 Mass.
405] favorable evidence
in its possession that could materially aid the defense
against the pending
charges. The Supreme Court of the United States announced
the prosecution's
constitutional obligation to disclose material, exculpatory
evidence in Brady
v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196,
10 L.Ed.2d 215 (1963), where
the defendant had requested specific evidence. InUnited
States v. Agurs, 427
U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the
Court provided protections
for defendants who only generally requested exculpatory
evidence or made no
request at all. The Agurs opinion
distinguished between a specific request and
a general request for exculpatory
evidence in determining whether the
prosecution's omission warranted
a new trial. When the unsatisfied request
was
specific,
a new trial would be required if the undisclosed evidence "might have
affected the outcome of the
trial." Id. at 104, 96 S.Ct. at 2398. If there was no request or
if, as here, only a general request was made, a new trial would be required
only if the undisclosed evidence "create[d] a reasonable doubt which did
not otherwise exist." Id. at 112, 96 S.Ct. at 2402. In Commonwealth v.
Ellison, 376 Mass. 1, 23-24, 379 N.E.2d 560 (1978), Justice Kaplan discussed
some of the uncertainties the Agurs opinion created. (FN3)
In United States v. Bagley, 473 U.S. 667, 105 S.Ct.
3375, 87 L.Ed.2d 481
(1985), the Supreme Court adopted a single standard
of prejudice (what it calls
materiality) for all prosecutorial nondisclosure cases.
See id. at 682, 105
S.Ct. at 3383; id. at 685, 105 S.Ct. at 3385 (White,
J., concurring in part in
the judgment). That unitary standard, taken from Strickland
v. Washington, 466
U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674
(1984), which in turn relied
on the no request or no-specific
request test of the Agurs case, states that
"[t]he evidence is material [i.e. requires a new trial]
only if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the
result of the proceeding would have been different.
A 'reasonable probability'
is a probability sufficient to undermine confidence[412
Mass. 406] in the
outcome." United States v. Bagley, supra, 473 U.S.
at 682, 105 S.Ct. at 3383.
(FN4) In Commonwealth v. Gallarelli, 399 Mass. 17,
502 N.E.2d 516 (1987),
this court declined to adopt
the Bagley "one size fits all" test as a matter of
State law and adhered to the
Agurs test for determining the consequences of a
prosecution's failure to comply
with a specific request
for exculpatory
evidence. Id. at 21 n.
5, 502 N.E.2d 516. See Commonwealth v. Daye, 411
Mass. 719, 728-729, 587 N.E.2d 194 (1992).
[4] [5] There are several forces at work in prosecutorial
nondisclosure cases. First, when the question arises posttrial, there is
a public interest in the finality of judgments. New trials should
not be granted except for substantial reasons. Second, prosecutors, who
are agents of the State and often have access to information that defendants
may not have, should be encouraged to disclose exculpatory evidence that
in fairness defendants should have for their defense. Of course, a prosecutor
cannot always know that a particular piece of evidence is or might be exculpatory.
(FN5) A rule that encourages prosecutors [412 Mass. 407] to make pretrial
disclosures of obviously or even arguably exculpatory material would not
only promote fair trials (FN6) but would also help to avoid the
difficulties of post-trial judicial review. Judges,
therefore, should be sensitive to the allowance of motions for the disclosure
of specific information claimed to be exculpatory. A prosecutor's duty,
however, extends only to exculpatory evidence in the prosecutor's possession
or in the possession of the police who participated in the investigation
and presentation of the case. See Commonwealth v. Daye, 411 Mass. 719,
734, 587 N.E.2d 194 (1992). Third, when the omission of the prosecution
is knowing and intentional or follows a specific
request, a standard of prejudice more favorable to the defendant
is justified in order to motivate prosecutors to be alert to defendants'
rights to disclosure.
It is this reason that underlies this court's rejection
of the Bagley rule and
our adoption of the specific
request standard of the Agurs opinion as State
law. See Commonwealth v. Gallarelli, supra, 399 Mass.
at 21 n. 5, 502 N.E.2d
516. In such cases, we overlay a prophylactic rule
upon common law and due
process fairness standards that lessens the burden
in proving prejudice. (FN7)
We [412 Mass. 408] acknowledge that these disclosure
requirements are
inconsistent with the traditional adversary role of
litigants. But the duties
of a prosecutor to administer justice fairly, and
particularly concerning
requested or obviously exculpatory evidence, go beyond
winning convictions. See
Commonwealth v. Wilson, 381 Mass. 90, 109, 407 N.E.2d
1229 (1980). See also
S.J.C. Rule 3:08, PF 7, 382 Mass. 800 (1981) (standards
relating to the
prosecution function, disclosure of evidence by prosecutor).
2. Common law and constitutional principles.
In deciding whether a defendant is entitled to a new trial because the
prosecution failed to turn over exculpatory evidence, State judges are
not limited to constitutionally based principles. The opinions of the Supreme
Court of the United States that we have cited previously in this opinion
are concerned with defendants' Federal constitutional rights. Our opinions
in this area have generally applied the Federal constitutional standards
without stating explicitly whether the same standards apply under the State
Constitution. Cf. Commonwealth v. Daye, 411 Mass. 719, 725, 729, 587 N.E.2d
194 (1992) (State due process rights considered). In Commonwealth v Gallarelli,
supra, 399 Mass. at 21 n. 5, 502 N.E.2d 516, however, as we have said,
we declined to follow the Supreme Court's
position in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d
481 (1985). We elected instead, without stating whether
our rule had a common law or State
constitutional basis, to continue
with the principles of our decisions that had
applied the rule of the Brady
and Agurs cases. Gallarelli,
supra. See
Commonwealth v. Ellison, 376 Mass. 1, 21, 379 N.E.2d
560 (1978).
[6] There is no reason why the nondisclosure issue
could not be advanced by
a motion for a new trial to which the regular principles
of Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), apply. Often such a motion
will simply present a new trial claim based on newly discovered evidence.
See Commonwealth v. Grace,
397 Mass. 303, 305, 491 N.E.2d 246 (1986) (defendant
who seeks new trial on
grounds of newly discovered evidence [412 Mass. 409]
must show that evidence was newly discovered and that "it casts real doubt
on the justice of the
conviction"). (FN8) Even if undisclosed evidence is
not "newly" discovered,
the failure of a prosecutor to furnish exculpatory
evidence in his possession
could be a proper basis for a new trial motion based
on other common law
grounds. Such a motion could also be based on constitutional
grounds.
[7] In dealing with common law decisions of a motion
judge who was the trial
judge, we have deferred in large measure to the judge's
views on motions for a
new trial. Id. at 307, 491 N.E.2d 246. There is, therefore,
a discretionary
range in cases like this within which the trial judge
may properly award a new
trial, even if a new trial is not constitutionally
required and even if we would
not have granted a new trial on our own assessment
of the record. We have not
extended similar deference to the views of a judge
who, as was the case here,
acted on a new trial motion but was not the trial
judge. We have, however,
deferred to such a motion judge's conclusions on testimony
presented in
association with a new trial motion. See Commonwealth
v. Grace, supra. If
the new trial claim is constitutionally based, this
court will exercise its own
judgment on the ultimate factual as well as legal
conclusions.
In this case, we are in as good a position as the motion
judge to assess the
trial record. Id. The defendant argues only a violation
of constitutional
rights and does not assert any State common law right.
We shall return to the
question of common law relief in this case when we
discuss the standard for
measuring prejudicial error because we should not
feel bound by a party's
election to assert only constitutional rights and
thereby decline to raise
plausible nonconstitutional grounds for relief.
[412 Mass. 410] [8]
3. The role of defense counsel.In
many instances of
prosecutorial nondisclosure of exculpatory evidence,
defense counsel may have
failed in his obligation to provide adequate representation.
As a general rule,
the omissions of defense counsel (a)
do not relieve the prosecution of its
obligation to disclose exculpatory evidence and (b)
may provide the defendant
with an independent claim of an unconstitutional denial
of the effective
assistance of counsel.
In this case, the defendant, represented by new counsel,
argued below and
argues to us that his trial counsel negligently failed
to move specifically for
the production of the photographs and that that omission
requires that he have a
new trial. It is true that, for some unclear reason,
the defendant moved only generally for the production of exculpatory evidence
and not specifically for the production of the photographs. The motion
judge did not order a new trial, however, on the ground of ineffective
assistance of counsel. He had no need to, and did not, make findings or
rulings concerning either the quality of defense counsel's performance
or the possible impact on the verdict of any failure of defense counsel
to meet the constitutionally minimum level of competence. Defense counsel
did argue to the jury that the prosecution's failure to produce the photographs
warranted an inference that they show that the defendant did have a moustache
on the night of the crimes. That argument pales, however, in its likely
impact on a jury when compared with the frontal photograph's candid,
objective, and hence irrefutable demonstration on
the same subject. We shall not, and need not, pursue the ineffective assistance
of counsel argument to its conclusion. Perhaps an adequate explanation
why counsel did not move
specifically for the
production of the photographs lies outside the record. (FN9)
[412 Mass. 411] [9]
4. The role of the jury. In
dealing with a claimed failure of the prosecution to disclose exculpatory
evidence to a defendant, this court differs from the Supreme Court of the
United States in another significant way. In our judgment, the judge's
task is to decide what effect the omission might have had on the jury.
The law of the Commonwealth thus preserves, as well as it can in the circumstances,
the defendant's right to the judgment of his peers. The issue, we think,
is not what, if any, impact the late disclosed evidence has on the judge's
personal assessment of the trial record. After all, the goal is to determine
what would have happened if the prosecution had fulfilled its pretrial
duty to disclose the exculpatory evidence and the jury had seen the photographs.
(FN10)
The Supreme Court of the United States, on the other
hand, seemingly assigns
to the judge the task of assessing the consequences
of the prosecutor's omission. See United States v. Agurs, 427 U.S. 97,
112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). It is, of course, true
that in deciding whether a defendant's due process right to a fair trial
may have been violated, a court is deciding a question of constitutional
law, which is clearly a judicial function. Moreover, the Federal
approach is arguably easier to apply. Judges can be more confident in assessing
the effect that the omitted evidence would have had on them than in determining
its effect on the collective or individual judgments of twelve lay people.
On the other hand, the Federal approach seems to treat the involvement
of a jury in the trial as irrelevant. We believe that the jury's role should
be an acknowledged part of any assessment of a defendant's claim of prejudice
caused by the prosecution's omission. [412 Mass. 412] [10]
5. The standard of review. We
come finally in our analysis to the definition of that degree of prejudice
or possible prejudice that warrants or requires the granting of a new trial
because the prosecution improperly failed to deliver exculpatory evidence
to the defense. We have already noted (in part 2 above) that we grant special
deference to a decision on a motion for a new trial of the judge who was
also the trial judge. We are not concerned here with the standard of review
an appellate court would apply in such a situation. We are also not concerned
here directly (but see note 9 above) with the standard to be applied when
the prosecution has denied the defendant specifically requested exculpatory
evidence. In that situation, a defendant need only demonstrate that a substantial
basis exists for claiming prejudice from the nondisclosure. See Commonwealth
v. Gallarelli, supra, 399 Mass. at 20-21, 502 N.E.2d 516; Commonwealth
v. Wilson, 381 Mass. 90, 109, 407 N.E.2d 1229 (1980), quoting United States
v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976)
("evidence must be disclosed even if it provides only 'a substantial basis
for claiming materiality exists' ).
[11] Our concern is with the standard to be applied
when the defendant has made no request or, as here, has made only a general
request for exculpatory evidence. The Supreme Court opinions refer to the
"materiality" of the exculpatory evidence. In this opinion we have generally
avoided using the word "material" to describe the importance of evidence
to the new trial claim. If the evidence is exculpatory, it is also material
in the general evidentiary sense that it is material (and relevant) to
an issue in the case. In its opinions in the Agurs and Bagley cases, the
Supreme Court has not used the word "material" in its ordinary, evidentiary
sense. To that Court, evidence is material in the sense that its absence
mattered or might have mattered in the trial of the case. We prefer to
refer in standard common law terms to the degree of prejudicial effect,
rather than materiality, of the improper nondisclosure of exculpatory evidence.
Our common law standard for the granting of a new trial
and our standard for
measuring the consequences of the ineffectiveness
of defense counsel provide the appropriate guide [412 Mass. 413] for determining
whether the nondisclosure of evidence requires the allowance of a new trial
motion. See Commonwealth v.
Daye, 411 Mass. 719, 734, 587 N.E.2d 194 (1992) (new
trial standard);
Commonwealth v. Grace, 397 Mass. 303, 306, 491 N.E.2d
246 (1986) (same);
Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d
621 (1992) (ineffective assistance of counsel standard); Commonwealth v.
Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977) (same). The judge
must determine whether there is a substantial risk that the jury would
have reached a different conclusion if the evidence had been admitted at
trial. Commonwealth v. Grace, supra. Would it have been a real factor in
the jury's deliberations? Id. This test is substantially the same as the
Saferian ineffective assistance of counsel standard: "whether [defense
counsel's omission] has likely deprived the defendant of an otherwise available,
substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89,
96, 315 N.E.2d 878 (1974). That standard, which is not explicitly constitutionally
based, was replicated in another opinion of Justice Kaplan in the following
words: "there ought to be some showing that better work [of counsel] might
have accomplished something material for the defense." Commonwealth v.
Satterfield, supra.
The application of the common law standard that we
have adopted requires a
careful review of the trial court proceedings to determine
whether there is a
substantial chance that the jury might not have reached
verdicts of guilty if
the undisclosed evidence had been introduced in evidence.
(FN11) In terms of
the case before us, the issue is whether the defendant
was denied a substantial
factual basis for contending to the jury that the
victim misidentified him.
We find this standard to be clearer and fairer than
the Agurs general
request test, which is whether the undisclosed evidence
creates a "reasonable
doubt that did not otherwise exist." United States
v. Agurs, supra, 427 U.S.
at 112, 96 S.Ct. at 2402. Our standard recognizes
the role of the jury. It
also does not mandate, as a [412 Mass. 414] condition
of the granting of a new
trial, that a judge conclude that a reasonable doubt
would have been created if the undisclosed evidence had been before the
jury. It is enough that, on a full and reasonable assessment of the trial
record, the absent evidence would have played an important role in the
jury's deliberations and conclusions, even though it is not certain that
the evidence would have produced a verdict of not guilty.
[12] 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.
[13] 6. Conclusion. From
what we have said, it follows that the nondisclosure of the photographs
requires the ordering of a new trial. The frontal photograph of the defendant's
face was authentic and incontestably showed that the defendant had a moustache.
The photograph was made by the Cambridge police and, because of its unquestionable
weight and reliability, was not "merely cumulative" of the testimony of
the defendant's wife that he had a moustache on the day of the crimes.
Although the fact that the defendant had a moustache does not disprove
his commission of the crimes, it casts doubt on the identification of the
defendant as the attacker because it demonstrates that the victim and other
witnesses were undeniably wrong in one aspect of their sworn identification
testimony. Consequently the photograph showing the defendant with a moustache
would have been a real factor in the jury's [412 Mass. 415] deliberations,
and its introduction in evidence might have accomplished something material
for the defense.
Order allowing motion for new
trial affirmed.
FN1. The defendant generally
fit the victim's description of her attacker,
particularly as to the clothes and belt that her attacker
was wearing. The
heel from a boot of the defendant was found near the
crime scene. Shortly
after the incident, a man generally fitting the defendant's
description, and
identified by one witness as the defendant, was seen
running toward a van
owned by the defendant.
Although the motion judge correctly described the moustache
as "trimmed, full, [and] plainly obvious," it was not prominent.
FN2. For example, the
rule previously stated to be applied to the facts of this
kind of case is whether the undisclosed evidence creates
a reasonable doubt
that did not otherwise exist. Commonwealth v. Gallarelli,
399 Mass. 17, 21, 502 N.E.2d 516 (1987), quoting United
States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342
(1976). The motion judge expressed the guiding rule as whether the
undisclosed evidence could create a reasonable doubt that would not otherwise
exist. A standard that the Appeals Court stated at one point in its opinion
was whether it could say that, if the exculpatory evidence had been introduced,
"it would not have created a reasonable doubt as to the guilt of the defendant."
Commonwealth v. Tucceri, 30 Mass.App.Ct. 954, 955, 571 N.E.2d 48 (1991)
(emphasis supplied). The Appeals Court formulation may suggest that the
Commonwealth has the burden of showing that the defendant was not prejudiced
by the nondisclosure. It is, however, the defendant who has the burden
of showing prejudice warranting or requiring a new trial order. See Commonwealth
v. Monteiro, 396 Mass. 123, 130, 484 N.E.2d 999 (1985); Commonwealth v.
Wilson, 381 Mass. 90, 110, 407 N.E.2d 1229 (1980).
FN3. A third aspect involves
situations in which the prosecution knew or should
have known that perjurious testimony was offered and
did not disclose that fact. There, a new trial is required "if there is
any reasonable likelihood that the false testimony could have affected
the judgment of the jury." United States v. Agurs, supra, 427 U.S. at 103,
96 S.Ct. at 2397.
FN4. In Davis v. Alaska,
415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d
347 (1974), the Supreme Court said proof of prejudice
was unnecessary when
the scope of cross-examination was unconstitutionally
restricted. In United
States v. Bagley, 473 U.S. 667, 676-678, 105 S.Ct.
3375, 3380-81, 87 L.Ed.2d
481 (1985) the plurality opinion sought to distinguish
Davis v. Alaska, a right to confrontation of witnesses case, from the due
process basis of United States v. Bagley. The argument before us is not
based on a denial of the defendant's constitutional right of confrontation.
If no prejudice need be shown to obtain a new trial because of a direct
restriction on the scope of cross-examination, should it be required for
a substantial restriction on the depth and quality of cross-examination
that results indirectly from prosecutorial nondisclosure of exculpatory
evidence?
-
FN5. In this case, the
prosecutor (who is not appellate counsel) must have
been, and certainly should have been, aware before
trial that the photographs
existed.
During a pretrial suppression hearing held on October
10, 1978, the victim
testified that her attacker did not have a moustache,
had no growth on his
face, and was clean-shaven. A police officer testified
that he did not
recall any moustache, and the man who identified the
defendant as the man he
had seen near the crime scene and the defendant's
van testified that the man
had no moustache. The defendant had a moustache at
the time of the hearing.
The trial commenced on October 12. On October 16,
a police officer testified
on cross-examination by the defendant that the defendant
did not have a
moustache at the time of the crimes, that he had seen
a "mug shot" of the
defendant taken perhaps the day after the crimes,
and that "[o]ne of the
night men that work on the third platoon have [sic
] it." On October 17,
the defendant's wife testified that the defendant
had a moustache on the day
of the crimes.
FN6. The prosecution's
nondisclosure of the photographs obviously made it
easier for the Commonwealth to meet its burden of
proof.
FN7. The rule that the
Supreme Court stated in the Bagley case on its face
makes the prosecution's state of mind irrelevant in
deciding whether due process of law requires a new trial for any defendant
from whom the prosecution improperly has withheld exculpatory evidence.
This change is interesting in light of that Court's conclusion three years
later in Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337-38,
102 L.Ed.2d 281 (1988), that only on a showing of police bad faith can
there be a denial of due process of law in the failure of the prosecution
to preserve potentially exculpatory evidence. This court has declined to
follow the Youngblood rule and has not required proof of bad faith in addition
to prejudice to the defendant, caused by the prosecution's loss or destruction
of evidence, as a necessary factor in deciding that a new trial is required
in such circumstances. Commonwealth v. Phoenix, 409 Mass. 408, 412 &
n. 1, 567 N.E.2d 193 (1991). In Commonwealth v. Henderson, 411 Mass. 309,
310-311, 582 N.E.2d 496 (1991), where there was no police bad faith, we
nevertheless upheld the pretrial dismissal of charges on State due process
of law grounds where the police had lost a written record of the victim's
description of the person who had robbed her in 1987 and where there were
special circumstances involved in the victim's identification of the defendant
more than two years later.
FN8. To be sure, in the
case now before us, a claim that at the time of trial the defense did not
know of the photographs (and hence now could pass the test of newness)
seems impossible to sustain (and has not been made). See Commonwealth v.
Grace, 397 Mass. 303, 306, 491 N.E.2d 246 (1986) (to be
"newly" discovered, evidence must have been unknown
to defendant and his
counsel and not reasonably discoverable).
FN9. If counsel's performance
did fall measurably below accepted standards, the
detrimental effect of that omission would be more
easily established in this case than in the usual case of a claimed ineffectiveness
of counsel. In this case, the harm caused by any negligence of defense
counsel would be measured by the difference between the standard of review
that would have been applied to the withheld evidence, if defense counsel
had made a specific request, and the standard that is applied when defense
counsel made no specific request. That standard in Massachusetts
is more favorable to a defendant when defense
counsel has made a specific rather than a general
request for exculpatory
evidence that the prosecution failed to disclose.
FN10. If we were dealing
with a claim of ineffective assistance of counsel based on the failure
of defense counsel to present certain evidence to the jury, our approach
also would be to consider the impact of that omission on the jury.
FN11. We see no need to
express this standard in State constitutional terms.
Because it is more favorable to defendants than the
Federal Constitutional
standard, the common law standard will be the controlling
one. Cf.
Commonwealth v. Charles, 397 Mass. 1, 14-15, 489 N.E.2d
679 (1986).
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