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Commonwealth v. Brescia

Supreme Judicial Court of Massachusetts, Middlesex

May 8, 2015

James E. Brescia

Argued: January 6, 2015.

Indictments found and returned in the Superior Court Department on June 26, 2006.

The cases were tried before Wendie I. Gershengorn, J., and a motion for a new trial, filed on April 15, 2011, was heard by Douglas H. Wilkins, J.

Order allowing motion for a new trial affirmed.

Bethany Stevens, Assistant District Attorney, for the Commonwealth.

Alan Jay Black for the defendant.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


Lenk, J.

At the defendant's trial for murder and conspiracy, the theory of the prosecution was that the defendant had hired an assassin to kill the victim. The victim was a man with whom the defendant believed his wife was romantically involved. The defendant took the stand and testified on his own behalf, asserting that he had requested only that the victim be threatened or beaten,

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and that subsequently he had withdrawn from the arrangement altogether. The defendant was cross-examined on the same day and on the following day.

After the jury were charged, the defendant was taken to the hospital, where it was determined that he had suffered a stroke. Testing later revealed that the stroke had occurred on the night between the first and second days of the defendant's testimony. The jury, who never learned of the defendant's stroke, returned guilty verdicts on both indictments.

The defendant filed a motion for a new trial. Because the trial judge had retired, the motion was assigned to another judge, who held a four-day evidentiary hearing and issued a detailed written decision. The judge determined that the defendant's then-undetected stroke had affected the course of his testimony in a manner that well might have damaged his credibility in the jury's eyes. The outcome of the trial, the judge explained, had turned in large measure on the jury's assessments of credibility. Concluding essentially that " justice may not have been done," Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), the judge ordered a new trial. The Commonwealth appealed.

We discern no significant error of law or abuse of discretion in the judge's decision that a new trial was warranted, and we therefore affirm.

1. Background.

a. The Commonwealth's case.

We describe the evidence presented by the Commonwealth in some detail. The defendant and his wife were married in 1998. In 2003, the defendant's wife filed for divorce; that action was soon withdrawn, and the couple attempted to reconcile. The defendant's wife again filed for divorce in June, 2005. At about the same time, she renewed an acquaintance with the victim, whom she had dated intermittently from 1984 to 1996. The two again began to meet in person in June or July of 2005.

The defendant learned of the rekindled connection between the victim and his wife. He and his wife fought often about this subject. The defendant's wife testified that the defendant told her, on one occasion, that " it wouldn't be good for [the victim's] health" if the victim and the defendant's wife ended up together; when the defendant's wife told him not to do something " stupid," the defendant responded, " it won't be [me] who does it."

The defendant hired a private investigator to follow his wife. In September, 2005, he also purchased records concerning the victim from an Internet search company.

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The defendant heard about Scott Foxworth, allegedly the assassin who killed the victim,[1] from a coworker, Nancy Campbell. Campbell previously had dated Foxworth. The defendant learned, among other things, that Foxworth had been incarcerated for murder, and that he once had offered to have Campbell's husband " beaten up." The defendant asked Campbell to contact Foxworth, saying that he " wanted somebody taken care of." Instead, Campbell gave the defendant Foxworth's telephone numbers.

The defendant contacted Foxworth in October, 2005. The content of the arrangement made between Foxworth and the defendant was the key point of dispute at trial. According to Campbell's testimony, the defendant spoke, at first, of wanting to have the victim " beaten up" ; but later, in approximately December, 2005, the defendant said that " a beating wasn't enough," and that if the victim were to die, the crime could not be traced back to the defendant.[2]

The defendant telephoned Foxworth sixty-four times over the months following their initial contact in October, 2005. He made these calls from pay telephones, using coins and prepaid cards he purchased for this purpose. On October 14, the defendant and his mother cashed a check in the amount of $4,459; the next day, Foxworth made a cash deposit of $1,000.

Sometime in September, 2005, the defendant had left the home he had shared with his wife. From Christmas Eve of that year to New Year's Day, however, the defendant stayed at that house with his wife and their children. The defendant and his wife were sexually intimate during this period. His wife told him, however, that she still intended to move forward with a divorce. Soon thereafter, the defendant wrote to his wife that their time together over the holidays had intensified his confusion and his emotions for her. The defendant also sent a series of electronic mail messages in the same vein to his wife's sister.

On January 13, 2006, the victim was found dead in his automobile, parked in a parking garage in Newton next door to the building where he worked. The cause of death was a gunshot wound to the head. The victim's wallet, which contained credit cards and $541 in cash, was recovered from the scene.

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A red vehicle was seen at the victim's workplace on the morning of the shooting. A witness thought that the vehicle might have been a Ford Taurus. None of the individuals who worked in that building drove a vehicle of that description. Foxworth owned a red Taurus, and sometime in 2006, his daughter saw him in that vehicle with a gun.

On January 15, 2006, the defendant asked Charles Merkle, an acquaintance of his, for $2,500 that Merkle was holding for the defendant in an envelope.[3] The defendant said that he needed the money to pay a lawyer. Merkle accompanied the defendant to a fast food restaurant in Andover. The defendant ...

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