Criminal – Effectiveness of counsel – Exculpatory evidence

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Where a defendant who was convicted of first-degree murder filed a motion for a new trial asserting ineffective assistance based on trial counsel’s failure to investigate exculpatory evidence, a judge’s decision to allow that motion should be affirmed because the judge did not err or abuse her discretion in concluding that counsel’s assistance constitutionally was ineffective.

“On October 17, 2011, the defendant, Omay Tavares, was convicted of murder in the first degree in connection with the January 7, 2010, shooting death of George Thompson. In 2019, the defendant filed a motion for a new trial asserting ineffective assistance based on trial counsel’s failure to investigate exculpatory evidence provided by the Commonwealth. After an evidentiary hearing, the motion judge, who was not the trial judge, allowed the defendant’s motion. The matter is now before this court on the Commonwealth’s appeal from the motion judge’s ruling. We affirm. …

“On September 23, 2011, approximately two weeks before the trial was scheduled to begin, the prosecutor advised counsel that the Boston police department was in possession of a proffer from a confidential informant containing information about an alleged third-party shooter involved in the victim’s murder. Counsel was not provided with a redacted copy of the proffer until October 4, 2011, one day before trial was to begin.

“According to the proffer, two individuals, ‘H.H.,’ who was armed with a Taurus nine millimeter handgun, and ‘another man,’ went to the victim’s apartment intending to rob the victim of money and marijuana. When the victim lunged for the gun, he was shot and killed. Trial counsel failed to request a continuance to investigate the information contained in the proffer letter and failed to inform the defendant that it existed. …

“Here, counsel was informed of a proffer indicating that someone other than his client had gone to the victim’s home on the evening of the killing with an intent to rob the victim and carrying the same caliber firearm as that used in the killing. Qualitatively different from a rumor or neighborhood gossip, a proffer is a written legal agreement between the government and an individual in which the individual agrees to provide information about one or more crimes to the government in exchange for the government’s promise that any information provided by the individual will not be used against him or her later in court. …

“Given the significance of the information, counsel was required to provide a satisfactory reason for not making use of it. At the motion hearing, counsel asserted that he did not request a continuance to investigate the proffer because he feared his witnesses might not be available at a later date. The judge rejected this explanation as a reasonable tactical decision, noting that ‘there [was] no evidence in the record to support that premise,’ and that, at any rate, the defendant’s primary witness ‘could not provide a confident alibi.’ The judge thus concluded that the decision not to investigate fell ‘measurably below that which might be expected from an ordinary fallible lawyer.’ …

“The Commonwealth denies that counsel acted unreasonably, arguing that the proffer evidence was more inculpatory than exculpatory because it supported the theory that the defendant was involved in the shooting. We do not define the term ‘exculpatory’ as narrowly as does the Commonwealth here. …

“Here, the proffer evidence … suggested that H.H. was the shooter, thereby corroborating the mistaken identity claim; it undercut the Commonwealth’s theory that the defendant was the sole shooter in the victim’s murder; and it challenged the credibility of the two witnesses who reported that only one man came to the victim’s home on the night of the shooting. …

“The judge noted that the Commonwealth’s evidence against the defendant was ‘strong,’ but ‘not overwhelming.’ Where, as here, use of the proffer evidence could have raised a reasonable doubt as to whether the defendant murdered the victim, we cannot say that the judge erred or abused her discretion in concluding that counsel’s assistance constitutionally was ineffective.”

Commonwealth v. Tavares (Lawyers Weekly No. 10-020-23) (12 pages) (Budd, C.J.) A motion for a new trial was heard by Beverly J. Cannone, J., in Superior Court. Cailin M. Campbell for the commonwealth; Elizabeth A. Billowitz on appeal for the defendant (Docket No. SJC-11375) (Feb. 24, 2023).

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