Commonwealth v. HoodCommonwealth v. Hood
Background. 1. The murders of Kirk and Brown. We summarize the facts as recited by the prosecutor at the plea hearing and reserve certain details for later discussion. See Commonwealth v. Henry, 488 Mass. 484, 485 (2021). Where the plea colloquy did not identify an officer by name, we rely on the motion record only to supply that identifying context.
On September 29, 1993, Boston police officers responded to an apartment in the Mattapan section of Boston following a 911 call from a young child. When police arrived, they were let into the apartment by Brown‘s two year old son. Inside, they
In the following days, Detectives Daniel Keeler and John Brazil of the Boston police department interviewed, among other people, Nikki Coleman, one of Kirk‘s friends. Coleman told them that, on the afternoon of the murders, she spoke with Kirk on the telephone. During that call, Coleman could hear the voice of a man, whom Kirk identified as the defendant. Coleman was familiar with the defendant, having known him for several months. Coleman overhead Kirk and the defendant arguing about a gold chain that the defendant had loaned to Kirk, but that Kirk allegedly failed to return. In addition to describing her call with Kirk, Coleman gave police the defendant‘s Brockton address and identified him from a photograph.
Police discovered several outstanding warrants for the defendant, including one for the nonfatal shooting of Glenn McLaughlin in June of that year. The defendant had confronted McLaughlin and shot him once in the leg with a .25 caliber handgun. The bullet, which passed through McLaughlin‘s leg, was recovered by police and later compared to three bullets removed from Brown and Kirk‘s bodies. The Boston police department‘s
The defendant was arrested in Brockton on the outstanding warrants. While in custody, he asked to speak with the detectives who arrested him. He then gave Keeler and Sergeant Detective William Mahoney a detailed confession to the shootings of Brown and Kirk. The confession aligned with the physical evidence found in the apartment and included facts that only the killer would have known. The defendant also described what he had been wearing at the time of the shootings, including a green jacket and black boots. The police collected those items and sent them to the Boston police crime laboratory for testing. Preliminary tests were positive for blood, but the amount of blood was insufficient for blood typing.
The defendant told detectives that he argued with Kirk about the gold chain on the night of the murders. When Kirk refused to return the chain, she began escorting the defendant out of the apartment. The defendant then shot Kirk in the head. Brown fled into the bedroom where her infant daughter was sleeping. The defendant followed and shot Brown twice. He then returned to Kirk and shot her again before Brown‘s son pushed him out of the apartment. When asked why he killed Brown, the defendant said she was a witness who needed to be eliminated.
3. The murder of John Mulligan. The defendant‘s arguments on appeal are rooted in the investigation into the killing of Boston police Detective John Mulligan, the details of which are necessary context for our later discussion. The Mulligan murder has come before this court before. In Commonwealth v. Ellis, 432 Mass. 746 (2000) (Ellis I), S.C., 475 Mass. 459 (2016) (Ellis II), overruled in part by Commonwealth v. Britt, 465 Mass. 87, 100 (2013), we examined the investigation in detail.
On September 26, 1993, three days before Kirk and Brown were murdered, Mulligan was shot in his police vehicle outside a Walgreens pharmacy store in the Roslindale section of Boston. See Ellis I, 432 Mass. at 747. The investigation into Mulligan‘s death intersected with the investigation into the deaths of Kirk and Brown. The intersection stems from a police interview with Sean Ellis, who was living at the time with Kirk and Brown, his cousins. During that interview, Ellis placed himself, Kirk, and a third individual, Terry Patterson, at the same Roslindale Walgreens around the time of Mulligan‘s death. Ellis was later indicted and, after two mistrials, convicted of murder in the first degree for the killing of Mulligan. Id. at 749. Patterson was tried separately on a theory of joint venture and likewise convicted of murder in the first degree. See Commonwealth v. Patterson, 432 Mass. 767, 767-768, 770-771 (2000), S.C., 445 Mass. 626 (2005), overruled in part by Britt, 465 Mass. at 99-100.
Ellis filed a motion for a new trial, arguing that the police‘s investigation was tainted due to newly discovered evidence indicating that three detectives who investigated the Mulligan murder, including Brazil, were engaged in unrelated criminal conduct. See Ellis I, 432 Mass. at 764-765. At the
In 2013, Ellis filed a second motion for a new trial based on newly discovered evidence tending to show that Mulligan participated in “crimes of police corruption” with the detectives who investigated his murder, and other information that “provided . . . the police [with] possible third-party culprits.” Ellis II, 475 Mass. at 460. The motion was granted because six categories of newly discovered evidence established that the police did not vigorously pursue alternative leads and, coupled with the detectives’ conflict of interest in investigating Mulligan‘s murder, provided a strong defense under Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). See Ellis II, supra at 470.
We rejected the Commonwealth‘s contention that the newly discovered evidence added “nothing material” to what Ellis presented in his first motion for a new trial, reasoning that “[t]he complicity of [Mulligan] in the detectives’ malfeasance fundamentally changes the significance of the detectives’ corruption” because it provided a “powerful incentive to prevent
4. Motion to withdraw guilty pleas. Over the past several decades, the defendant has filed multiple motions to vacate his guilty pleas and for a new trial.2 In July 2020, the defendant filed the motion for a new trial that gives rise to this appeal. He sought to withdraw his guilty pleas on four grounds: the Commonwealth failed to disclose exculpatory evidence relevant to a possible third-party culprit defense, newly discovered evidence cast doubt on his guilt, his plea counsel was ineffective for failing to challenge a pretrial protective order, and his pleas were not voluntary. The evidence on which the defendant relied fell generally into two categories. The first consisted of materials from the Mulligan investigation, which were subject to a protective order that barred plea
The defendant filed two affidavits in support of the motion. In his first affidavit, he averred that (1) plea counsel told him that he had “no chance at trial” in light of his confession; (2) plea counsel sought discovery related to the Ellis and Patterson matters, but could not discuss or share it with the defendant; (3) the defendant never considered any of the information that “may have been in” the Ellis and Patterson matters; and (4) had the defendant known about this information, he would not have pleaded guilty.
In his second affidavit, the defendant averred that had he known about Mulligan‘s misconduct and that of the investigating detectives, some of whom were involved in the investigation of the Kirk and Brown murders, he would not have pleaded guilty. He further averred that his decision to plead guilty was based on several conversations he had with plea counsel, having weighed the Commonwealth‘s evidence, and plea counsel‘s opinion that the defendant‘s confession weighed heavily against a third-party culprit defense. Finally, he averred that he did not know that his plea counsel was prevented from sharing evidence from the Ellis and Patterson matters with him and, had he known this, he would not have pleaded guilty.
a. Factual findings. Based on the testimony and exhibits introduced at the evidentiary hearing, the motion judge found the following facts.
Between January 1994 and May 1995, the prosecutor sent plea counsel at least twenty-one transmittal letters detailing discovery material provided to the defendant. Based on the prosecutor‘s credited testimony, the motion judge found that the prosecutor‘s general practice was to review discovery packages to ensure they included everything that was described in the accompanying transmittal letter, and that the prosecutor followed that practice in the defendant‘s case. The motion judge further found that the defendant received the discovery materials referenced in those twenty-one letters because she credited plea counsel‘s testimony that he would have notified
Because plea counsel was aware that Kirk was Ellis‘s cousin and that she was alleged to have been with Ellis the night of Mulligan‘s murder, plea counsel sought discovery from the Mulligan investigation concerning Ellis and Patterson to support a third-party culprit defense that whoever killed Mulligan also killed Brown and Kirk. Between January and July 1994, plea counsel made various requests for discovery concerning the Mulligan investigation. He particularly sought any information that placed Kirk at the scene of Mulligan‘s murder, believing such information would help demonstrate a motive for whoever shot Mulligan to kill Kirk.
Ellis‘s counsel opposed the production of discovery prior to the conclusion of Ellis‘s trial, raising concerns that the material produced would be made public and deny Ellis a fair trial. After Ellis‘s second mistrial, a Superior Court judge (who was neither the plea judge nor the motion judge) ordered that the material be provided to plea counsel and his associate subject to a protective order barring them from discussing the material with or providing the material to anyone else, including the defendant. The subsequent discovery, detailed in an eleven-page discovery letter, was provided to plea counsel in April 1995, over one month before the defendant pleaded guilty.
The motion judge found that plea counsel had received most of the documents the defendant claimed had not been produced. The motion judge did not determine whether any particular document had been withheld from the defendant. Instead, the motion judge assumed that certain materials had not been produced and considered whether their absence mattered.
Those materials consisted of (1) two Federal Bureau of Investigation (FBI) reports describing information provided by a confidential informant, who claimed that Ellis admitted to assisting in Mulligan‘s murder; (2) two police reports that recounted statements made by Raven James -- an associate of Ellis -- that Ellis, who had access to a .25 caliber handgun before the Mulligan murder, “smiled and then looked at Patterson” when James asked who had killed Mulligan; (3) two
b. Denial of motion to withdraw guilty pleas. After discrediting the defendant‘s “self-serving” averments that he would not have pleaded guilty had he known of the Mulligan investigation material or the evidence of police misconduct from Ellis II, the motion judge concluded that this information would not have materially affected the defendant‘s decision to plead guilty. The motion judge reasoned that the material was either cumulative of other information already known by the defendant, did not significantly add to the “wealth” of information the defendant already possessed, or was unconnected to the investigation of Kirk and Brown‘s killings. For many of the
The motion judge also concluded that rejecting the plea offers would not have been rational in light of the Commonwealth‘s strong case. That case included the defendant‘s detailed confession, ballistic evidence linking the firearm used to shoot McLaughlin to the firearm used to shoot Kirk and Brown, and evidence placing the defendant at the scene at around the time of the murders. The judge also considered the benefit the defendant received from the pleas. By pleading guilty to murder in the second degree, he avoided mandatory sentences of life without the possibility of parole for murder in the first degree.
For those reasons, the motion judge was not persuaded that justice may not have been done and denied the defendant‘s motion. The defendant appealed, and we allowed his application for direct appellate review.
Discussion. A motion to vacate a guilty plea is treated as a motion for a new trial pursuant to
The defendant‘s claims arise against a troubling historical backdrop. The investigation into Mulligan‘s murder was later shown to have been compromised by serious police corruption, and that investigation intersected in important respects with the investigation into the murders of Kirk and Brown. That backdrop, however, does not relieve the defendant of his burden to connect the undisclosed or later-discovered information to his own case and to his own decision to plead guilty. After an evidentiary hearing, the motion judge concluded that the defendant failed to make that showing. The record supports that conclusion.
1. Exculpatory and newly discovered evidence, protective order, and ineffective assistance claims. The defendant first raises several claims that turn on what he did not know about the Mulligan investigation before entering his guilty pleas. He
These claims are doctrinally distinct, but they all rest on the same showing of prejudice or materiality. See Henry, 488 Mass. at 495, citing Scott, 467 Mass. at 360-361 (in context of motion to withdraw guilty plea, standard for newly discovered and withheld exculpatory evidence “borrow[s] from our
The Mulligan investigation information did not add any material evidence connecting Ellis, Patterson, or another third party to the killings of Kirk and Brown. For example, the FBI reports addressed Ellis‘s alleged role in Mulligan‘s murder, not the Kirk and Brown killings. Likewise, the Chung interviews
Additionally, although one of the hotline tips implicates a boyfriend in the killings and therefore provides a possible third-party culprit other than Ellis, it is speculative. See Commonwealth v. Acevedo, 492 Mass. 381, 390 (2023) (evidence proffered to mount third-party culprit defense “cannot be too remote or speculative” [citation omitted]). Without more, as the motion judge concluded, the Mulligan investigation material did not “significantly increase[] the strength or viability of any [of] Hood‘s defenses.”
In addition to the lack of connection, the Mulligan investigation material also was cumulative in important respects. Cf. Commonwealth v. Lykus, 451 Mass. 310, 326 (2008) (“Newly discovered evidence that is merely cumulative of evidence admitted at the trial will carry little weight“); Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992) (“If the
In sum, with the evidence in the Mulligan investigation material lacking connection to the victims’ murders, being cumulative, or both, the motion judge had adequate grounds to conclude that the defendant failed to establish a reasonable probability that he would not have pleaded guilty. While the defendant asserts, without explanation, that the material would have led him to reject the plea, the judge was not required to accept that assertion. See Commonwealth v. Mosso, 496 Mass. 768, 780 (2025) (“Proof of prejudice cannot be based on mere conjecture or speculation as to outcome” [quotation and citation omitted]).
The Commonwealth‘s case was strong. See Commonwealth v. Lavrinenko, 473 Mass. 42, 59 n.20 (2015) (strength of prosecution‘s case may be considered in assessing prejudice). Coleman identified the defendant as the man who had been speaking with Kirk in her apartment about the gold chain, placing him inside the apartment on the day of the murders. Jackson saw a Black male wearing a green jacket leaving Kirk and Brown‘s apartment around the time of the murders. In his confession, the defendant told police that he had been wearing a green coat when he committed the murders. Police later recovered a green coat with blood on it from the defendant‘s girlfriend‘s home. Ballistics evidence tied the firearm used in the murders to the firearm used to shoot McLaughlin, who identified the defendant in a photographic array. Most significantly, the defendant gave a detailed confession to the killings.
For these reasons, the motion judge did not err in concluding that the defendant failed to prove prejudice or materiality arising from the alleged nondisclosure, the later-discovered evidence, the protective order, or plea counsel‘s handling of that order.
2. Egregious police misconduct. The defendant next argues that his pleas should be vacated because they were rendered involuntary by egregious police misconduct. Specifically, he points to the police misconduct detailed in Ellis II and argues that because many of the same police officers and detectives -- including Keeler and Brazil -- were involved with the investigations of the murders of Mulligan, Brown, and Kirk, his guilty pleas should be vacated.
A defendant claiming egregious government misconduct must show that the misconduct “preceded the entry of his or her guilty plea,” was “undertaken by government agents,” and “occurred in the defendant‘s case.” Hallinan, 491 Mass. at 745. The last requirement is critical here. It requires “a nexus between the government misconduct and the defendant‘s own case.”
The additional misconduct evidence examined in Ellis II changed the significance of police corruption in the investigation of Mulligan‘s murder. It did not establish, however, that every intersecting investigation was infected. In Ellis I, 432 Mass. at 764-765, although Ellis had presented evidence of corrupt practices by detectives involved in his investigation, he was not entitled to relief in the absence of evidence suggesting that the detectives engaged in misconduct “in connection with the investigation of this defendant” (emphasis added). The same principle controls here.
The defendant failed to establish a link between the alleged police corruption and the investigation of the murders of Brown and Kirk. Ellis II involved corrupt officers who had specific incentive to short circuit the investigation into Mulligan‘s murder because Mulligan participated in the same criminal misconduct they sought to conceal. No comparable evidence exists here. There is no evidence that Brown or Kirk were involved in police corruption with Mulligan or with any of the corrupt officers.
The defendant argues that, if the Mulligan investigation was “poisoned” by police corruption, then the Brown and Kirk investigation was necessarily poisoned as well because the
At most, the defendant speculates that exculpatory evidence could have been “overlooked” because the Mulligan investigation was “rushed, biased, or inadequate.” That is not enough to establish a nexus between the alleged misconduct and the defendant‘s case. Cf. Commonwealth v. Cotto, 471 Mass. 97, 113 (2015) (“The defendant has offered no supporting evidence to substantiate this claim, and, in our view, it is wholly speculative“); Commonwealth v. Nelson, 90 Mass. App. Ct. 594,
3. Voluntariness of defendant‘s confession. Finally, the defendant challenges the voluntariness of his confession. He argues that the corrupt police officers coerced his confession and that, because the confession influenced his decision to plead guilty, he should be allowed to withdraw his guilty pleas. We disagree.
“A voluntary statement is one that is the product of a rational intellect and a free will, and not induced by physical or psychological coercion” (quotations and citation omitted). Commonwealth v. Williams, 486 Mass. 646, 659 (2021). The defendant bears the initial burden of “produc[ing] evidence
Order denying motion to vacate guilty pleas and for a new trial affirmed.
Notes
The record shows that the defendant previously raised many of the same arguments regarding the voluntariness of his confession. The parties do not brief whether direct estoppel bars him from raising those arguments again. See generally Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). Even assuming direct estoppel does not apply, the defendant‘s arguments do not raise a substantial risk of a miscarriage of justice. See Randolph, 438 Mass. at 293–294. Nor do they warrant any further discussion. See Commonwealth v. Sosa, 493 Mass. 104, 124 n.12 (2023), cert. denied, 145 S. Ct. 306 (2024). Many are unsupported by citation to legal authority and therefore do not rise to the level of appellate argument. See Commonwealth v. Cassidy, 470 Mass. 201, 209 n.9 (2014).