by Matt Clarke

The Supreme Judicial Court of Massachusetts affirmed the granting of a motion for new trial in a murder case based on trial counsel’s failure to investigate exculpatory information provided by the prosecutor.

A jury convicted Omay Tavares of first-degree murder. The prosecution’s evidence supported its theory that a six-foot tall light-skinned man wearing a hoodie and skullcap and calling himself “O” had a loud argument with the victim at his apartment. “O” then pulled a 9mm pistol from his waistband and fired three shots into the victim. However, the two prosecution witnesses who saw the shooter at the apartment failed to identify Tavares when shown a photo array.

Cellphone records indicated that Tavares was in the vicinity of the apartment when the shooting occurred and was the last person to call the victim. Tavares explained that and his fingerprint being on the apartment’s exterior doorknob by telling police he had previously been to the apartment and argued with the victim over the price he paid for some marijuana. A search of Tavares’s apartment turned up marijuana, $500 in cash, and some clothing similar to that worn by the shooter, but no murder weapon was recovered.

Two weeks prior to trial, the prosecutor told trial counsel Boston police had a proffer from a confidential informant alleging another person was the shooter but did not provide a redacted copy of the proffer until the day before the trial was scheduled to begin. The proffer stated that two men went to the victim’s apartment to rob him. One of them, H.H., was armed with a 9mm Taurus handgun and shot the victim when he lunged for the gun.

Trial counsel neither requested a continuance to investigate the information in the proffer letter, nor did he inform Tavares of it. At trial, counsel argued that police failed to investigate other leads but did not use the proffer evidence to support that defense. He never interviewed H.H., who appeared in court while the jury was being empaneled and was ordered by the judge to be available for trial.

When Tavares obtained new counsel posttrial, he moved for a new trial based on trial counsel’s failure to investigate the proffer evidence. The motion was granted, and the Commonwealth appealed.

The Court began its analysis by setting forth the governing standards for a claim of ineffective assistance of counsel (“IAC”). Under Massachusetts Rules of Criminal Procedure 30(b), a judge “may grant a new trial at any time if it appears that justice may not have been done.” For a motion based on a claim of IAC, the defendant must establish that (1) counsel’s performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and (2) the deficient performance “likely deprived the defendant of an otherwise available, substantial ground of defense.” Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974).

The Court stated that when reviewing a decision to grant a new trial, the proper standard of review is for error of law or abuse of discretion. Commonwealth v. Lessieur, 175 N.E.3d 372 (Mass. 2021). Notably, the Court took the opportunity to clear up some confusion on the issue caused by its own prior decision. Tavares argued that the proper standard of review is the substantial likelihood of a miscarriage of justice pursuant to G.L.c. 278, § 33E, citing Commonwealth v. Diaz Perez, 138 N.E.3d 1028 (Mass. 2020). The Court acknowledged that it erroneously reviewed the decision to grant a new trial based on IAC under the § 33E standard in Diaz Perez because murder in the first degree was involved. However, that was incorrect because “the § 33E standard applies only in connection with the plenary review of direct appeals from convictions of murder in the first degree, it was not the appropriate standard to apply to review the decision to grant a new trial alone,” the Court clarified. See Commonwealth v. Hill, 739 N.E.2d 670 (Mass. 2000).  

The duty to investigate is fundamental to effective assistance of counsel, the Court observed, because strategic decisions in defending a client can only be made when sufficiently informed of all possible options. Commonwealth v. Long, 69 N.E.3d 981 (Mass. 2017). When an IAC claim is reviewed, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances … [and counsel] has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668 (1984). 

Turning to the present case, the Court first explained that a proffer is significantly different than “a rumor or neighborhood gossip” because it “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.” See United States v. Lopez, 219 F.3d 343 (4th Cir. 2000).

In light of the potential importance of the information contained in the proffer, trial counsel was required to provide a satisfactory explanation why he did not use that information in Tavares’ defense or even request a continuance to follow up on it, according to the Court. At the motion hearing, trial counsel claimed he failed to seek a continuance because he feared defense witnesses might not be available if the trial were delayed. The judge flatly rejected that explanation, noting that the defense’s primary witness “could not provide a confident alibi” and that there is nothing in the record to support counsel’s claimed concern. The judge ruled that trial counsel’s performance fell “measurably below that which might be expected from an ordinary fallible lawyer.”

For its part, the Commonwealth denied that trial counsel’s performance constituted IAC, arguing that the proffer evidence was actually more inculpatory than exculpatory because it confirmed the theory that Tavares was involved in the shooting.

The Court disagreed with the Commonwealth’s narrow definition of “exculpatory.” Quoting Commonwealth v. Pope, 188 N.E.3d 96 (Mass. 2022), the Court wrote: “[E]vidence is exculpatory if it provides some significant aid to the defendant’s case, whether it [(1)] furnishes corroboration of the defendant’s story, [(2)] calls into question a material, although not indispensable, element of the prosecution’s version of the events, or [(3)] challenges the credibility of a key prosecution witness.” 

Applying the foregoing definition, the Court stated that the proffer evidence “had the potential to aid the defendant in each of these ways.” The proffer evidence indicated that H.H. was the shooter, supporting Tavares’ mistaken identity claim; it undermined the prosecution’s theory that Tavares was the lone shooter; and it cast doubt on the credibility of two witnesses who stated that only one man visited the victim’s home on the night of the murder, reasoned the Court. 

The Court noted that the motion judge stated that the evidence against Tavares was “strong” but “not overwhelming.” Use of the proffered evidence could have raised reasonable doubt. Thus, the Court ruled that the motion judge did not abuse her discretion by ruling that trial counsel’s performance was constitutionally ineffective.

Accordingly, the Court affirmed the order granting the motion for a new trial. See: Commonwealth v. Tavares,202 N.E.3d 1238 (Mass. 2023).  

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