Supreme Judicial Court of Massachusetts, Plymouth
Heard: March 8, 2019.
found and returned in the Superior Court Department on
January 29, 2007.
cases were tried before Richard J. Chin, J.; motions for a
new trial, for postconviction discovery, and for an
evidentiary hearing were heard by him; and a second motion
for a new trial, filed on August 17, 2015, was also heard by
J. Kelly for the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.
defendant, Richard Holbrook, Jr., was convicted by a jury of
murder in the first degree on the theories of extreme
atrocity or cruelty and felony-murder in connection with the
death of Michael Auger. The defendant appeals from his
convictions, and from the denials of his posttrial motions
for discovery, for a new trial, and for an evidentiary
hearing on his first motion for a new trial. He also asks us
to exercise our authority under G. L. c. 278, § 33E, to
reduce his murder conviction or to order a new trial.
full consideration of the record and the defendant's
arguments, we affirm the defendant's convictions and
decline to grant extraordinary relief pursuant to G. L. c.
278, § 33E. However, for the reasons discussed
infra, we reverse the order denying the
defendant's motion for third-party discovery, we vacate
the orders denying the defendant's motions for a new
trial, and we remand for an evidentiary hearing on the
defendant's bid for a new trial.
Facts adduced at trial.
summarize the facts presented at trial in the light most
favorable to the Commonwealth, reserving certain details for
discussion of specific issues.
November 27, 2006, the Monday after Thanksgiving, the victim
was found dead in his home, lying face down in a pool of
blood. The autopsy revealed that the victim died from skull
fractures and a brain laceration caused by three "chop
wounds" to his head, likely from a blunt instrument with
sharp edges. His pockets had been cut open, his home was
partially ransacked, and his computer and "webcam"
were found in the bathtub, where they had been submerged in
water. No murder weapon was recovered. The
victim was known to carry large sums of cash on his person;
no money was recovered from his person or his home during the
investigation. In addition to money being missing, one of the
victim's two motor vehicles, a Ford pickup truck, was
unaccounted for. The police recovered fingerprints on the
doorknob to the room where the victim's body was
discovered, deoxyribonucleic acid on the victim's wallet,
and four palm prints in the victim's
vehicle. A forensic examination of the
computer's hard drive revealed that the computer had been
shut down abruptly on November 2 6 at approximately 12:23
P.M. As discussed in more detail infra, the
Commonwealth's computer expert testified that there was
nothing of evidentiary value found on the hard drive.
defendant, who was homeless at the time of the incident, had
been raking leaves at the victim's home the Friday prior
to the murder. On Sunday morning, the day before the victim
was discovered, an acquaintance of the victim who was at the
victim's home saw a man arrive who generally matched the
defendant's description. This acquaintance
subsequently picked the defendant out of a photographic
array. The victim's mother, whose property abutted that
of the victim and who had observed the defendant with the
victim on the Friday prior to the murder, also reported
seeing an individual matching the defendant's
description at the victim's home on Sunday
morning. She observed the individual, wearing the same
clothing combination as the defendant had worn on Friday,
rummaging about in the victim's automobile and going in
and out of the victim's home, but she saw no sign of the
same Sunday, a third witness observed an individual of
similar description put something into the victim's
truck, return to the victim's home, and then depart in
the truck. Soon thereafter, a security camera recorded
footage of a truck matching the description of the
victim's truck in the parking lot of a nearby grocery
store. The security camera footage shows an individual
generally matching the defendant's description exchange a
large number of coins for paper currency using a coin
exchange kiosk in that store.
next day, the victim's truck was found in a parking lot
approximately three miles from the grocery store. That same
day, the defendant was observed purchasing items with a large
amount of cash, and he later stayed in a motel for several
nights, which was unusual for him.
interviewed the defendant within days of the killing; the
defendant maintained his innocence and claimed to have last
seen the victim when he raked leaves at the victim's home
on the Friday before the murder. At trial, the defendant
mounted an unsuccessful third-party culprit defense, implying
throughout the trial that the victim's alleged former
boyfriend, Sean Meagher, was the killer.
Third-party culprit evidence.
Meagher, who lived with the victim for approximately two
years,  testified that although the two slept
in the same bed, they did not have a romantic relationship.
Meagher further testified that he had communicated with the
victim by electronic mail (e-mail) shortly after he had moved
out of the victim's home, but that he had not seen the
victim since October 2006. Finally, Meagher testified that,
aside from going grocery shopping, he did not leave his home
at all during the weekend after Thanksgiving in 2006.
presented to the jury was the fact that, during the
investigation, two witnesses provided information to police
that contradicted Meagher's story. Paul Williams informed
investigators that he saw Meagher at the victim's home on
Saturday, two days prior to the victim's body being
discovered. In addition, Ian Anderson told police that
Meagher and the victim had been involved romantically and
that, on that same Saturday, the victim had mentioned to
Anderson that Meagher had been sending e-mail messages to the
victim "constantly" in an attempt to extort money
questioned Meagher on the same day that Williams spoke to the
police but prior to speaking with Anderson;
no one conducted a follow-up interview with Meagher based on
the information those two witnesses provided. Nor did
investigators seek to obtain and compare Meagher's
fingerprints to the unknown prints recovered from the
victim's wallet and from the doorknob to the room where
the victim's body was discovered.
regard to data recovered from the victim's computer, the
Commonwealth represented to the court, the defendant, and the
jury that there was nothing of evidentiary value found on the
hard drive. However, the defendant subsequently learned
through posttrial discovery that the hard drive contained
outgoing e-mail messages dated between September 2005 and
July 2006 that were sent from the victim to Meagher or that
referenced Meagher. In them, the victim wrote that he was
"going crazy thinking of [Meagher]" and that he
"just want[ed] the past back." The victim further
wrote, "it[']s about forgiveness and forgetting, the
past is still with us, if you want to face it and come back
we can get through it." These e-mail messages
contradicted Meagher's testimony that he and the victim
had a "friendly" relationship and that he and the
victim were not romantically involved.
his convictions, and after obtaining new counsel, the
defendant filed a motion for a new trial predicated upon
trial counsel's ineffective assistance with regard to,
among other things, counsel's failure to obtain a
forensic examination of the data from the hard drive of the
victim's computer, and failure to request fingerprints
from Meagher to compare them with unknown fingerprints
recovered from the crime scene.
support of his motion, the defendant obtained leave to have
an expert examine the computer's hard drive, resulting in
the recovery of the outgoing e-mail messages discussed
supra. The defendant subsequently amended his motion
for a new trial to reference this newly discovered evidence
and to allege prosecutorial misconduct based on the
Commonwealth's failure to provide the e-mail messages to
the defense prior to trial as an additional ground for
relief. The defendant also sought permission to request from
third-party e-mail providers any additional e-mail messages
from the victim's accounts sent in 2005 and 2006 either
that were sent between the victim and Meagher or that
referenced Meagher. This motion was denied. The judge also
denied the defendant's request for an evidentiary
hearing, as well as the underlying motion for a new trial.
Upon obtaining different appellate counsel, the defendant
filed a second motion for a new trial in which he asserted as
grounds for relief additional instances of ineffective
assistance of counsel, including trial counsel's failure
to mount a robust third-party culprit defense and
Bowden defense, among other things.
Commonwealth v. Bowden, 379 Mass. 472, 485-486
(1980). This motion also was denied.
Issues on direct appeal.
direct appeal, the defendant claims that the Commonwealth
committed reversible error by violating the defendant's
right to confront witnesses against him, by improperly
leading a witness on redirect examination, and by making an
improper closing argument. Upon review, we find
no reversible error with regard to any of these issues.