MICHAEL RILEY vs. COMMONWEALTH.

KAFKER, J. The plaintiff, Michael Riley, was convicted in 1986 of manslaughter and other charges as a joint venturer, but the Supreme Judicial Court reversed his convictions for violations of Bruton v. United States, 391 U.S. 123 (1968) (Bruton). See Commonwealth v. Cunningham, 405 Mass. 646, 660 (1989) (reversing convictions of Leo Cunningham and Riley because of Bruton errors). At a retrial, Riley was acquitted of all charges. Following passage of the Erroneous Convictions Law, G. L.

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c. 258D, Riley brought this action seeking compensation for his wrongful conviction and imprisonment. The question before us is whether Riley falls within the class of persons eligible to seek compensation under the statute. More particularly, we must decide whether his conviction was reversed on "grounds resting upon facts and circumstances probative of the proposition that the claimant did not commit the crime." Guzman v. Commonwealth, 458 Mass. 354, 362 (2010) (Guzman), quoting from Guzman v. Commonwealth, 74 Mass. App. Ct. 466, 477 (2009). We conclude that the reversal based on the Bruton grounds here -- that is, the erroneous admission of additional hearsay evidence of guilt provided by his codefendants -- did not render him eligible for compensation, and we therefore reverse the order of the Superior Court judge denying the Commonwealth's motion for judgment on the pleadings.

Background. The facts underlying Riley's criminal case are as follows. Riley's friend Ramon Libran was involved in a fight with several individuals in Chelsea. Commonwealth v. Cunningham, supra at 647. The following evening, Libran, Riley, Riley's brother, and two others drove around Chelsea looking for the men involved in the fight. Ibid. They eventually found three of the men. Id. at 648. Libran chased down one man and stabbed him repeatedly, killing him. Ibid. Riley's brother punched another of the men and cut him with a knife. Ibid. Riley was present but not active in the violence. See id. at 649. He was prosecuted only as a joint venturer. Ibid. "The only contested issue [was] whether [he] had the requisite intent . . . ." Id. at 650.

Much of Riley's statement to the police, which was admitted at trial, was exculpatory as to intent. See id. at 651. He stated that he joined the group shortly before they found the men they were looking for that evening. See id. at 652. He also indicated that he had told Libran before the stabbing, "[T]his is crazy, I want to go home." Id. at 651. Additionally, he stated that he tried to break up the fight involving his brother, and that he was surprised to learn that Libran had stabbed someone. [Note 1] Id. at 651-652. A codefendant's girlfriend partially supported Riley's

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version of events, testifying that he told Libran, "I don't believe you, you shouldn't have stabbed him." Id. at 653. However, she also partially contradicted him, stating that "prior to the incidents, all four defendants were talking about the fight the night before and about how they were looking for those who had been involved . . . [and how they] intended to beat up those people if they located them." Id. at 652.

In addition to this evidence, the statements of two nontestifying codefendants were admitted at trial under an interpretation of Bruton that was later repudiated by the United States Supreme Court. See id. at 649. These statements added materially to the evidence of Riley's intent. In particular, one codefendant stated that Riley had been driving around with the group for four hours looking for the men involved in the fight, and that "people were going to get out of [the] car and have a fist fight with the people that jumped [Libran]." Id. at 651-652. The Supreme Judicial Court held that these statements were not wholly cumulative of other evidence and "could have affected [the] verdicts against" Riley. Id. at 653.

After the plaintiff filed his complaint for compensation in this action, the Commonwealth moved for judgment on the pleadings under Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). It argued that the grounds for the reversal of Riley's conviction did not tend to establish his innocence, and therefore he was ineligible to bring the action. The motion judge denied the motion, ruling that Riley was eligible to sue, and the Commonwealth appealed. [Note 2]

Erroneous Convictions Law. Under G. L. c. 258D, an individual who has been wrongfully convicted and imprisoned may sue for relief including damages of up to $500,000. See Guzman, 458 Mass. at 355-356 & n.4; G. L. c. 258D, § 5. A plaintiff is eligible to bring such a claim if, as relevant here, a State court reversed his felony conviction "on grounds which tend to establish the innocence of the [plaintiff]," and he is later

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acquitted at a retrial. G. L. c. 258D, § 1(B)(ii), inserted by St. 2004, c. 244, § 1.

In explaining the meaning of "grounds which tend to establish the innocence of the [plaintiff]," the Supreme Judicial Court has relied in part on the legislative history of the provision. The relevant provision evolved from an earlier formulation rejected and returned by the Governor, which had provided for eligibility for compensation based on reversals on "grounds consistent with . . . innocence." Guzman, supra at 358. As the Supreme Judicial Court explained: "The Governor's amendment, eventually adopted into law, was plainly intended to limit the scope of the bill's original language." Ibid. The court further explained that "it is possible to envision many potential claimants whose convictions are reversed because of procedural or evidentiary errors or structural deficiencies at their trials that could well be 'consistent' with innocence without any tendency to establish it" (emphasis in original). Ibid. The court then provided a list of examples of such cases, including admission of ballistics certificates and closure of the courtroom in violation of the Sixth Amendment to the United States Constitution; admission of expert deoxyribonucleic acid testimony without the necessary statistical explanations; ineffective assistance of counsel for failure to request a provocation instruction; incorrect jury instructions on the third prong of malice; prosecutorial misconduct by giving unsworn testimony and vouching for a key prosecution witness; erroneous disallowance of a defendant's peremptory challenge; and, most importantly for our purposes here, admission of a nontestifying codefendant's confession "in contravention of Bruton v. United States." Id. at 358 n.6.

With these considerations in mind, the Supreme Judicial Court then defined the class of plaintiffs eligible for compensation as those whose convictions were reversed on "grounds resting upon facts and circumstances probative of the proposition that the claimant did not commit the crime." Id. at 362, quoting from Guzman v. Commonwealth, 74 Mass. App. Ct. at 477. [Note 3]

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Previous applications of the "grounds which tend to establish innocence" test. The Supreme Judicial Court has decided two instructive cases applying G. L. c. 258D. In Guzman, the plaintiff had been convicted of multiple drug offenses. Guzman, supra at 355. His defense at trial was mistaken identity, namely that he had been mistaken for his cousin. See id. at 362-363. Two police officers testified that they had seen Guzman selling cocaine to two buyers. Id. at 363. Guzman's trial counsel had previously represented one of these buyers. Ibid. The buyers would have testified that Guzman was not the one who had sold them the cocaine, thus bolstering his defense. Id. at 363 & n.15. However, in order to avoid the appearance of a conflict of interest, Guzman's counsel not only declined to call the buyers but also prevented the Commonwealth from calling one of them to testify. Id. at 363 & n.16. A judge granted Guzman a new trial based on ineffective assistance of counsel due to the exclusion of key exculpatory evidence. Id. at 363-364 & n.17.

The Supreme Judicial Court held that Guzman was eligible to bring a G. L. c. 258D claim because "the erroneously omitted evidence was probative of the conclusion that the culprit was someone else." Id. at 365. It went on: "Essential to our analysis here is that counsel's ineffective assistance took the form of depriving Guzman of the introduction of evidence tending to establish his actual innocence." Id. at 365 n.20.

The other reported case applying the statute is Drumgold v. Commonwealth, 458 Mass. 367 (2010) (Drumgold), decided the same day as Guzman. Drumgold was convicted of murder after masked gunmen shot and killed a twelve year old girl in the Roxbury section of Boston. Id. at 370. His defense at trial was misidentification, and he presented multiple alibi witnesses as well as his own testimony that he was elsewhere at the time of the shooting. Id. at 371. After Drumgold spent fourteen years in prison, a judge granted the Commonwealth's motion for a new trial based on newly discovered evidence and previously withheld exculpatory evidence related to two key witnesses. See id. at 371, 375-376. Specifically, Drumgold presented evidence

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that, when a critical witness identified him and when she testified at trial, she was suffering from terminal brain cancer, with symptoms including blurred vision, amnesia, and disorientation. Id. at 373. This condition obviously undercut the reliability of her identification. Separately, another significant witness recanted his trial testimony and testified that he had been given material undisclosed inducements by the police. Id. at 373-374. The Commonwealth conceded that the failure to disclose these inducements "deprived [Drumgold] of his constitutional right to cross-examine [the witness] effectively to show potential bias." Id. at 375 (first alteration in original).

The Drumgold court rejected the Commonwealth's argument that Drumgold was ineligible for compensation because the motion judge's ruling was based on the unfairness of the trial rather than a determination that Drumgold might be innocent. Id. at 377-378. Specifically, the court held that the new evidence and undisclosed evidence "were probative of the central issue at trial: the reliability of the identification of Drumgold as one of the shooters and, correspondingly, the veracity of his alibi defense." Id. at 378. Because of the absence of this "critical evidence," "the fact finder was forestalled from making a fully informed decision as to the defendant's guilt or innocence." Ibid.

Application of "grounds which tend to establish innocence" test in the instant case. At the outset, we reject the Commonwealth's argument that Guzman established a categorical rule barring any plaintiff whose conviction was reversed for a Bruton error from seeking compensation. It is our understanding that the footnote was meant to provide guidance on the types of reversals "that could well be 'consistent' with innocence without any tendency to establish it," but was not setting forth a definitive rule barring recovery for any of the types of errors listed in the footnote. [Note 4] Guzman, supra at 358, quoting from Guzman v. Commonwealth, 74 Mass. App. Ct. at 477. The test ultimately adopted by the Supreme Judicial Court requires us to look not only at the legal rationale for judicial relief but also at the "facts and circumstances" on which the relief rests. See Guzman, supra at 362, quoting from Guzman v. Commonwealth, 74 Mass. App. Ct. at 477.

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Nonetheless, in this case the facts and circumstances underlying reversal do not tend to show Riley's innocence. Rather, as in Commonwealth v. Bacigalupo, 455 Mass. 485, 495-496 (2009) (Bacigalupo), the facts and circumstances justifying the reversal are the erroneous admission of additional evidence of guilt, not the exclusion of evidence probative of innocence. See Guzman, supra at 358 n.6.

In Bacigalupo, the identification of the defendant as the murder culprit depended on the testimony of "a convicted felon testifying pursuant to a proffer agreement with the Commonwealth [who] did not name his assailants to the government until, four years after the shootings, he was in jeopardy of being charged with serious offenses." Bacigalupo, supra at 496. This shaky foundation was shored up through the admission of a codefendant's confession, in violation of Bruton. See id. at 492, 494-495. Although the evidence apart from the inadmissible confession was sufficient to convict Bacigalupo, his convictions were reversed because the error might have impacted the jury's deliberations. See id. at 491, 496.

Similarly, the Commonwealth produced sufficient but not overwhelming evidence of Riley's intent, and the Bruton errors required reversal because they "could have affected [the] verdicts against him." Commonwealth v. Cunningham, 405 Mass. at 653. In neither Bacigalupo's case nor Riley's was evidence probative of the defendant's innocence kept from the fact finder. Compare Guzman, supra at 365.

Unlike in Drumgold, the fact finder here was not "forestalled from making a fully informed decision." Drumgold, supra at 378. On the contrary, Riley's first jury had too much information, including the confessions that they should not have heard. The Legislature clearly did not intend to provide compensation merely because evidence of a claimant's guilt should have been suppressed or excluded. See G. L. c. 258D, § 1(F) (providing that, at trial on the merits of the compensation claim, "[n]o evidence proffered by any party shall be excluded on grounds that it was seized or obtained in violation of the Fourth, Fifth or Sixth [A]mendments to the Constitution of the United States, or in violation of Articles 12 or 14 of Part the First of the Constitution of Massachusetts").

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The absence of the codefendants' statements evidently "changed the . . . credibility calculation" at Riley's second trial, where he was acquitted. Drumgold, supra at 378. But if this were enough to establish eligibility, any evidentiary error weighty enough to warrant reversal (including the Bruton error in Bacigalupo) would suffice. In order to pass the initial bar of G. L. c. 258D, § 1(B), "the relief granted must be on grounds tending to do more than merely assist the defendant's chances of acquittal." Guzman, supra at 360. Nothing in the reversal of Riley's convictions on Bruton grounds, or the facts and circumstances underlying that relief, tends to show that Riley was innocent. The court's ruling only made it more difficult for the Commonwealth to prove that he did commit the crimes by excluding additional inadmissible evidence of guilt. Therefore, Riley is not eligible to pursue a claim under G. L. c. 258D.

Conclusion. The order denying the Commonwealth's motion for judgment on the pleadings is reversed. A new order shall enter dismissing the plaintiff's complaint.

So ordered.