Commonwealth v. Gaines

240 N.E.3d 193

COMMONWEALTH

v.Raymond GAINES.

SJC-13446

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 2024

August 29, 2024

Homicide. Evidence, Identification, Disclosure of evidence, Exculpatory. Identification. Practice, Criminal, Postconviction relief, Disclosure of evidence, Affidavit, New trial, Capital case. Police, Records.

Indictments found and returned in the Superior Court on May 16, 1975.

Following review by this court, 374 Mass. 577 (1978), a motion for a new trial, filed on November 30, 2021, was heard by Debra A. Squires-Lee, J.

A request for leave to appeal was allowed by Wendlandt, J., in the Supreme Judicial Court for the county of Suffolk.

The following submitted briefs for amicicuriae:

David Lewis, Assistant District Attorney, for the Commonwealth.

Merritt Schnipper for the defendant.

Chauncey B. Wood, Kevin S. Prussia, Madeleine Laupheimer, Asma S. Jaber, & Kaylee Y. Ding for Massachusetts Association of Criminal Defense Lawyers.

Isabel Burlingame & Jessica J. Lewis for American Civil Liberties Union Foundation of Massachusetts, Inc.

Matthew A. Wasserman & Lauren J. Gottesman, of New York, William Davison, Yana Grishkan, Elizabeth Foley, Sharon Beckman, & Radha Natarajan for Innocence Project, Inc., & others.

Katharine Naples-Mitchell for Criminal Justice Institute at Harvard Law School & another.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.

GAZIANO, J.

On December 10, 1974, Peter Sulfaro (victim) was shot and killed in his shoe repair shop during the course of an armed robbery. His fifteen year old son, Paul Sulfaro (Sulfaro or victim’s son), was the only witness to his murder. In the aftermath, three men were convicted of armed robbery and murder in the first degree: Jerry Funderberg, Robert Anderson, and Raymond Gaines (defendant). Nearly half a century after the defendant’s convictions, which this court affirmed in 1978 on the defendant’s direct appeal, and after repeated efforts by the defendant to procure postconviction relief, a judge in the Superior Court (motion judge) granted the defendant’s fourth motion for a new trial. Before us is the Commonwealth’s appeal from that decision.

No physical evidence tied the defendant to the scene. Instead, the Commonwealth relied on (1) Sulfaro’s eyewitness identification of the defendant; (2) testimony from David Bass and other witnesses placing the defendant in Bass’s apartment near the scene of the crimes shortly after the robbery; and (3) the defendant’s confession to Boston police Detective Peter O’Malley, which was overheard by a Boston police sergeant.

In granting the defendant’s motion for a new trial, the motion judge grounded her analysis on several factors. First, she found that newly discovered evidence - in the form of modern eyewitness identification science - "significantly undercuts all three pieces of evidence" relied on by the prosecution at trial. Second, she found that the defendant was prejudiced by the non-disclosure of exculpatory evidence that the Commonwealth was required to disclose under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), including two notes generated by Boston police officers and the pretrial arrest of a key witness against the defendant. Third, she similarly found that the defendant was prejudiced by the nondisclosure of Bass’s posttrial recantation of his testimony against the defendant.

The motion judge did not abuse her discretion in granting the defendant’s motion for a new trial because two of these factors are sufficient to indicate that justice may not have been done. First, new eyewitness identification research constitutes newly discovered evidence that would probably have been a real factor in the jury’s deliberations. Second, the defendant was prejudiced by the Commonwealth’s failure to disclose both a note relevant to the reliability of Sulfaro’s eyewitness identification and the fact that Bass was arrested by O’Malley and faced pending charges during the defendant’s trial. Accordingly, we affirm.

Additionally, although we do not agree with the motion judge’s assessment of the Bass recantation, we read Mass. R. Prof. C. 3.8, as appearing in 473 Mass. 1301 (2016) (rule 3.8), to require the disclosure of any witness recantation to defendants and, where applicable, their counsel and codefendants.¹

Background. "We present the relevant factual and procedural background as taken from the record, reserving certain details for the discussion." Commonwealth v. Tavares, 491 Mass. 362, 363, 202 N.E.3d 1238 (2023).

1. Facts. At about 4 p.m. on December 10, 1974, three men entered the victim’s shoe repair store in the Roxbury section of Boston, where the victim’s son was minding the register. Two were armed. The unarmed man, who Sulfaro later testified was the defendant, requested change for a dollar. When the victim’s son opened the register, the unarmed man reached in to take the cash. As the victim’s son attempted to close the register, the two armed men drew guns. At this point, the victim came from the back of the store. The two armed men opened fire, and all three men then fled the scene. The victim was shot and killed by a gunshot wound to the head.

Sulfaro provided descriptions of the three men to responding police officers. He told investigators that one of the armed men, Funderberg, had the following physical characteristics: "[s]licked back, processed hair, [a] moustache, [B]lack, maybe twenty years of age', [and a] slim build." The man who grabbed the cash from the register - the defendant - was "wearing a hat." The other armed man, Anderson, had "straight back" hair with "a little reddish tint to it." Additionally, Sulfaro told the officers that all three men were Black and shared a similar height and build.

Investigating officers were approached by a woman outside of the shoe repair store, who directed them to go to a second-floor apartment in a nearby housing project, stating, "The ones you’re looking for are there." The apartment in question belonged to David and Lorene Bass,² a married couple who ran a "shooting gallery" from the apartment where people could pay David to use his syringes to inject heroin. Police arrived at the Basses’ apartment at around 5:30 p.m. There, they encountered David and Lorene, as well as Lorene’s son Antonio Daniels and family friend Alfred Hamilton.³ After speaking with David for about ten minutes, the officers left the apartment.

Although the officers did not see the defendant in the Basses’ apartment, trial testimony from David, Lorene, and Hamilton placed the defendant there at the same time as police on the day of the murder. Specifically, the defendant, Anderson, and Funderberg allegedly arrived at the apartment at around 4:30 p.m. appearing "out of breath." As claimed by David and Lorene, Anderson and Funderberg were armed with guns when they arrived, and Anderson said to the other two men that when "you get in the line of fire, you get hurt, too." The three men "got $120" from the robbery, according to Lorene, and went to the back room of the apartment "to do what [they] intended to do." After the three men went into the back room to inject heroin, police arrived at the apartment, which prompted the defendant to jump out a window, according to both David and Lorene.

On December 11, 1974, the day after the murder, Boston police showed Sulfaro sixty-one photographs of Black men living in the local housing project for purposes of identifying the robbers. None of the photographs depicted the defendant. From the array, Sulfaro selected two photographs, one depicting Hamilton and the other depicting Daniels.⁴

After speaking with David and Lorene, among others, O’Malley and other police officers went to Sulfaro’s home sometime between late January and mid-February 1975 to show him a second set of photographs depicting possible suspects. According to Sulfaro’s trial testimony, just before O’Malley arrived to administer the second identification procedure, a Detective "Murphy" called Sulfaro on the telephone, indicating that Sulfaro had "identified the wrong persons" on the first attempt. The second set of photographs presented to Sulfaro remained the same as the first but included four new photographs: one of the defendant, one of Funderberg, and two of Anderson. When officers showed Sulfaro the second set, he picked out Funderberg and the defendant as suspects. O’Malley made no written record of this selection and obtained arrest warrants for both Funderberg and the defendant the next day.

O’Malley later was informed that the defendant had been arrested in Iowa after cleaning staff discovered a knife in his motel room. In May 1975, O’Malley, along with Boston police Sergeant Stephen Delosh and another officer, travelled to Iowa to take custody of the defendant from an Iowa county jail. After gaining custody of the defendant, the group embarked on a return flight to Boston.

According to O’Malley’s trial testimony, during the flight, the defendant admitted that he was at the scene of the crimes. The defendant said that "the boy [(the victim’s son)] would never be able to recognize him because [the defendant had] pulled his hat down on his forehead and [had taken] out his teeth," referring to the defendant’s upper dentures. Although O’Malley did not record this confession or make any written record of its occurrence, he received a look from Delosh signaling that he too had heard the defendant’s confession. At trial, Delosh affirmed that he had overheard the defendant’s confession.⁵

2. Procedural history. On May 16, 1975, a grand jury indicted the defendant for armed robbery and murder in the first degree.

a. Motion to suppress. On June 9, 1976, the defendant filed a motion to suppress the second identification procedure, asserting that it was "unduly suggestive." At the motion hearing, the defense argued that the use of duplicate photographs in the second identification procedure warranted the...