COMMONWEALTH vs. JOSEPH L. SALVATI (and two companion cases [Note 1]).

LYNCH, J. On July 31, 1968, a jury found Joseph L. Salvati and Peter J. Limone guilty as accessories before the fact in the murder of Edward Deegan, and of conspiracy to murder Edward Deegan and Anthony J. Stathopoulos. The same jury found Louis Grieco guilty of murder in the first degree and of two counts of conspiracy to murder. A complete summary of the evidence is contained in Commonwealth v. French, 357 Mass. 356 (1970), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972), where this court affirmed those convictions. There was evidence from which the jury could have concluded that Limone agreed to pay for the killing of Deegan and Stathopoulos, Salvati participated in the planning of the murder, and Grieco was one of the shooters. Each of the defendants' subsequent motions for a new trial were denied. The defendants then filed petitions in the county court, pursuant to G. L. c. 278, Section 33E (1992 ed.), for leave to appeal the denial of their motions for a new trial. These petitions were allowed, "but only with respect to the alleged failure of the Commonwealth to disclose before trial the existence of [a police report] (and the alleged existence of an informant) and the significance, if any, of such failure," and consolidated for briefing and oral argument before the full court. Therefore, our opinion only addresses this limited issue.

In instances where, as here, a judge hearing a motion for new trial was not the trial judge, "we regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Moreover, when a new trial claim is constitutionally based, as in the instant cases, "this court will exercise its own judgment on the ultimate factual as well as legal conclusions."

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Commonwealth v. Tucceri, 412 Mass. 401, 409 (1992). We conclude that there was no error.

The defendants contend that, before trial, the Commonwealth suppressed a police report which contained statements made by an informant concerning events observed by the informant on the night of Deegan's murder. [Note 2] All three defendants argue that the denial of their motions for a new trial was erroneous because the Commonwealth "suppressed" this police report in violation of their due process rights under the Fourteenth Amendment to the United States Constitution, see Brady v. Maryland, 373 U.S. 83 (1963). [Note 3] Salvati also argues that the denial was erroneous because the Commonwealth failed to provide the defendants with the informant's identity and the contents of the informant's statement before trial as required by Roviaro v. United States, 353 U.S. 53 (1957).

1. Brady claims. In Brady, supra, the Supreme Court held that "suppression by [a] prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. [Note 4] The Court's holding, read literally, applies only to specific evidence that a defendant has asked the prosecutor to

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disclose. Case law, existing at the time of the defendants' trial, was inconclusive as to whether a defense request is essential to the operation of the Brady rule, and if so, what type of request is required. See Giles v. Maryland, 386 U.S. 66, 73 (1967) (remanding for new trial despite absence of pretrial request by defendant of suppressed evidence); Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 845-846 (4th Cir. 1964) (refusing to focus on astuteness of counsel, but rather on essential fairness of procedure). In this case, the defendants filed requests for exculpatory evidence, [Note 5] and so we focus our discussion on the concepts of suppression, favorability, and materiality. To constitute "suppression," the government must at one time have possessed the evidence in question or at least had access to the evidence. See Commonwealth v. Earl, 362 Mass. 11, 15-17 (1972); Barbee v. Warden, Md. Penitentiary, supra at 846. Here, although it is clear from the record that the police report did exist at the time of trial, it is unclear whether the prosecutor actually had the police report. [Note 6] See Commonwealth v. Earl, supra at 14-16 (evidence not unconstitutionally withheld under Brady). However, even assuming that the prosecutor did "suppress" the police report, suppression by itself does not mandate a new trial.

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As of 1968, the Supreme Court had explicitly declined to resolve "whether the prosecution's constitutional duty to disclose extend[ed] to all evidence admissible and useful to the defense, and the degree of prejudice which must be shown to make necessary a new trial." Giles v. Maryland, supra at 74. Therefore, at the time of the defendants' trial, the Supreme Court had yet to provide substantial guidance for applying the materiality concept required by Brady.

In 1971 this court stated that a prosecutor's duty to disclose under Brady "must be measured by the directness of the materiality of the item of evidence in question to the defence taken together with the sheer volume of all the evidence in the hands of the prosecution." Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 318 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914 (1972). Although this court has conceded that it was obviously improper to suppress "significant and material evidence favorable to a criminal defendant, where a defence request reasonably directs the prosecution's attention to it," it stated that "[m]uch, however, depends on the particular circumstances and the nature, importance, and relevance of the allegedly suppressed evidence." Commonwealth v. Cassesso, 360 Mass. 570, 578 n.5 (1971). Cassesso involved an appeal from the denial of a motion for a new trial of one of the other defendants whose conviction arose from the Deegan murder. There the court, in commenting on the duty of the Commonwealth to disclose another police report, noted that the trial transcript contained 7,555 pages. Id. at 577. In Commonwealth v. French, 357 Mass. 356, 399 A-2 (1970), the court concluded that the trial judge was not required to grant motions for inspection of exculpatory evidence in the absence of greater specification of the areas of the desired inquiry.

Measured against this background and the standards of the day, any failure of the prosecution to disclose the report does not require that we grant a new trial. The defendants suggested at trial that Joseph Baron, the Commonwealth's

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key witness, had implicated certain individuals, including the defendants, instead of the true perpetrators of the crimes. Therefore, the defendants argue that the informant's statements support this substitution defense because the informant did not name any of the defendants as being men who had left and returned to the Ebb Tide with Baron. The defendants contend that the information contained in the report is consistent with this theory, and therefore, favorable to the defendants. Even if this is so, the information in the police report is also consistent with the Commonwealth's case. For example, there was no evidence introduced that either Limone or Grieco were ever at the Ebb Tide on the night of the murder. Limone's primary criminal act was soliciting "the hit" on Deegan and Grieco was not at the Ebb Tide with Baron, but rather in an alley waiting for Deegan. Moreover, Baron testified that, when he left the Ebb Tide, Salvati was tending to an automobile in the Ebb Tide parking lot. Therefore, under either version of the events the informant would not have seen Salvati, Limone, or Grieco leave the Ebb Tide with Baron. Furthermore, as found by the motion judge, the fact that the informant saw Baron leave the Ebb Tide at the same time as six other individuals does not "conclusively establish a common destination or scheme" between those individuals given the possibility that Baron left with some individuals who did not participate in the crimes. This is especially so when it is taken into consideration that approximately 500 people were in the Ebb Tide that night. Moreover, the fact that the informant did not see Salvati return to the Ebb Tide with Baron is consistent with Baron's testimony that Salvati was hiding "the stuff" in a nearby field at that time. Therefore, the informant's statements are not inherently inconsistent with Baron's testimony. Additionally the information in the report is cumulative of evidence presented at trial. For example, the police report indicates that the informant alleged that seven men had left and returned to the Ebb Tide with Baron. During direct examination, Baron independently named two of these seven men as being with him at the Ebb Tide on the night of the murder

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and as being participants in the crime. However, during cross-examination, Baron was specifically questioned about four other men named by the informant in the police report. We conclude, therefore, that the information contained in the report was available to trial counsel and used by at least one defendant to cross-examine Baron in order to impeach his credibility. Thus the motion judge's denial of the defendants' motions based on alleged Brady violations was not erroneous because the information in the police report was merely cumulative evidence that did not materially aid the defendants on the issue of guilt or punishment.

2. Roviaro claims. In Roviaro v. United States, 353 U.S. 53 (1957), the Supreme Court stated: "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," the information must be disclosed to the defendant or the case must be dismissed. Id. at 60-61. The Court acknowledged, however, that the determination whether disclosure is required will depend on the particular circumstances of each case. Id. at 62. In Roviaro, the defendant had made specific, repeated requests for the disclosure of the identity of a confidential informant who "had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged." Id. at 55. Moreover, the informant was the sole participant in the crime, other than the accused, and therefore, the only nongovernment witness to the crime. Id. at 64. In these circumstances, the informant's possible testimony was highly relevant. Therefore, the Supreme Court held that it was reversible error not to disclose the confidential informant's identity, given the defendant's repeated requests for the information. Id. at 64-65. Cf. McCray v. Illinois, 386 U.S. 300, 309-311 (1967) (Roviaro illustrative of Court's unwillingness to impose absolute rule requiring disclosure of informant's identity).

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As previously stated, the informant's report did not materially aid any of the defendants on the issue of guilt or punishment. Additionally, there is nothing in the record to indicate that the informant participated in the crime. Instead, the informant merely observed isolated events that any other patron at the Ebb Tide could have observed. Given that the record is void of any indication that law enforcement officials had an agreement with or directed the informant to disclose his or her observations to law enforcement officials, we conclude that Salvati failed "to develop the criteria of Roviaro necessitating disclosure." Rugendorf v. United States, 376 U.S. 528, 535 (1964) (petitioner failed to show disclosure necessary for defense). Commonwealth v. Lugo, 406 Mass. 565, 572 (1990) (discussing Roviaro and subsequent cases; disclosure required when informant actively participates in crime). Furthermore, we agree with the motion judge's characterization of the informant as a "tipster or citizen witness" rather than a confidential informant, see Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989) (distinguishing between confidential informant and citizen tipster), and we conclude that the nondisclosure of the tipster's identity or the contents of the tipster's statements did not constitute reversible error.

3. Other issues. The defendants contend, in the alternative, that their motions for a new trial should not have been denied because the informant's statements constitute newly discovered evidence. We do not agree. "A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction. . . . The evidence said to be new not only must be material and credible . . . but also must carry a measure of strength in support of the defendant's position. . . . Thus, newly discovered evidence that is cumulative of evidence admitted at trial tends to carry less weight than new evidence that is different in kind. . . . Moreover, the judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v.

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Scanlon, 412 Mass. 664, 679-680 (1992), quoting Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986). To be newly discovered evidence, the evidence must have been unknown to the defendant and not reasonably discoverable at the time of trial. Id. at 306. From the cross-examination of Baron it can be inferred that defense counsel had access to the police report in question, prior to trial. [Note 7] Given that the materiality standard for a new trial based on suppressed evidence is more stringent than the standard for a new trial based on newly discovered evidence and that we have already stated that the statements in question did not meet the materiality standards as set forth in Brady v. Maryland, 373 U.S. 83 (1963), we conclude that there was no error.

For the aforementioned reasons, we affirm the denial of the defendants' motions for a new trial.

So ordered.