Heard: November 6, 2018.
found and returned in the Superior Court Department on
September 15, 2010.
review by this court, 472 Mass. 827 (2015), a motion for a
new trial, filed on July 11, 2016, was heard by Thomas
Drechsler, J., and a motion for reconsideration was
considered by him.
Belger for the defendant.
F. O'Sullivan, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
defendant, convicted of murder in the first degree in the
2009 shooting death of Vincent Gaskins, appeals from the
denial of his second motion for a new trial. The defendant
previously brought a consolidated appeal from the denial of
his first motion for a new trial and his conviction. He
claimed error in, among other grounds, the Commonwealth's
failure or inability to disclose to him the name of a
confidential informant who appeared to have information about
the murder. While otherwise rejecting the claims of error at
trial as to the record then before us and declining to
provide relief under G. L. c. 278, § 33E, we agreed that
the defendant's pretrial motion to obtain the identity of
a confidential informant had been denied without proper
appraisal. See Commonwealth v.
Bonnett, 472 Mass. 827, 849-851 (2015)
(Bonnett I) . We accordingly
remanded for a hearing under the framework set forth in
Roviaro v. United States, 353 U.S.
53, 59 (1957) . See Bonnett I, supra at
846-850. We noted that if "new circumstances permit[ted]
the informant's identity to be disclosed . . ., the
defendant [could] seek a new trial upon a showing that newly
discovered evidence would probably have been a real factor in
the jury's deliberations." Id. at 850 n.26.
the requisite disclosures concerning the identity of the
confidential informant had been made by the time of the
rehearing, the defendant did not pursue a full
Roviaro inquiry; he instead brought a second motion
for a new trial in light of the newly available evidence. The
new evidence in essence consisted of inculpatory statements
assertedly made to three individuals by the now-deceased
Brandon Payne, who also was present on the night of the
shooting. After an evidentiary hearing on the motion for a
new trial, in which a judge heard from the previously
confidential informant and from two of the defendant's
friends, the motion judge found that the defendant had not
met his burden of showing that the new evidence was material
and credible, or that it cast real doubt on the justice of
appeal before us, the defendant argues that the motion judge
abused his discretion in denying the second motion for a new
trial. Discerning no clear error or abuse of discretion, we
affirm the judge's decision. We also decline to exercise
our power under G. L. c. 278, § 33E, to reduce the
verdict or to grant a new trial.
Background and procedural posture.
facts underlying the defendant's conviction are set forth
in detail in Bonnett I, 472 Mass. at 828-832. We
focus our discussion on pertinent facts, supplementing as
necessary, where relevant to the issues in this appeal.
November 22, 2009, at approximately 1 A.M., the victim was
shot and killed in a parking lot across the street from a
nightclub in Lynn. Surveillance footage taken from
establishments located near the crime scene showed the
shooting from a distance; the footage, however, was grainy
and of poor quality.
Commonwealth's case at trial centered on the testimony of
the victim's cousin, Sheffery Johnson, who described the
events that night. Johnson testified that, on the evening of
the shooting, she picked up Brandon Payne in her truck and
they drove to a parking lot located across the street from
the nightclub. As they sat talking, Johnson saw the
victim leaving the nightclub with his girlfriend. They were
with or near a "dark skinned" man wearing a gray
sweat suit, who Johnson identified at trial as the
victim and his girlfriend walked over to Johnson's truck,
where several others had congregated after leaving the
nightclub. As there had been tension between Payne and the
victim following an altercation several months earlier, the
two began arguing, and eventually ended up outside, at the
back of the vehicle. Johnson watched them through the rear
view mirror, and then got out to join them. Shortly
thereafter, she noticed someone "pass [her]" and
join the group; she was not focused on who it was.
the argument, the victim suggested that he and Payne go
around the corner and fight. After Johnson announced that
there would be no fighting, she grabbed Payne and swung him
around to get back into the vehicle. As soon as her back was
turned, Johnson testified that she heard a "pop"
from the direction in which the victim had been standing.
When she turned around to face the victim, she saw the
defendant standing over him, tucking a gun into his pants,
and then running toward Tremont Street, with a group of about
ten others. At that point, Johnson was screaming at
Payne because his friend had just shot her cousin.
no other witnesses who had been present that night were
called to testify at trial, Johnson's testimony was
corroborated, in part, by statements the defendant later made
to Joseph Burns. Burns and the defendant knew each other
because the defendant typically bought guns from Burns, in
exchange for drugs. When the defendant and Burns met up after
the shooting, Burns inquired about that night. The defendant
said that he and the victim "had words after the
club," and that the defendant subsequently "shot
him in the face." Burns also provided details about the
shooting that were not public knowledge at the
time. The Commonwealth presented testimony from
the defendant's roommate, Thomas Arrington, who had seen
the defendant with guns in the apartment on several
occasions. Arrington had asked the defendant if he was
involved in the shooting, and the defendant shrugged.
testimony also was corroborated by forensic evidence. A .22
caliber firearm, which had been discarded in nearby bushes on
Tremont Street, was discovered by police shortly after the
shooting. Two latent prints and a deoxyribonucleic acid (DNA)
profile were recovered from the firearm. A forensic examiner
opined that the palm print, found on the back of the firearm,
matched the defendant's. The major DNA profile taken from
the firearm also matched the defendant's. The jury returned
a verdict of guilty of murder in the first degree on a theory
of deliberate premeditation.
Disclosure of the confidential informant.
before trial, the defendant's counsel had received a copy
of a redacted report prepared by the Federal Bureau of
Investigation (FBI). The report stated that a
"cooperating witness" had heard that the "word
on the streets of Lynn" was that "PAYNE shot and
killed [the victim]," and that, at Payne's ...