Commonwealth v. Watt

224 N.E.3d 377

COMMONWEALTH

v.Nyasani WATT.

SJC-13279

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 8, 2023.

Decided January 11, 2024.

Homicide. Constitutional Law, Assistance of counsel. Practice, Criminal, Postconviction relief, Assistance of counsel.

Indictments found and returned in the Superior Court Department on December 21, 2011.

Following review by this court, 484 Mass. 742 (2020), a motion for a new trial, filed on August 10, 2020, was heard by Mark D. Mason, J.

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

Elizabeth Doherty for the defendant.

Elisabeth Martino, Assistant District Attorney, for the Commonwealth.

Afton M. Templin, Committee for Public Counsel Services, North Attleboro, for youth advocacy division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.

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

BUDD, C.J.

In 2020, this court affirmed Nyasani Watt’s convictions of murder in the first degree and related offenses, as well as the denials of his motions for a new trial, after plenary review under G. L. c. 278, § 33E (§ 33E). Commonwealth v. Watt, 484 Mass. 742, 765, 146 N.E.3d 414 (2020). The defendant subsequently filed another motion for a new trial alleging, for the first time, that his trial counsel slept during critical portions of the trial, constructively depriving him of his constitutional right to counsel. A Superior Court judge (motion judge), who was not the trial judge, denied the motion without a hearing, and the defendant sought leave to appeal the denial from a single justice of this court pursuant to § 33E. The single justice reserved and reported this matter to the full court. For the reasons discussed infra, we reverse the order denying the defendant’s motion and remand this matter to the Superior Court for a new trial.¹

Background. The evidence presented in the defendant’s trial is summarized in Watt, 484 Mass. at 744-745, 146 N.E.3d 414. Facts concerning the postconviction pleadings and subsequent allegations against trial counsel are taken from the record and from the undisputed findings of the motion judge.

In 2013, the defendant and his codefendant, Sheldon Mattis, were convicted of murder in the first degree for shootings that killed sixteen year old Jaivon Blake and wounded fourteen year old Kimoni Elliott. Watt, 484 Mass. at 744, 146 N.E.3d 414. Following trial, the defendant’s trial counsel withdrew, and new counsel filed an appearance as the defendant’s appellate counsel (first appellate counsel). The defendant moved for postconviction relief and a new trial based on claims of extraneous juror influence. See id. at 757-761, 146 N.E.3d 414. Although the defendant raised with his first appellate counsel that his trial counsel slept during portions of the trial, first appellate counsel dismissed the issue as unmeritorious and did not investigate it further.

The defendant’s first motion, essentially-treated as a motion for a new trial, was denied in March 2015, and his subsequent motion for a new trial was denied in October 2017. At the defendant’s request, his first appellate counsel withdrew in December 2017. The defendant obtained a second, and his current, appellate counsel (second appellate counsel), who filed a supplemental motion in support of a new trial.² This motion was denied in July 2018. The defendant’s appeal from his convictions and from the denials of his motions for a new trial were consolidated before this court and received plenary review pursuant to § 33E. On December 10, 2019, after this court heard oral argument, second appellate counsel learned for the first time from the codefendaht’s trial counsel that the defendant’s trial counsel had slept during portions of the trial.³ Almost six months after oral argument, this court affirmed the defendant’s convictions and the orders denying his motions. Watt, 484 Mass. at 765, 146 N.E.3d 414. Approximately two months later, the defendant filed another motion for a new trial, contending that he was deprived of his right to counsel because his attorney was sleeping during critical parts of the trial. In support of this motion, the defendant submitted his own affidavit as well as affidavits from his second appellate counsel, his codefendant, his codefendant’s two trial attorneys, the two trial prosecutors, and his mother. Each affidavit described the affiant’s recollection as to whether trial counsel was observed sleeping during the trial and, if so, when and for how long.⁴

The defendant’s affidavit states that trial counsel "fell asleep a number of times during the trial," including during jury selection and the questioning of two witnesses, one possibly being Jeremiah Rodriguez, a key witness for the prosecution. The defendant’s affidavit further recounts that others in the court room, including the trial judge and prosecutor, witnessed trial counsel sleeping during portions of the trial, that trial counsel at one point was snoring, and that trial counsel tried to conceal his fatigued state.

One of the codefendant’s two trial attorneys attested that the defendant’s trial counsel slept at least once during testimony. The other attorney stated in his affidavit that the defendant’s trial counsel closed his eyes several times during the trial, but that he was uncertain whether trial counsel was sleeping.

One of the two trial prosecutors stated in his affidavit that he had observed the defendant’s trial counsel "dozing off" on multiple occasions during the trial, and that he recalled one specific instance in which he had to rouse trial counsel to show him a photograph before showing it to a testifying witness. The other trial prosecutor recalled being informed by another attorney at trial that the defendant’s trial counsel had nodded off during the examination of one witness.

The codefendant stated in his affidavit that he saw the defendant’s trial counsel "sleeping or nodding off" a number of times during the trial, and noted two spe- cific instances: during the testimony of an emergency medical technician and during the testimony of the younger brother of one of the victims. The defendant’s mother stated in her affidavit that trial counsel "nodded off to sleep" or "was dozing" at some points during the trial. She further stated that trial counsel appeared to be "sick" and "did not seem alert," and that he had informed her that he had "recently been hospitalized."

The defendant’s second appellate counsel recounted in her affidavit that after becoming aware of the allegation, she reached out to the jurors from the trial regarding whether they observed the defendant’s trial counsel sleeping. The one juror who responded did not recall anything specific about the defendant’s trial counsel. Second appellate counsel spoke with the defendant’s first appellate counsel, who confirmed that the defendant did raise "something" about trial counsel "being able to stay awake at trial," but that the defendant’s, first appellate counsel did nothing with the information because he believed there was no basis to pursue the claim.

The motion judge indicated that he credited the affidavits, all of which corroborated that trial counsel had fallen asleep multiple times during the trial. The motion judge nevertheless denied the defendant’s motion for a new trial, concluding that the defendant had waived the claim by failing to raise it on appeal or in a previous motion for a new trial, and that trial counsel’s slumber neither rose to the level of structural error nor prejudiced the defendant’s case.

[1, 2] Discussion. 1. Gatekeeper analysis. Because the defendant raised the issue of his trial counsel sleeping during the trial after this court had heard and decided his direct appeal, we review the appeal from the denial of the instant motion for a new trial only if the defendant presents "a ‘new and substantial’ issue that this court could not have considered in the course of plenary review." Commonwealth v. Gunter, 459 Mass. 480, 487, 945 N.E.2d 386, cert. denied, 565 U.S. 868, 132 S.Ct. 218, 181 L.Ed.2d 119 (2011). See G. L. c. 278, § 33E. We conclude that he has done so.

[3] Section 33E, the mechanism by which this court exercises plenary review of all convictions of murder in the first degree, provides this court with "extraordinary powers" to. "consider the whole case, both the law and the evidence, to determine whether there has been any miscarriage of justice." Dickerson v. Attorney Gen., 396 Mass. 740, 744, 488 N.E.2d 757 (1986). This unique form of review requires our consideration of issues raised by the defendant, as well as issues not raised, "but discovered as a result of our own independent review of the entire record." Id. Balancing the exercise of our extraordinary powers with the interests of judicial economy and finality, § 33E simultaneously limits a capital defendant’s "ability to appeal subsequent postconviction motions" following plenary review. Id. Pursuant to § 33E, such a defendant must first obtain leave to pursue an appeal from a single justice of this court, who acts as gatekeeper to determine whether the defendant "presents a new and substantial question which ought to be determined by the full court." G. L. c. 278, § 33E.⁵

[4] "The bar for establishing that an issue is ‘substantial’ in the context of the gatekeeper provision of § 33E is not high."

Gunter, 459 Mass. at 487, 945 N.E.2d 386. An issue is "substantial" if it is "a meritorious issue in the sense of being worthy of consideration by an appellate court." Id. Here, the defendant presents us with, a substantial issue, where he alleges that his trial counsel’s slumber deprived the defendant of his right to the assistance of counsel throughout his trial.

[5] Whether a defendant presents a "new" issue is a slightly more complex question.⁶ Gunter, 459 Mass, at 487, 945 N.E.2d 386. "An issue is not ‘...