Gatekeeper Petition 2013

SUPREME JUDICIAL COURT
For the
COMMONWEALTH OF MASSACHUSETTS

No. ____
Bristol County
Nos. 96-106
__________________________________

COMMONWEALTH OF MASSACHUSETTS

vs.

BRIAN PEIXOTO
________________________________

PETITION PURSUANT TO G.L.C. 278 § 33E FOR LEAVE
TO APPEAL A DECISION OF THE SUPERIOR COURT DENYING A
MOTION FOR NEW TRIAL AND RELIEF FROM UNLAWFUL IMPRISONMENT

Now comes the petitioner, Brian Peixoto (“Petitioner” or “Peixoto”), and petitions this Court pursuant to M.G.L.c. 278 § 33E, for leave to appeal a decision of the Bristol Superior Court (Hely, J.), dated January 2, 2013 (“the Decision”), denying Peixoto’s motion for a new trial and for relief from unlawful imprisonment (“the New Trial Motion”), with respect to Peixoto’s conviction for first-degree murder. A copy of the Decision is annexed hereto as Ex. “A”.
As grounds therefore, Peixoto states as follows:

1. Peixoto’s New Trial Motion presents “new and substantial questions,” including the violation of Peixoto’s constitutional right to a public trial, under the First and Sixth Amendments and Article 12, during jury selection at Peixoto’s trial in the Bristol Superior Court, that ought to be considered by the full Court. M.G.L.c. 278 § 33E. See Commonwealth v. Cohen, 455 Mass. 600, 613 (2010); Owens v. United States, 483 F.3d 48, 61 (1st Cir. 2007).

2. As fully set forth herein, Peixoto carried his prima facie burden of demonstrating the closure of the courtroom during jury selection at his trial, as implicitly found by the trial judge, who assumed for purposes of his decision, that “a court officer excluded some of the defendant’s family members from the courtroom during the impanelment” (see Decision, p. 1, Ex. “A”). Nevertheless, the trial judge denied Peixoto’s motion without even holding a hearing, as required by this Court’s practice in public trial claims, see, e.g., Commonwealth v. Greineder, SJC No: 08866, Order dated October 23, 2009 (entering interim order remanding case to the Superior Court for findings on the courtroom closure issue), on the ground that Peixoto “waived” the public trial issue because neither he nor his defense counsel objected to such closure at the trial, citing this Court’s decision in Commonwealth v. Dyer, 460 Mass. 728, 736 (2011).

3. In so ruling, the trial court ignored Peixoto’s showing that he did not knowingly waive his right to a public trial, submitting an unrebutted affidavit that he was never aware of his right to a public trial and/or that court officers were excluding his family, until after his trial, direct appeal, and motions for new trial. Commonwealth v. Cohen, 455 Mass. at 613.

4. Further, the trial judge’s ruling omits any discussion of Peixoto’s alternative claim that he was denied the effective assistance of trial counsel, under the Sixth Amendment and Article 12, who failed to object to the complete closure of the courtroom during jury selection at Peixoto’s trial. A counsel’s failure to object to the closure of the courtroom to the public during the jury selection process, due to oversight and for no strategic reason, deprives a defendant of the effective assistance of counsel and his right to a public trial, thereby prejudicing him and requiring a reversal of the conviction. The trial judge did not even rule on Peixoto’s alternative claim of ineffective assistance of counsel in connection with the public trial right. Thus, consideration of the public trial issue by a full panel of this Court is fully warranted.

5. Additionally, a “new” and “substantial” issue is raised in connection with Peixoto’s claims of ineffective assistance of counsel because his trial counsel failed to adequately and fully investigate the cause of death of Christopher Affonso Jr. and whether it was attributable to a fall down the stairs ten (10) days before the child’s death while in the care of his mother, Ami Sneed, the Commonwealth’s principal witness.

6. Peixoto submitted affidavits from two world-renowned forensic pathologists, Dr. Michael Laposata, the Pathologist-in-Chief at Vanderbilt University and formerly of Harvard University, and Dr. Waney Squier, a neuropathologist of Oxford University in London, that the young child’s injuries were consistent with his falling down a staircase, and that this fall was associated with a fracture of his clavicle and multiple fractures to his skull and bleeding inside the head. Because he survived the fall, the child lived for 10 days experiencing serious neurological problems (including the child’s being “wobbly”, falling and stumbling on numerous occasions) that are indicative of progressive subdural hematomas occurring after the fall that subsequently then caused the death of the child. Significantly, in Laposata’ and Squier’s respective opinions, the Commonwealth experts’ conclusions that these fractures and the subdural hematoma were not survivable for any appreciable interval of time, and could ONLY be caused by one or a series of blows, was simply incorrect.

7. Peixoto has thus clearly shown that he was seriously prejudiced by counsel’s omissions and deficiencies, not only depriving him of a substantial ground of defense in the form of defense expert testimony, but valuable information with which to effectively cross-examine the Commonwealth’s expert(s). Given counsel’s failure to fully investigate, counsel’s representation was deficient and not attributable to a reasonable tactical choice. See, e.g., Commonwealth v. Haggerty, 400 Mass. 437 (1987)(counsel unreasonably abandoned insanity defense). Clearly, a substantial issue was raised and thus the trial judge’s denial of the Motion, without even granting an evidentiary hearing, was error.

8. Accordingly, “new and substantial” issues have been raised, and the within Petition should be granted.

FACTS AND PRIOR PROCEDURAL HISTORY

9. Mr. Peixoto was convicted of first-degree murder in connection with the death of then three-year old Christopher Affonso, Jr., who died on January 22, 1996.

10. Trial commenced before a jury in the Taunton Superior Court, Hely, J., on March 3, 1997, Hely, J., presiding. See Volume I of the Trial Transcript submitted herewith and in support of the Motion for New Trial, which Motion is annexed hereto as Ex. “B”.

11. As more fully set forth in Peixoto’s within Motion for New Trial, members of the public, including all of Peixoto’s family members, were excluded from the courtroom during jury selection by court officers. See Motion for New Trial, Ex. “B”.

12. As also set forth in Peixoto’s within Motion for New Trial, at the trial, Peixoto maintained his innocence and testified that he was not guilty of the crimes. Another person, Christopher’s mother, Ami Sneed, must have been responsible for the child’s death. See Motion for New Trial, Ex. “B”.

13. Ami Sneed testified that her child was in Peixoto’s care in a downstairs room in her home immediately precedent to her observing the child to be vomiting and unconscious; she claimed to have heard loud bangs before going downstairs to observe the defendant over her child who was vomiting and convulsing. See Motion for New Trial, Ex. “B”.

14. The Commonwealth also presented testimony from the Commonwealth’s pathologist, James Weiner, and a child abuse expert, Dr. Eli Newberger—who is not a pathologist—that cause of death was a six inch skull fracture, a severe injury which both testified was the result of tremendous blunt force trauma that would have immediately caused a coma and death very soon thereafter; in short, they claimed the injury was not survivable. SeeMotion for New Trial, Ex. “B” in the accompanying Appendix.

15. Peixoto vehemently denied any culpability at trial, testifying in his own defense, and calling several witnesses emphasizing Ami Sneed’s many varying statements, including to health service providers and police. See Motion for New Trial, Ex. “B” in the accompanying Appendix.

16. As well, testimony was presented that the child concededly fell down the stairs some 10 days before his death while in his mother’s care, striking his head and breaking his clavicle, and resulting in ensuing instances of being “wobbly”, stumbling, falling, and, according to Sneed, not “being himself”. Indeed, because of these persistent symptoms, Sneed called the child’s pediatrician, who gave Christopher an appointment to be seen earlier on the day he died, but he was never taken to his appointment by his mother. As well, Mr. Peixoto testified that the child was vomiting and convulsing immediately prior to being taken to the hospital where he was pronounced dead. No defense expert, however, was presented at the trial regarding the child’s cause of death. See Motion for New Trial, Ex. “B”.

17. On March 7, 1997, Peixoto was convicted as charged.

18. He appealed his conviction, but his conviction was subsequently affirmed by the Supreme Judicial Court on January 25, 2000. Commonwealth v. Peixoto, 430 Mass. 654 (2000). Subsequent motions for new trial were presented as well but were denied.

19. Because the motion for new trial was filed in the Superior Court after rescript by this Court affirming Peixoto’s conviction for first-degree murder, Peixoto seeks leave to appeal the decision of the lower court denying the new trial motion pursuant to the gatekeeper provision of G.L.c. 278 § 33E which provides in relevant part:

. . .After the entry of the appeal in a capital case and until the filing of the rescript by the supreme judicial court motions for a new trial shall be presented to the court and shall be dealt with by the full court, which may itself hear and determine such motions or remit the same to the trial judge for hearing and determination. If any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court. (Emphasis added).

20. The Petition is timely filed within 30 days of entry of the lower court’s Decision denying the new trial motion, as is the Notice of Appeal of that Decision for which leave to proceed is sought.

NEW AND SUBSTANTIAL ISSUES ARE PRESENTED

21. “New” and “substantial” issues are presented by Peixoto’s New Trial Motion that ought to be considered by the full Court. M.G.L.c. 278 § 33E.

22. The public trial and ineffective assistance of counsel claims are “new” because they were not raised on Peixoto’s prior direct appeal, and have never been considered by this Court; also, the trial transcript was silent on the public trial claim, nor was a record developed on the ineffective assistance of counsel claim until this Motion, and thus, the issue could not have been detected nor considered by the Court in its plenary review of the record on direct appeal under G.L.c. 278 § 33E. See generally Commonwealth v. Randolph, 438 Mass. 290, 293 n. 7 (2002); see also Commonwealth v. Zinser, 446 Mass. 807 (2006) (case law strongly disfavors raising a claim which requires development of a record, such as ineffective assistance of counsel, on direct appeal). See Commonwealth v. Gunter, 459 Mass. 480, 488 (2011) (issue is “new” if evidence not previously available on direct appeal comes to light).

23. “The bar for establishing that an issue is ‘substantial’ . . . is not high. It must only be a meritorious issue in the sense of being worthy of consideration by an appellate court.” Commonwealth v. Gunter, supra, at 487, citing Dickerson v. Attorney Gen., 396 Mass. 740, 743-744 (1986).

PEIXOTO’S RIGHT TO A PUBLIC TRIAL WAS VIOLATED

24. The exclusion of the public from a public trial constitutes a structural error, presumptively requiring a reversal of the conviction. Gonzalez-Lopez, 126 S.Ct. 2557, 2564 n. 4 (2006) (citing Waller, 467 U.S. at 49 n. 9, for the proposition that “violation of the public trial guarantee is not subject to harmlessness review”); Owens v. United States, 483 F.3d at 63; Cohen, 456 Mass. at 105.

25. Although a structural error can be waived by a defendant, the Commonwealth bears the heavy burden of demonstrating a clear and unequivocal waiver of the defendant’s right to a public trial. See Commonwealth v. Cohen, supra.

26. A defendant’s waiver of his right to a public trial is effective only if it is “knowing, intelligent and voluntary.” See Commonwealth v. Williams, 379 Mass. 974 (1980), citing Martineau, 601 F.2d at 1200 (waiver of public trial right must be intentional and knowing).

27. Here, the Commonwealth failed to carry its heavy burden of demonstrating the defendant’s knowing “waiver” of his right to a public trial. Mr. Peixoto was never advised nor aware of his right to a public trial until after his trial, direct appeal, and prior motions for new trial, and he never intended to waive such right. It is a rudimentary principal of constitutional law that a defendant cannot knowingly and intelligently waive a constitutional right of which he has no knowledge. See, e.g., State v. Strode, 217 P.3d 310, 315 and n. 3 (Wash. 2009).

28. The trial court neither conducted a colloquy nor advised Mr. Peixoto of his right to a public trial for jury selection at the time of trial. Waller v. Georgia, 467 U.S. 39, 46 (1984). In circumstances like these, the defendant cannot possibly have knowingly and intelligently waived a right he did not even know he had. “Silence alone. . .is not sufficient to demonstrate a knowing waiver.” Commonwealth v. Alebord, 80 Mass. App. Ct. 432, 438-439 (2011).

29. Readily distinguishable is Commonwealth v. Dyer, 460 Mass. 728, 735-737 (2011), relied upon by the trial judge (Decision, p. 2), where, unlike here, the Defendant knowingly consented to the court’s conducting the voir dire of individual jurors in chambers; the court explained to the defendant there was air-conditioning and it was cooler on a hot summer day; in reply, the defendant indicated, “his desire to waive his own presence [at the voir dire].” Id. at fn 6. Dyer’s counsel indicated the defendant wanted to waive his presence because he needed water, was wearing shackles that hurt him, and he had to go to the bathroom. The trial judge told the defendant that everyone was, “working under the same conditions” and would not permit the defendant to absent himself. Id. On this record, and given the exchanges between the court and both the defendant and his counsel, this Court found that Dyer had obviously waived the public trial right, not even insisting that he be personally present for the voir dire in chambers, and in light of his complaints of discomfort, the defendant “was helped more than harmed by the setting.” Id. Indeed, the Dyer Court observed that the defendant did not even raise the public trial issue in his new trial motion (id. at fn 8), thus leaving the record bereft of any affidavits from the Defendant that he was unaware of his public trial right and did not knowingly forego it–-unlike here, where Peixoto indisputably has shown in uncontradicted affidavits not only that the courtroom was closed, but that he did not knowingly waive his right a public trial.

30. Courtroom closure presents a substantial question that merits a hearing and express findings on the merits of the issue, see, e.g., Commonwealth v. Greineder, SJC No: 08866, Order dated October 23, 2009 (this Court, after oral argument, entered an interim order remanding the case to the Superior Court for purposes of making findings on the courtroom closure issue; Commonwealth v. Buckman, SJC No: 08047, Order dated April 27, 2011 (same), including whether Peixoto purportedly “waived” the public trial right. See, e.g., Commonwealth v. Grant, 78 Mass. App. Ct. 450, 458-464 (2010) (remand concerning findings on waiver).

31. Alternatively, a counsel’s failure to object to the closure of the courtroom to the public during the jury selection process, due to oversight and for no strategic reason, deprives a defendant of the effective assistance of counsel and his right to a public trial, thereby prejudicing him and requiring a reversal of the convictions. See Owens v. United States, 517 F.Supp. 570, 576 (D. Mass. 2007) (counsel was ineffective and should have been aware in 1997 that Sixth Amendment right to public trial applied to jury selection). The trial judge did not even rule on Peixoto’s alternative claim of ineffective assistance of counsel in connection with the public trial right. Consideration of this related issue by a full panel of this Court is fully warranted as well.

PEIXOTO WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHO FAILED TO PRESENT AN ESSENTIAL DEFENSE ESTABLISHING PEIXOTO’S INNOCENCE

32. The right to the effective assistance of counsel includes a duty by counsel to investigate all meritorious defenses and present all favorable proofs. Commonwealth v. Egardo, 426 Mass. 48, 49-51 (1997); Commonwealth v. Aviles, 40 Mass.App.Ct. 440 (1996); Strickland v. Washington, 466 U.S. 668, 694 (1984).

33. In this case, Peixoto demonstrated in the lower court that trial counsel failed to investigate and present exculpatory proofs which would have completely established his innocence of the crimes charged, and properly laid the blame for Christopher Affonso Jr.’s death at the doorstep of the Christopher’s mother and the Commonwealth’s principal witness, Ami Sneed.

34. Peixoto submitted affidavits from two world-renowned forensic pathologists, Dr. Michael Laposata, chief pathologist at Vanderbilt University, and Dr. Waney Squier, a neuropathologist of Oxford University, that the young child’s injuries were consistent with his falling down a staircase while in the care of his mother, and that this serious fall was associated with a fracture of his clavicle and multiple fractures to his skull and bleeding inside the head.

35. Because he survived the fall, the child lived for 10 days experiencing and exhibiting serious neurological problems, including the child’s being “wobbly,” falling and stumbling on repeated occasions, symptoms which are indicative of progressive subdural hematomas occurring after the fall that then subsequently caused the death of the child. See Squier Affidavit ¶ 7, p. 5: “[I]t is clear that Christopher had a fall ten days before his death which was serious enough to cause a fracture of his right clavicle. There is also evidence that he was behaving abnormally and had symptoms and multiple further falls or tumbles in the period between the fall downstairs and his death. . . .”).

36. Significantly, in Laposata’s and Squier’s respective opinions, the Commonwealth experts’ conclusions that these fractures and the subdural hematoma were not survivable for any appreciable interval of time, and could ONLY be caused by one or a series of blows, was simply incorrect. See the Laposata and Squier Affidavits in support of the Motion for New Trial, Exs. “C” and “D” hereto.

37. In denying the motion for new trial, the trial judge acknowledges that “It may be possible for a skull fracture to cause progressive subdural hematomas and death ten days later,” (Decision, p. 6), but then unfairly discounts the opinions of Drs. Laposata and Squier that the skull fracture, with attendant neurological symptoms in the ten days thereafter, by stating that Laposata and Squier “ignored” the evidence of the nature, size and location of the skull fracture and recent trauma injuries on Christopher’s head (Decision, p. 6).

38. To the contrary, Drs. Laposata and Squier considered the relevant medical evidence, including testimony from the Commonwealth’s experts, Drs. Weiner and Newberger, and reached completely opposite conclusions, as detailed in their respective Affidavits. See the Laposata and Squier Affidavits in support of Motion for New Trial, Exs. “C” and “D”.

39. Nor is evidence of a history of child abuse and Ami Sneed’s description of the events that occurred, including Sneed’s description of how Christopher “fell” down the stairs while in her care, at all dispositive of the Peixoto’s claim, as the trial judge found (see Decision, p. 7), since the defense claimed that Christopher’s death was caused by Sneed and her treatment of the child; most significantly, that Christopher’s death was attributable to his fall down the stairs ten (10) days before his death while in her care.

40. Finally, as to the age of bruising to Christopher’s head and the skull fracture allegedly being “fresh” or “recent” as claimed by the Commonwealth experts (see Decision, p. 7), including Dr. Newberger—who, again, is not a pathologist—Dr. Squier, a neuropathologist of considerable expertise and repute with respect to head injuries in young children, noted that: “. . .the timing of the head injury was not fully considered at the autopsy or brain examinations. More detailed histological examination the samples taken was necessary to look for altered blood products and tissue reactions which would allow aging of the bruises and fractures. My own expertise is in examination of the brain and I am surprised that no histological study appears to have been undertaken. Dural samples should have been examined by histology paying particular attention to evidence of older injury and tissue reactive changes.” (Squier Affidavit ¶ 7, pp. 5-6). Put simply, there was a wholly inadequate basis for the Commonwealth experts’ testimony concerning the age of the skull fracture.

41. Accordingly, Peixoto was seriously prejudiced by counsel’s omissions and deficiencies, not only depriving him of a substantial ground of defense in the form of defense expert testimony, but valuable information with which to effectively cross-examine the Commonwealth’s expert(s). Given counsel’s failure to fully investigate, counsel’s representation was deficient and not attributable to a reasonable tactical choice, and a new trial is constitutionally mandated. Commonwealth v. Aviles, 40 Mass. App. Ct. 440 (1996) (counsel failed to investigate and call unrelated persons to corroborate defendant’s alibi defense and his defense of physical incapacity regarding sexual offenses charged); see also Commonwealth v. Haggerty, 400 Mass. 437 (1987)(counsel unreasonably abandoned insanity defense); Griffin v. Warden, 970 F.2d 1355, 1356-1357 (4th Cir. 1992) (failure to investigate and present corroborating testimony of alibi witnesses); Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985) (same). At the very least, a substantial issue was raised and an evidentiary hearing should have been held on Peixoto’s claims.

CONCLUSION
42. The issues raised by the Petition are clearly “new and substantial” and warrant appellate review by a full panel of this Court. Accordingly, leave to appeal should be granted, and upon review by the full Court, the convictions should be reversed.
WHEREFORE, the within Petition should be allowed.
Signed under penalty of perjury this 26th day of January, 2013.
By his attorney,

DONALD A. HARWOOD, ESQ.
BBO# 225110
7 Railroad Avenue
Chatham, NY 12037
(518) 392-0700

Certificate of Service
I, Donald A. Harwood, hereby certify that I have served a copy of the within Petition on the Commonwealth by mailing same, this same day, January 26, 2013, by sending same in the U.S. Mails, to Bristol County District Attorney, 888 Purchase Street, New Bedford, Massachusetts 02740.

______________________
DONALD A. HARWOOD

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