Commonwealth v. Bennett

Citations: 39 Mass. App. Ct. 531; 658 N.E.2d 187; 1995 Mass. App. LEXIS 856Docket: No. 94-P-1798

Court: Massachusetts Appeals Court; December 15, 1995; Massachusetts; State Appellate Court

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In the investigation of Carol DiMaiti Stuart's 1989 murder, Boston police Detective Peter O’Malley obtained a search warrant for the defendant's premises. During the search on November 10, 1989, a Brookline officer observed items linked to an armed robbery from October 2, 1989, leading to a subsequent warrant based on these observations. The seized items were used as evidence in the defendant's armed robbery trial, resulting in his conviction. The defendant first sought a new trial, claiming ineffective assistance of counsel, but this was denied in Commonwealth v. Bennett, 414 Mass. 269 (1993). He later filed a second motion asserting the discovery of new evidence and requested either a new trial or a Franks hearing, which was denied by the trial judge who found the evidence neither newly discovered nor sufficient for a Franks hearing.

The defendant appeals this denial, arguing he deserved a Franks hearing based on new evidence suggesting O'Malley signed an affidavit that he did not author. This evidence includes a 1993 disciplinary hearing transcript revealing Assistant District Attorney Thomas Mundy drafted the affidavit, O'Malley’s alleged admission regarding grand jury information, and his own earlier affidavit that purportedly concealed Mundy’s authorship. Additionally, the Supreme Judicial Court's footnote in the earlier case hinted at possible false statements in the affidavit related to probable cause. The proper procedure for challenging the veracity of a warrant affidavit based on newly discovered evidence is a Franks hearing, as established in Commonwealth v. Ramirez, 416 Mass. 41 (1993) and the U.S. Supreme Court's decision in Franks v. Delaware, 438 U.S. 154 (1978).

An evidentiary hearing requires more than conclusory claims; specific allegations of deliberate falsehood or reckless disregard for the truth must be made, supported by an offer of proof detailing the false portions of the warrant affidavit. The burden lies with the defendant to prove entitlement to such a hearing. In this case, the defendant failed to meet that burden, rendering it unnecessary to assess the validity of an affiant signing an affidavit prepared by another. Despite assertions that the authorship of the affidavit was concealed and contained grand jury information unknown to one affiant, the court found these claims to be speculative and lacking the required specificity to warrant a Franks hearing. A successful Franks challenge must demonstrate that a substantive portion of the affidavit is false or misleading, which was not established here. The court also noted that the defendant did not adequately present information to the motion judge that could substantiate claims of falsity referenced in a previous Supreme Judicial Court decision. While there may have been a minimal basis for a hearing as suggested in a footnote of another case, absent a clear showing of falsity, a Franks hearing was not legally required, nor was the denial of such hearing an abuse of discretion. The order denying the defendant’s motions for a new trial and for a Franks hearing was affirmed. The defendant did not raise further arguments regarding the new trial motion, and there was no indication that an admission was linked to the affiant. Testimony indicated that police officers lacked authority to attend investigative grand jury sessions, which fell under the jurisdiction of the District Attorney.

The Commonwealth contends that the defendant has not proven that the grand jury information was unknown to the police before its presentation to the grand jury. It references portions of a disciplinary hearing transcript, which are absent from the record, to argue that Boston police officers had already received the same information from witnesses. The defendant's brief fails to detail how the authorship of an affidavit by O’Malley was concealed, while the Commonwealth suggests that concealment occurred through O’Malley's statement in an April 1992 affidavit referring to a prior document as 'my' affidavit. The judge noted that it is common practice for assistant district attorneys to prepare affidavits for police officers and concluded that the defendant waived the issue of O’Malley’s authorship by not raising it in his first motion for a new trial. Although the judge's reliance on his prosecutorial experience may have some merit in limited circumstances, it risks undermining the defendant's right to confront adverse evidence. O’Malley testified at the disciplinary hearing that he had never signed an affidavit prepared by another, except in this case. The record includes excerpts from the disciplinary hearing transcript, the relevant affidavit, and O’Malley’s affidavits from 1989 and 1992, along with a Boston Globe article reporting O’Malley’s testimony. The defendant had previously sought a stay from the Supreme Judicial Court, which was denied but allowed for a new motion for a new trial. The defendant’s request to examine O’Malley, made in his brief, is inadequate because it does not establish a prima facie case for postconviction relief, as required under Mass. R.Crim. P. 30(c)(4). The Commonwealth argues that the only new information the defendant might cite in a second motion relates to a witness's partial recantation following the execution of a search warrant, but neither the grand jury minutes nor details of the recantation are included in the record. The Commonwealth implies that this recantation pertains to another O’Malley affidavit regarding a search warrant unrelated to the current case.