COMMONWEALTH VS. ROBERT L. UPTON.
SJC-11459
Supreme Judicial Court of Massachusetts
February 19, 2020
LOWY, J.
Barnstable. October 2, 2019. - February 19, 2020. Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Homicide. Evidence, Conflicting statements of witness, Credibility of witness, Impeachment of credibility, Prior misconduct. Witness, Credibility, Impeachment. Practice, Criminal, Agreement between prosecutor and witness, New trial, Capital case.
Indictments found and returned in the Superior Court Department on December 18, 2009.
The cases were tried before Gary A. Nickerson, J., and motions for a new trial, filed on December 31, 2014, and February 2, 2018, respectively, were considered by him.
Theodore F. Riordan (Deborah Bates Riordan also present) for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.
Background. We recite facts that the jury could have found and that are necessary to resolve the defendants’ appeal, reserving some facts for later discussion. Commonwealth v. Barry, 481 Mass. 388, 390 (2019), cert. denied, 140 S. Ct. 51 (2019).
On the night of September 29, 2009, the defendant and his nephew, Christopher Manoloules, went to the Hyannis house of the victim, Aris Manoloules. The next day, the police found the victim shot four times, including once in the back of his head.
The murder plot involved a complicated family dynamic stemming from the 2007 death of the family matriarch, who had had three children: Treefon Manoloules, Irene Manoloules, and the victim. The matriarch bequeathed her entire $2 million estate to the victim, who had been her sole caretaker while she suffered from multiple sclerosis. The defendant‘s sister joined the Manoloules family by marrying Treefon, and Christopher, who was seventeen at the time of the murder, was their son.2
Christopher was a troubled youth, and his father exacerbated those problems. Christopher testified that when he was fifteen years old, Treefon had him illegally drive a vehicle and buy bulk amounts of marijuana. In addition, after the death of Christopher‘s grandmother,
In May 2009, the defendant moved in with his girlfriend. Between then and September 2009, the defendant experienced significant financial difficulty, including the loss of his job in July. He owed his girlfriend‘s father $10,000, and a car dealership repossessed, for lack of payment, a $77,000 Mercedes vehicle that he had purchased for his girlfriend in July 2009. It was during this time that Treefon reached out to the defendant to mentor Christopher.
During the week leading up to the murder, the defendant, in short order, fostered a criminal entrepreneurship in his nephew. The defendant informed Christopher that an individual was going to kill the defendant‘s older daughter if the defendant did not repay a debt of $165,000. As this alleged threat involved his cousin, Christopher wanted to help. The defendant proposed several plans to obtain the money, including theft of automobiles. Christopher asked one of his friends to assist in the endeavor. When, after a couple of days, the threesome failed to obtain money illicitly, Christopher spoke to Treefon about the defendant‘s predicament.
With Christopher and Christopher‘s friend present, Treefon offered to pay the defendant $165,000 to kill the victim by shooting him. On the day of the murder, Treefon insisted that the defendant purchase a gun; the defendant complied, buying a nine millimeter Ruger pistol and a box of ammunition. Treefon told Christopher to use a ruse to convince the victim to allow Christopher, with the defendant in tow, to visit the victim at his Hyannis house. Despite having offered to pay the defendant to kill the victim, Treefon assured Christopher that the real plan involved only stealing the matriarch‘s jewelry.
Christopher testified that the defendant drove him to the victim‘s house. They entered through the unlocked front door, and then sat with the victim in his family room. Christopher excused himself on the pretense of going to the bathroom, but he instead proceeded to search the victim‘s bedrooms for the jewelry. Finding none, Christopher called the defendant into the kitchen, informed him that there was no jewelry, and asked to leave. The defendant pulled out the Ruger, cocked the hammer, and walked back into the family room where the victim was watching a Red Sox game. Christopher heard four gunshots.
That same day, Treefon requested that the police conduct a wellness check on the victim. Shortly after 5:35 P.M., the police discovered the victim‘s body on the floor of his family room, with four spent shell casings in the area. At around midnight, the police arrested Christopher at his parents’ house.
On October 1, 2009, the police interrogated the defendant, and he told a story littered with inconsistencies and denials. He admitted to buying the Ruger and ammunition on September 29, 2009, but claimed that he had not seen the gun or ammunition since that night after he locked the gun in a case and placed the case and the ammunition in the trunk of his car. The defendant also denied being present on Cape Cod on the night of the murder, but later acknowledged that he drove there with Christopher. The defendant subsequently admitted to dropping Christopher in a Hyannis parking lot between 9 P.M. and 10 P.M. so that Christopher could meet with an unidentified individual. The defendant stated that he had remained in the vehicle. He justified his earlier misleading statements as an attempt to protect Christopher, and he never provided details about being at the victim‘s house.
On December 11, 2009, the Commonwealth indicted Christopher for murder in the first degree, assault by means of a dangerous weapon with the intent to murder, aggravated assault and battery with a deadly weapon, and armed assault in a dwelling. On December 18, 2009, the Commonwealth indicted the defendant on the same charges.
In July 2010, Christopher decided to cooperate with the police investigation and the prosecution. He told investigators about Treefon‘s orchestration of the murder plot and identified the defendant as the shooter. Christopher then testified for the Commonwealth at Treefon‘s trial for murder,3 but the jury acquitted his father on all counts.
The Commonwealth did not rely solely on Christopher‘s testimony to tie the defendant to the murder. Christopher‘s friend testified that he had heard Treefon offer to pay the defendant to kill the victim. In addition, forensic evidence established that the defendant‘s Ruger fired the bullets that killed the victim. According to the testimony of the defendant‘s girlfriend, she found the gun in her basement days after the defendant‘s interrogation and believed that the defendant had hidden it there after she demanded that he remove it from her home. Moreover, the Commonwealth‘s ballistics expert testified that four bullets were missing from the defendant‘s ammunition case, and that the bullets in the ammunition case were the same type of ammunition fired from the defendant‘s Ruger at the victim.
The Commonwealth also established that the defendant suffered from substantial financial woes, discussed supra. Significantly, on the day of the murder, the defendant sent a text message to a salesperson at the Mercedes dealership, in which the defendant expressed his belief that he would soon have enough money to pay for the Mercedes, and in which the defendant also stated that he would be getting the money from his “brother-in-law.” The defendant did not testify.
Discussion.
1. Standard of review.
Because we consider the “defendant‘s direct appeal from a conviction of murder in the first degree together with an appeal from the denial of a motion for a
2. Defendant‘s second motion for a new trial.
“[T]he Commonwealth has an obligation to disclose the terms of any agreement, promise, or inducement proffered to a testifying witness before trial, and . . . a failure to do so may violate the defendant‘s right to due process.” Commonwealth v. Rebello, 450 Mass. 118, 122 (2007). See Brady, 373 U.S. at 87. Despite the denials by Christopher and the prosecutor that any deal existed, the defendant argues that newly discovered evidence demonstrates that such a deal did exist in violation of Brady. He asserts that he deserves a new trial because that evidence raises questions about the credibility of Christopher, the Commonwealth‘s key witness at the defendant‘s trial.
The circumstances giving rise to the defendant‘s claim are as follows. Sometime after the victim‘s death, Treefon and his sister, Irene, each inherited one-half of the victim‘s $2 million estate. As executrix of the victim‘s estate, Irene tried to recoup Treefon‘s share by filing a wrongful death action (civil action) against Treefon.5 The trial in this action was held in 2016, three years after the defendant‘s trial. Christopher appeared as a witness defending Treefon, testifying that he had entered into an undisclosed plea deal with the Commonwealth at the time of both Treefon‘s and the defendant‘s criminal trials, notwithstanding his testimony to the contrary before the grand jury and at those trials. The jury in the civil action found Treefon not liable for the victim‘s death.
Following Christopher‘s testimony in the civil action (civil action testimony), the defendant filed a second motion for a new trial, which is part of this appeal, alleging that Christopher‘s civil action testimony, the jury‘s subsequent finding of no liability for
The motion judge, who was also the trial judge, denied the second motion for a new trial without holding an evidentiary hearing, but issued a detailed memorandum of decision outlining why the defendant‘s evidence was not credible and did not materially demonstrate that the prosecutor and Christopher had entered into an undisclosed plea deal in violation of Brady. The judge also explained why Christopher‘s testimony did not comprise impeachment evidence sufficient to grant a new trial. This consolidated appeal from the defendant‘s convictions and the orders denying both of the defendant‘s new trial motions followed.
a. Decision not to hold an evidentiary hearing.
When considering a motion for a new trial, a judge “may rule on the motion ‘on the basis of the facts alleged in the affidavits without further [evidentiary] hearing if no substantial issue is raised by the motion or affidavits.‘” Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), quoting
To demonstrate an adequately substantial issue to receive an evidentiary hearing, the defendant‘s submissions “need not prove the [motion‘s] factual premise . . . but they must contain sufficient credible information to cast doubt on the issue” (quotations and citations omitted). Goodreau, 442 Mass. at 348. When examining such evidentiary submissions, motion judges who also served as trial judges can use their “knowledge and evaluation of the evidence at trial” (citation omitted), Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), to “consider whether holding a hearing will add anything” to the credibility or materiality of the affidavits submitted. Goodreau, supra.
We review a judge‘s decision to deny a motion for a new trial without holding an evidentiary hearing “for a significant error of law or other abuse of discretion” (citation omitted). Commonwealth v. Bonnett, 482 Mass. 838, 843-844 (2019). See Barry, 481 Mass. at 401. This court extends “special [or substantial] deference” in situations such as this where the motion judge also conducted the trial, Commonwealth v. Grace, 397 Mass. 303, 307 (1986), and thus was in a “superior position to assess the credibility of the defendant‘s claims” of an undisclosed plea deal. Commonwealth v. Freeman, 442 Mass. 779, 792 n.14 (2004). Reversal for abuse of discretion in such circumstances “is particularly rare” (citation omitted). Commonwealth v. Rice, 441 Mass. 291, 302 (2004). We will reverse the judgment only if the judge made “a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives” (quotations and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The judge here did not err in finding that the defendant‘s evidence of a Brady violation, including the submitted affidavits, Christopher‘s plea, and Christopher‘s civil action testimony, did not create a substantial issue warranting an evidentiary hearing because the evidence was not sufficiently credible to “cast doubt on the issue” (quotations and citation omitted). Goodreau, 442 Mass. at 348.
i. Lack of affidavits.
A judge may deny a motion for a new trial without an evidentiary hearing where the moving party “suspicious[ly]
ii. Plea agreement.
Christopher‘s guilty plea also does not raise a substantial issue requiring an evidentiary hearing. Even though a favorable disposition for a cooperating witness following testimony can, when combined with other strong evidence, raise a substantial issue to cast doubt on a jury‘s conclusion, that situation does not present here. See Hill, 432 Mass. at 710-711.
In his second motion for a new trial, the defendant attempted to explain how the facts in his case align with those in Hill, 432 Mass. at 716, where we held that the key witness‘s later plea provided grounds for a new trial. As the judge here properly determined, the defendant‘s arguments are unavailing. In Hill, we affirmed an order for a new trial because the key witness received a plea deal that reduced his possible sentence by at least twelve and one-half years from the sentence that he would have received under his original indictment, in part because during his testimony at the defendant‘s trial, the witness admitted to conduct that should have carried a significantly higher penalty, thus supporting an inference that the witness had an expectation of “substantial consideration.” See id. at 711-712. Although Christopher also received a more favorable sentence than what one would have expected based on his original indictment for murder in the first degree, he distanced, rather than inculpated, himself from his murder charge during his testimony at the defendant‘s trial.
Moreover, defense counsel admitted at trial that his only factual evidence was an attorney‘s affidavit, attesting to having overheard a conversation outside of Treefon‘s criminal trial, in which an assistant district attorney unrelated to Treefon‘s or the defendant‘s criminal trials stated that Christopher would receive a plea of murder in the second degree for his testimony at Treefon‘s trial. Defense counsel then confessed that the motion relied in part on his “subjective understanding” that prosecutors in Barnstable County often violated Brady by withholding evidence of plea deals with cooperating witnesses. Instead of providing concrete evidence to bolster his view, defense counsel posited that “[i]t strains credulity to think that Christopher . . . , who is charged with a first degree murder, testified in the last trial for the Commonwealth, is going to testify in this trial for the Commonwealth and has nothing -- nothing -- nothing unspoken, nothing tacit -- in other words, he‘s going to walk out of here after that trial thinking in his head that he could still get prosecuted for first degree murder. That‘s rubbish. That‘s not true.” As attractive as his rhetoric may be, it is not legally persuasive. Cf. Commonwealth v. Jackson, 428 Mass. 455, 458-459 (1998) (discussing defense counsel‘s persuasive, yet legally unsuccessful, arguments
Lastly, the defendant cherry-picked statements at Christopher‘s plea hearing in an endeavor to align the facts in his case with those in Hill, 432 Mass. at 708, where the prosecutor noted at a hearing on the key witness‘s plea deal that the Commonwealth had offered a lighter sentence as a “quid pro quo” for the witness‘s testimony. The prosecutor here admitted that Christopher received a plea deal in part because of his testimony against Treefon and the defendant at their criminal trials. Unlike in Hill though, the comments by the prosecutor and Christopher‘s counsel at the plea hearing weigh against the defendant‘s position, and the defendant‘s selectively quoted words and phrases from the plea hearing, taken out of context and contrary to their intended meaning, are not convincing.8
In sum, the judge made no “clear error of judgment,” L.L., 470 Mass. at 185 n.27, in deciding that none of the evidence concerning
iii. Credibility of Christopher‘s testimony at the civil trial.
In the context of a motion for a new trial “based on recantation by a material witness,” the motion judge “grave[ly] consider[s] . . . the credibility of the witness‘s new testimony” (citation omitted), Commonwealth v. Waters, 410 Mass. 224, 231 (1991), based on the judge‘s evaluation of the submitted evidence “in light of factors pertinent to credibility, including bias, self-interest, and delay,” Commonwealth v. Torres, 469 Mass. 398, 403 (2014). The judge examined Christopher‘s civil action testimony in light of Christopher‘s earlier trial appearances and grand jury testimony. See Commonwealth v. Santiago, 458 Mass. 405, 416 (2010). Even though Christopher was the Commonwealth‘s key witness and therefore his testimony was “particularly vulnerable to even slight blows to its credibility,” Commonwealth v. Collins, 386 Mass. 1, 10 (1982), the judge determined that Christopher‘s civil action testimony alleging the existence of a secret plea agreement did not raise a substantial issue sufficient for an evidentiary hearing because it was unreliable, self-serving, and unworthy of further examination. See Torres, 469 Mass. at 403. The judge concluded that Christopher provided his civil action testimony to protect his father, and by extension his mother and sisters, from losing their half of the victim‘s $2 million estate in Irene‘s wrongful death suit. There was no abuse of discretion.
To sufficiently demonstrate that Treefon actually had no connection to or responsibility for the victim‘s death, Christopher needed to recant his earlier testimony incriminating Treefon. Christopher asserted that his father “deserve[d] to win.” To that end, Christopher outright contradicted his earlier testimony regarding the plea deal, and used the alleged “secret, unwritten plea agreement” to explain his previous testimony against Treefon as a strategy encouraged by his attorneys to avoid a life sentence. In addition, throughout his civil action testimony, Christopher conveniently forgot facts or conversations related to Treefon‘s involvement, while having little difficulty remembering most details about the murder not implicating his father, including that the defendant killed the victim. Although not stating that his previous testimony painting his father as the mastermind of the victim‘s death was false, Christopher repeatedly claimed not to remember
b. Denial of the second motion for a new trial based on newly discovered evidence of a Brady violation.
For the same reasons as stated supra, the judge did not abuse his discretion in finding that there was no undisclosed plea deal that would require granting the defendant‘s second motion for a new trial based on the existence of a Brady violation. See Grace, 397 Mass. at 305-306.9
Even if we were to assume that Christopher‘s civil action testimony were newly discovered and credible evidence, the defendant could only prevail on the second motion for a new trial if that newly discovered evidence would have been a “real factor” in the jury deliberations so as to “cast real doubt on the justice of the conviction.”10 Grace, 397 Mass. at 305. See Bonnett, 482 Mass. at 844. Although Christopher‘s civil action testimony does not raise a substantial issue about the existence of a Brady violation, it may constitute impeachment evidence of the Commonwealth‘s
First, even if the jury had heard the additional evidence from the civil action, the judge did not abuse his discretion by concluding that it did not cast real doubt on the jury‘s conviction given the remaining evidence submitted by the Commonwealth. See Amaral, 482 Mass. at 511.
In addition to the testimony of Christopher‘s friend corroborating the defendant‘s participation in the murder scheme, the defendant admitted during his interrogation to being with Christopher on Cape Cod at around the time of the murder, without a plausible alternative reason for being there, and to purchasing the Ruger and the ammunition that killed the victim. As the judge noted, there was a “web of evidence” strongly supporting the defendant‘s guilt, including his hiding the murder weapon, the ballistics evidence, and the defendant‘s text message, indicating the defendant‘s expectation of an influx of cash from his brother-in-law on the day of the murder. The judge did not abuse his discretion by concluding that such evidence was “strongly persuasive” and therefore that Christopher‘s civil action testimony would not have been a “real factor” in the jury‘s deliberations so as to cast real doubt on the jury‘s verdict (citation omitted). Bonnett, 482 Mass. at 844.
The defendant‘s version of events, which strained credulity, bolstered the Commonwealth‘s affirmative evidence. The defendant claimed that Christopher swiped the gun from the trunk of the defendant‘s car and then shot the victim without the defendant‘s knowledge, all while the defendant waited in his car in a random parking lot in Hyannis. The defendant kept the key to the gun case with his keys to the car, which, according to his responses during interrogation, he never let out of his sight on the night of September 29, 2009. The girlfriend found the case locked in her basement days
Second, the jury also knew that defense counsel‘s primary trial strategy was to impeach Christopher‘s credibility, accomplished by repeated assertions during cross-examination and in closing. Specifically, defense counsel highlighted concerns about Christopher testifying due to an undisclosed plea deal and about Christopher‘s truthfulness. In other words, “to the extent that [Christopher] had the sword of Damocles hanging over him in the form of a murder charge, and thus had incentive to please the prosecution in the hopes of establishing good will and securing leniency even absent any explicit agreement, this was argued by defense counsel at trial,” Jackson, 428 Mass. at 458, and considered by the jury.12 The judge therefore did not err in finding that admitting this testimony at trial would not have materially affected
3. Review under G. L. c. 278, § 33E.
As part of our plenary review, we note that, on direct examination, Christopher testified in response to the prosecutor‘s question, “What happened next?” as follows:
[The defendant] -- he got in the car. And he said -- he said something like -- his hand was shaking; and he said something about he‘s not nervous. He said, ‘I‘m not nervous.’ He said, ‘I‘ve done this before.‘”
The defendant did not object to this statement at trial, in either of his motions for a new trial, or as a part of his direct appeal to us pursuant to
The prosecution “may not introduce evidence that a defendant previously has misbehaved . . . for the purposes of showing his bad character or propensity to commit the crime charged” (citation omitted). Commonwealth v. Morgan, 460 Mass. 277, 289 (2011). See
We therefore conclude that the verdict of murder in the first degree is consonant with justice, and we decline to exercise our authority under
Conclusion. For the reasons stated, we affirm the defendant‘s convictions and the orders of the Superior Court denying the defendant‘s motions for a new trial.
So ordered.