Commonwealth v. Tavares, 491 Mass. 362

Background

Omay Tavares was convicted in 2011 of first‑degree murder for a January 7, 2010 shooting; conviction rested on cell‑site data, a latent fingerprint on the victim's doorknob, a photo of a gun on the defendant's phone, and other circumstantial evidence.
A Boston police proffer from a confidential informant, received by the prosecutor weeks before trial, identified an individual "H.H." as a potential third‑party shooter; a redacted copy was not provided to defense counsel until one day before trial.
Trial counsel received expert funds but did not retain an investigator; he did not request a continuance, interview H.H. when H.H. appeared during empanelment, or otherwise use the proffer at trial and did not inform Tavares of the proffer.
At trial counsel argued misidentification and failure to investigate other leads (a Bowden defense), but did not rely on the proffer evidence; Tavares was convicted on theories of deliberate premeditation and extreme atrocity or cruelty.
On postconviction review, new counsel moved for a new trial claiming ineffective assistance for failing to investigate/use the proffer; the motion judge granted a new trial and the Commonwealth appealed.
The SJC affirmed: counsel’s failure to investigate the proffer was constitutionally ineffective and the omitted evidence was material to the defense.

Issues

Issue	Commonwealth's Argument	Tavares's Argument	Held
Whether counsel's failure to investigate and use the confidential‑informant proffer constituted ineffective assistance	Counsel’s choices were reasonable; the proffer was not clearly exculpatory and could be inculpatory	Counsel unreasonably failed to investigate or seek a continuance, and did not inform the defendant	Court: counsel’s conduct fell measurably below expected performance; new trial allowed
Whether the proffer was exculpatory and prejudicial under Saferian	Proffer might support alternate theories (e.g., felony‑murder) or be inculpatory; not necessarily likely to change outcome	Proffer would corroborate misidentification, support a third‑party culprit defense, and undermine prosecution witnesses	Court: proffer was sufficiently exculpatory/material to satisfy Saferian prejudice prong and could have raised reasonable doubt
Proper standard of appellate review for grant of a new trial in a first‑degree murder case	(Implicit) apply stringent review or §33E oversight because underlying conviction is first‑degree murder	Grant of a new trial should be reviewed for error of law or abuse of discretion, not §33E unless on plenary direct appeal	Court: review is for error of law or abuse of discretion; §33E applies only to plenary direct appeals in first‑degree murder cases
Whether hearsay/inadmissibility or speculative alternate theories negate the prejudice claim	Proffer contains multiple hearsay layers and might have led to an alternate theory (felony‑murder) that still supports conviction	Even if hearsay issues exist, the proffer’s investigative value to prepare defense sufficed to show prejudice	Court: did not decide admissibility; hearsay concern and speculative alternate theories do not defeat claim that counsel’s failure prejudiced the defense

Key Cases Cited

Commonwealth v. Saferian, 366 Mass. 89 (1974) (establishes two‑part ineffective‑assistance test).
Strickland v. Washington, 466 U.S. 668 (1984) (reasonableness of investigation judged under deferential standard).
Commonwealth v. Bowden, 379 Mass. 472 (1979) (duty to pursue alternative leads/defense related to police investigation).
Commonwealth v. Long, 476 Mass. 526 (2017) (duty to investigate as foundation of effective assistance).
Commonwealth v. Alvarez, 433 Mass. 93 (2001) (standard of review when new trial is allowed on appeal).
Commonwealth v. Alcide, 472 Mass. 150 (2015) (failure to use significant discovery supporting third‑party culprit defense may be ineffective).
Commonwealth v. Phinney, 446 Mass. 155 (2006) (failure to read/use exculpatory police reports can be ineffective).
Commonwealth v. Pope, 489 Mass. 790 (2022) (what counts as exculpatory evidence).
Commonwealth v. Quiles, 488 Mass. 298 (2021) (discussion of alternate theories and jury instructions).
Commonwealth v. Diaz Perez, 484 Mass. 69 (2020) (clarifies limits on applying §33E when appeal from new trial decision is pending).