Commonwealth v. Mcmillan

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18-P-1702 Appeals Court

COMMONWEALTH vs. ALI MCMILLAN.

No. 18-P-1702.

Essex. November 12, 2019. - September 16, 2020.

Present: Rubin, Wolohojian, & Henry, JJ.

Controlled Substances. Practice, Criminal, Conduct of
government agents, Discovery, Disclosure of evidence,
Disclosure of identity of surveillance location,
Confrontation of witnesses, New trial. Evidence,
Disclosure of evidence, Exculpatory, Cross-examination.
Witness, Cross-examination. Constitutional Law, Conduct of
government agents, Confrontation of witnesses. Due Process
of Law, Disclosure of evidence.

Complaint received and sworn to in the Lynn Division of the
District Court Department on September 11, 2014.

The case was tried before James D. Barretto, J., and a
motion for a new trial, filed on July 30, 2018, was considered
by him.

Amy Codagnone for the defendant.
Kayla M. Johnson, Assistant District Attorney, for the
Commonwealth.

RUBIN, J. The defendant was convicted of distribution of a

class A substance in violation of G. L. c. 94C, § 32 (a). The
2

defendant appeals from his conviction and the denial of his

motion for a new trial, in which the defendant raised numerous

claims based on the Commonwealth's delayed disclosures and

suppression of exculpatory, material pieces of evidence.

Because those discovery violations, and the procedure

implemented at trial to address some of them, violated the

defendant's due process rights, we reverse the order denying the

defendant's motion for a new trial and the defendant's

conviction.

Background. On June 21, 2011, as part of an operation by

the North Shore Gang Task Force (NSGT or task force),1 special

agents of the Federal Bureau of Investigation (FBI) and officers

of several local law enforcement agencies planned a controlled

purchase of narcotics. The purchase was to take place in the

area of Vine Street in Lynn, utilizing a confidential informant

(CI). The task force had utilized this CI in other controlled

purchase operations in the North Shore area around this time.

On June 21, 2011, officers drove with the CI to Lynn Technical

High School. An officer utilized standard FBI protocol,

routinely used by this task force, to search the CI for any

1 The NSGT is a federally funded task force staffed by FBI
special agents, officers from the Essex County Sheriff's Office,
State police troopers, and officers of the Lynn Police
Department, among others.
3

outside drugs on his person. Officers then gave the CI $650,

and released the CI in the Vine Street area.2

Officers on the task force took up surveillance positions

along Vine Street to monitor the CI and observe the controlled

purchase. Special Agent McEachern, along with another officer,

remained near Lynn Technical High School. Sergeant Avery was

stationed near the intersection of Vine Street and Summer

Street. Detective Withrow and another officer were stationed in

a vehicle on Huss Court, another street off Vine Street. From

over one hundred feet away, Detective Withrow saw the CI walk to

the corner of Vine Street and Warren Street, greet the

defendant, and shake his hand; he then saw a hand-to-hand

exchange in which the CI gave the defendant the controlled

purchase money. The CI then returned to the officers at Lynn

Technical High School. The CI turned over a clear plastic bag

to Special Agent McEachern containing what was later tested and

confirmed to be heroin.

Based on this evidence, the defendant was charged with

distribution of a class A substance in violation of G. L.

2 While officers had affixed an audio-visual recording
device to the CI to record the controlled purchase, this device
could be turned off by the CI at any time. Because the device
stopped recording while the CI walked down the street, the
device failed to record any evidence of an exchange with the
defendant.
4

c. 94C, § 32 (a).3 In pretrial discovery, the defendant

specifically requested the locations from which each police

officer's surveillance of the CI and the controlled purchase was

conducted. The Commonwealth provided a single surveillance

location, 27-29 Huss Court. In response to a request from the

defendant, the Commonwealth filed a witness list naming only six

witnesses, including Special Agent McEachern and Detective

Withrow, but not Sergeant Avery.

The Commonwealth also provided information, although

incomplete, about misconduct by the CI who conducted the

controlled purchase in this case. An undated affidavit from

Detective Withrow stated:

"I believe that [the CI] has lied to the FBI about material
matters during the course of the investigation. For
example, [the CI] told the FBI that certain controlled buys
of drugs cost more than they actually cost and kept the
difference in official government currency provided
. . . for those buys (it appears that this typically
involved $50-$200). [The CI] has admitted that it stole
that money. [The CI] has also admitted to the FBI that it
lied to the FBI about a phone call that [the CI] had with a
target of the investigation (i.e., [the CI] described the
contents of a particular phone call as involving drug
conversation when, in fact, the recording of the call
indicated that [the CI] did not make contact with the
target). . . . [The CI] also has an open case for theft of
government property and false statements in connection with
[the CI's] theft of money provided to it for controlled
buys, as described above."

3 The defendant was also charged with four counts of
distribution of a class B substance as a subsequent offense.
Two of these counts were dismissed by the court at the request
of the Commonwealth and on the remaining two counts, the
Commonwealth filed a nolle prosequi.
5

A 2013 FBI report turned over by the Commonwealth gave some

details of unauthorized illegal activity by the CI. The 2013

FBI report stated that the CI admitted that he "skimmed money

during three separate purchases of narcotics totaling

approximately $150. The [CI] hid the money in his shoes."

The Commonwealth also had in its possession prior to trial,

but failed to disclose to the defendant, additional information

concerning the CI's misconduct, information it had been ordered

in another case to provide, including the dates of the CI's

theft of controlled purchase money, the names of other cases in

which the CI had been an informant and had committed misconduct,

the fact that the CI had pleaded guilty to five counts of theft

of government property and three counts of making false

statements, and the fact that the CI had stolen $685 from the

FBI on five occasions, rather than $150 on three occasions as he

had confessed and as had previously been indicated by the 2013

FBI report. The CI's misconduct occurred during the joint State

and Federal investigation called "Operation Whiplash" (joint

investigation), of which the investigation and prosecution of

the defendant were a part, by the same task force that undertook

the investigation in the instant case; the same monitoring

protocol utilized in this case was followed in each controlled
6

purchase during which the CI stole purchase money and hid it in

his shoe, yet avoided detection.

The Commonwealth was unable to produce the CI at the time

of trial in this case as the CI was, in the prosecutor's words,

"in the wind." Over the defendant's objection, the judge

initially excluded all evidence of the unavailable CI's criminal

activities, including stealing money from law enforcement

agencies during controlled purchases. The Commonwealth argued,

and the judge concluded, that if there was constant police

observation of the CI in this case, the evidence as to the CI's

credibility was irrelevant. The judge determined that the CI's

history of lying and committing misconduct would add nothing to

the jury's understanding of the case, where the CI was not a

witness and testifying witnesses could account for his actions

during each moment of the controlled purchase.

The judge, therefore, did not permit cross-examination of

any Commonwealth witnesses about the reliability of the CI, the

fact that the CI was paid by the NSGT, or other occasions in

which NSGT officers failed to observe the CI -- whether through

an inability to see him or inattentiveness -- when the CI was

hiding money in his shoe during other controlled purchases

during the joint investigation at issue in this case. This

ruling was, however, predicated on the Commonwealth's ability to
7

prove that officers had the CI under constant police

surveillance during the controlled purchase in this case.

On the second day of trial, it became apparent that the

witnesses on the Commonwealth's witness list could not provide

testimony demonstrating constant surveillance of the CI during

the controlled purchase. The Commonwealth reported that it

would need an additional witness, Sergeant Avery, to establish

the absence of a gap in police surveillance. Over the

defendant's objection, the judge permitted the Commonwealth to

call Sergeant Avery as a witness, despite the fact that Sergeant

Avery's name was not on the witness list provided to the

defendant before trial.

Even with Sergeant Avery's testimony however, the judge

found that the Commonwealth had failed to establish constant

police surveillance of the CI, thereby making the CI's

credibility and history of misconduct relevant, permissible

grounds for the defendant's inquiry. Consequently, but only

after the close of the Commonwealth's case, the judge allowed

the defendant, as part of his own case-in-chief, to recall a

single witness, Detective Withrow, to conduct a "circumspect"

examination about the CI's misconduct.

It was also revealed for the first time during the course

of trial that the Commonwealth had disclosed to the defendant

the incorrect location for the point from which Detective
8

Withrow conducted his surveillance. He was not at 27-29 Huss

Court, but in a parking lot across the street closest to 32 Huss

Court. Sergeant Avery also testified as to the location from

which he conducted surveillance, a location that the

Commonwealth had not provided to the defendant prior to trial,

despite the discovery request described above. The defendant's

objection to Sergeant Avery's surprise testimony, on the grounds

that he had had no opportunity to investigate Sergeant Avery's

location, was overruled.

The jury found the defendant guilty as charged. At trial,

Detective Withrow provided the only evidence linking the

defendant to this controlled purchase; he alone testified that

the CI had engaged in a hand-to-hand exchange with the

defendant. The Commonwealth presented no other evidence that

the defendant had distributed narcotics on June 21, 2011.

Following trial, a private investigator hired by defense

counsel investigated and took photographs from the actual

surveillance locations disclosed for the first time during

trial. These photographs demonstrated that, contrary to

assertions made by the officers at trial, their vantage points

would have provided significantly obstructed views of the CI as

he went to and from the alleged controlled purchase. The

defendant presented this undisputed evidence to the trial judge

in his motion for a new trial, in which he raised a number of
9

discovery violations and delayed disclosures by the

Commonwealth.

The motion for a new trial identified numerous discovery

violations: 1) in response to a specific request to disclose

surveillance locations for the controlled purchase, the

Commonwealth provided an inaccurate location from which

Detective Withrow supposedly saw the controlled purchase occur;

2) defense counsel was not given an opportunity to investigate

the location from which Sergeant Avery undertook his

surveillance; and 3) the Commonwealth withheld evidence of the

CI's full history of misconduct and theft from the NSGT.

The judge denied the new trial motion in a two-page order

without an evidentiary hearing. The defendant filed a notice of

appeal, and his direct appeal and his appeal from the denial of

his motion for a new trial are consolidated here.

Discussion. 1. Denial of the defendant's new trial

motion. We review the judge's denial of the defendant's motion

for a new trial pursuant to Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001), for significant errors of

law or other abuses of discretion. Commonwealth v. Grace, 397

Mass. 303, 307 (1986). Here, the judge made no specific

findings as to the individual merits of each of the defendant's

claims and gave no substantive written explanation for his

denial of the motion. As the defendant has demonstrated that he
10

was prejudiced by discovery violations, we conclude that the

judge abused his discretion in denying the motion for a new

trial.

We begin with the Commonwealth's obligations under Brady v.

Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427

U.S. 97, 106 (1976), to provide the defendant with an accurate

location from which officers observed the controlled purchase.

In response to a specific discovery request for the

locations from which surveillance was conducted, and after being

ordered by the court to provide such information, the

Commonwealth provided to the defendant a single, incorrect

surveillance location before trial. In accordance with due

process, "the government is constitutionally obligated to

disclose material, exculpatory evidence for which a defendant

has made a specific request." Commonwealth v. Sullivan, 478

Mass. 369, 380 (2017). See Commonwealth v. Ellison, 376 Mass.

1, 21 (1978). We consider evidence to be exculpatory when it

"tends to negate the guilt of the accused . . . or, stated

affirmatively, support[s] the innocence of the defendant"

(quotations omitted). Commonwealth v. Pisa, 372 Mass. 590, 595,

cert. denied, 434 U.S. 869 (1977). Evidence that must be turned

over is "that 'which provides some significant aid to the

defendant's case[,] . . . calls into question a material,

although not indispensable, element of the prosecution's version
11

of the events, or challenges the credibility of a key

prosecution witness.' [Ellison, supra at 22]." Commonwealth v.

Baldwin, 385 Mass. 165, 175 (1982). Impeachment evidence is

"clearly exculpatory." Commonwealth v. Hill, 432 Mass. 704,

715-716 (2000), quoting Commonwealth v. Collins, 386 Mass. 1, 8

(1982).

In this case, the officers' vantage points determined

whether they could have had continuous surveillance during the

controlled purchase by the CI who, on previous occasions during

the same joint investigation, had, despite claimed surveillance

by officers of the task force, managed to engage in unlawful and

unobserved conduct during other controlled purchases. The

undisputed evidence of photographs taken from the officers'

actual vantage points presented on the motion for a new trial

demonstrated that the information would have led to valuable

evidence that could have been used on cross-examination. The

Commonwealth here plainly failed to disclose in pretrial

discovery evidence that was material and exculpatory.

As in Baldwin, however, because the evidence was revealed

at trial, this is a case of delayed disclosure rather than

complete suppression. In such cases, "it is the consequences of

the delay that matter, not the likely impact of the nondisclosed

evidence, and we ask whether the prosecution's disclosure was

sufficiently timely to allow the defendant 'to make effective
12

use of the evidence in preparing and presenting his case.'"

Baldwin, 385 Mass. at 175, quoting Commonwealth v. Wilson, 381

Mass. 90, 114 (1980). See United States v. Drougas, 748 F.2d 8,

23 (1st Cir. 1984) ("Where . . . the defense is confronted not

with complete suppression, but with delayed disclosure, reversal

will be granted only if defendants were denied the opportunity

to use the disclosed material effectively"). It is only where

the delay in disclosure of Brady material deprives the defendant

of the opportunity to make effective use of it that the

Constitution is violated. See Commonwealth v. Adrey, 376 Mass.

747, 755 (1978), citing United States v. Pollack, 534 F.2d 964,

973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976).

The late disclosure here was not sufficiently timely to

allow the defendant to make effective use of the material in

preparing his defense.

Before trial, defense counsel investigated the surveillance

location provided by the Commonwealth and even prepared

photographs from the vantage point identified in discovery to

use in cross-examination, only to find in the midst of the

second day of trial that the location he investigated was not

relevant to Detective Withrow's actual vantage point. Because

the disclosure occurred literally in the middle of trial,

defense counsel could not have demonstrated at trial that the

delay in disclosure prevented him from making effective use of
13

the evidence. But uncontested photographs taken from Detective

Withrow's actual vantage point by an investigator after trial

and presented to the judge at the first opportunity, in the

defendant's motion for a new trial, showed that this vantage

point had an obstructed view of the corner where the exchange

was supposed to have taken place, in addition to being over one

hundred feet away. Evidence that Detective Withrow's view of

the defendant was obstructed would have been critical to the

defense. Detective Withrow, alone among the Commonwealth's

witnesses, claimed to have witnessed the defendant conduct a

hand-to-hand exchange with the CI, and the evidence of this

exchange was the sole basis for the defendant's conviction. The

late disclosure thus obviously deprived the defendant of the

opportunity effectively to prepare his defense.4

Likewise, midtrial, the defendant was given mere hours'

notice of the Commonwealth's intent to offer an entirely new

police witness, Sergeant Avery, whose location in the

surveillance operation had not been disclosed before trial,

despite a specific request for each officer's surveillance

location. The photographs included in the defendant's new trial

4 The Commonwealth does not contest the content of the
photographs, arguing only that as a matter of law, the defendant
was able adequately to cross-examine the witnesses without them,
an argument with which we disagree. As a consequence, a remand
for an evidentiary hearing is not required.
14

motion also demonstrated that Sergeant Avery's view of the CI as

he walked down Vine Street would have been limited. Had the

defendant known Sergeant Avery would testify and had the

defendant been able to use the photographs to cross-examine

Sergeant Avery on his inability constantly to view the CI due to

his surveillance location, the defendant could have presented a

defense seriously undermining the officers' testimony that they

maintained constant visual surveillance of the CI at all times

and that the CI actually purchased heroin from the defendant.

See Commonwealth v. Hernandez, 421 Mass. 272, 275 (1995)

("disclosure of the surveillance location would have been

relevant and helpful to the defense where there was every

indication that the testimony of the observing police officers

was crucial to the Commonwealth's case"). Because of the

delayed disclosure, the defendant could not make effective use

in his defense of this information.

Defense counsel's pretrial work to establish the weakness

of the Commonwealth's claim of constant observation of the CI

was impressively diligent, yet it was rendered useless by the

revelation at trial of the information that should have been

provided in discovery. Likewise, posttrial counsel's work in

establishing the inadequacy of the officers' vantage points was

also diligent –- indeed, exemplary. The defendant has met his

burden of demonstrating that the delayed disclosure of Detective
15

Withrow's and Sergeant Avery's surveillance locations were not

"sufficiently timely to allow the defendant 'to make effective

use of the evidence in preparing and presenting his case.'"

Baldwin, 385 Mass. at 175, quoting Adrey, 376 Mass. at 755.

That the defendant ultimately managed some cross-examination of

Detective Withrow and Sergeant Avery as to their vantage points

does not erase the prejudice to the defendant. "In order

properly to cross-examine the police officers on their

observations from the surveillance location, the defendant would

need to know the distance from the observation post to the site

of the alleged crime, as well as the existence of any

obstructions or other impediments to a clear view." Hernandez,

421 Mass. at 275. Here, the defendant learned this information

too late to make full use of it.

Both individually and cumulatively, these failures of

disclosure by the Commonwealth prejudiced the defendant under

the applicable standard. He therefore did not receive a fair

trial and the denial of his motion for a new one was an abuse of

discretion.5

5 The defendant also argues that the Commonwealth's failure
to provide all of the information about the CI's misconduct
requires a new trial because it prevented the defendant from
preparing what would have been valuable cross-examination of the
police witnesses about the quality of the surveillance provided
by the task force. The jury remained unaware of the full extent
of the CI's misconduct, including his convictions for lying to
16

2. Restriction of the defendant's cross-examination

rights. The judge's exclusion of all evidence of the CI's

misconduct during the Commonwealth's case-in-chief and the

restrictions he placed on the defendant's cross-examination of

the Commonwealth's witnesses were also in error. Although the

defendant was eventually permitted to conduct a limited

examination of Detective Withrow during the defendant's own

case-in-chief, he was restricted to asking about why the CI was

terminated, whether the CI was compensated, and whether the CI

was on probation; he could not inquire about the CI's

recruitment or prior work with the task force.

The defendant's right of confrontation under the Sixth

Amendment to the United States Constitution and his rights under

art. 12 of the Massachusetts Declaration of Rights entitled him

to "[a] fair and full cross-examination to develop facts in

issue or relevant to the issue[; it] is a matter of absolute

right and is not a mere privilege to be exercised at the sound

discretion of the presiding judge, and the denial of the right

is prejudicial error." Commonwealth v. Johnson, 365 Mass. 534,

543 (1974), quoting Gossman v. Rosenberg, 237 Mass. 122, 124

and stealing from the FBI, and the defendant argues that this
was particularly significant where his conviction was based
entirely on evidence of a single controlled purchase. In light
of our conclusion with respect to the surveillance locations and
the surprise witness, we need not reach the issue.
17

(1921). The defendant should have been allowed a thorough

cross-examination of each prosecution witness, for which

recalling a single one of the witnesses in his own case-in-chief

was not an adequate substitute.6

Conclusion. For these reasons, the judgment is reversed

and the verdict is set aside, and the order denying the

defendant's motion for a new trial is reversed.

So ordered.

6 Because we conclude that the defendant is entitled to a
new trial on these grounds, we need not address his other claims
raised on appeal regarding the admission of hearsay evidence at
trial, the inability to reconstruct the inaudible portions of
the trial transcript, the prosecutor's statements in opening
argument, and the denial of the defendant's motion for
postconviction discovery that may have supported his argument
that the Commonwealth withheld exculpatory evidence.