SUPREME JUDICIAL COURT For the COMMONWEALTH OF MASSACHUSETTS No. SJ-2013-0031 Bristol County Nos.

96-106 __________________________________ COMMONWEALTH OF MASSACHUSETTS vs. BRIAN PEIXOTO ________________________________ REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF 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 Preliminary Statement Petitioner, Brian Peixoto (“Petitioner” or “Peixoto”), files this Reply Memorandum of Law in further support of his petition 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. Without waiving any claims, this Reply Memorandum responds only to those points which require further response that are raised in the Commonwealth’s Opposition Memorandum dated June 6, 2013 (“C.Opp.”).

THE ISSUES PRESENTED ARE “NEW” Contrary to the Commonwealth’s Opposition (pp. 24-30), the issues presented are “new” since they involve claims of denial of the public trial right and the effective assistance of counsel which were not raised on Peixoto’s direct appeal. The record on Peixoto’s direct

appeal was concededly silent as to whether there had been an exclusion of the public from jury selection; thus, the issue clearly could not have been detected nor considered by the Court in its plenary review of the record on Peixoto’s direct appeal under G.L.c. 278 § 33E. See, e.g.,

Commonwealth v. Robert Morganti, SJ 2012-0014, Gants, J. (granting leave to appeal denial of new trial motion raising public trial claim). Instead, a new trial motion was required so that a record could be developed concerning the defendant’s public trial claim and the ineffective assistance of counsel. See Commonwealth v. Downey, 78 Mass. App. Ct.

224, 225 fn 2 (2010) (“The defendant's broader claim that the trial judge closed the courtroom for a more extensive period cannot be resolved solely from the transcript of voir dire proceedings and must be resolved in the context of a motion for a new trial”); Commonwealth v. Zinser, 446 Mass. 807 (2006) (case law strongly disfavors raising a

2

claim which requires development of a record, such as ineffective assistance of counsel, on direct appeal). The Zinser Court made clear that it is entirely appropriate to raise a new trial claim——like this one— following a direct appeal and where a record must be developed, such as on a claim of ineffective assistance of counsel, and the claim is not properly raised on direct appeal. For that matter, claims of ineffective assistance of counsel are deemed an exception to the waiver doctrine, and thus, a defendant cannot be held to have waived a claim when the failure to raise it results from ineffective assistance of counsel. See generally Commonwealth v. Here, Pexioto

Miranda, 22 Mass.App.Ct. 10, 17-18 (1996).

has demonstrated that he was unaware of his right to a public trial during jury selection until long after his trial and direct appeal. 415 Mass. 249, 250 (1993). Accordingly, the issues raised by Peixoto’s motion for new trial are new and could not have been detected and/or considered by this Court on the prior direct appeal. A miscarriage of justice will result if Petitioner’s constitutionally-infirm convictions are let stand. Commonwealth v. Nieves, 429 Mass. 763, 770 (1999). See also Breese v. Commonwealth,

3

THE ISSUES PRESENTED ARE “SUBSTANTIAL” “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). Here, the issues raised by

Peixoto are not only new, but also “substantial.” A. The Public Trial Claim The issue of whether Peixoto’s constitutional right to a public trial was violated by the deliberate and complete closure of the courtroom for the entirety of the jury selection process easily passes muster under the standard of review for “substantial” issues worthy of this Court’s appellate consideration. See Commonwealth v.

Cohen, 456 Mass. 94 (2010); Presley v. Georgia, 130 S.Ct. 721, 724 (2010); Presley-Enterprise Co. v. Superior Court of Cal., 464 U.S. at 505; Waller v. Georgia, 467 U.S. at 46; see also Owens v. United States, 483 F.3d at 61; Commonwealth v. Alebord, 80 Mass. App. Ct. at 432. Indeed, 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.

4

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 (“Once a petitioner demonstrates a violation of his Sixth Amendment right to a public trial, he need not show that the violation prejudiced him in any way. The mere

demonstration that his right to a public trial was violated entitles a petitioner to relief.”); Cohen, 456 Mass. at 105 (violation of this right, “is a structural error and not susceptible to harmless error analysis”), quoting Commonwealth v. Baran, 74 Mass. App. Ct. at 296; see also Commonwealth v. Edward, 75 Mass. App. Ct. 162, 174 (2009). Accordingly, the public trial issue is plainly “substantial” for purposes of this Court’s appellate review. Peixoto carried his prima facie burden of

demonstrating the closure of the courtroom during jury selection at his trial, see Commonwealth v. Cohen, supra, 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” to Petition). 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.,

5

Commonwealth v. Greineder, SJC No: 08866, order dated October 23, 2009, remanding case for hearing), on the stated 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). 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, Commonwealth v. Cohen, 455 Mass. at 613, until after his trial, direct appeal, and motions for new trial. Moreover, 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. Georgia, 467 U.S. 39, 46 (1984). Waller v.

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). Readily distinguishable is Commonwealth v. Dyer, 460 Mass. 728, 735-737 (2011), relied upon by the trial judge

6

(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. At the very least, courtroom closure presents a substantial question that merits a hearing and express findings on the merits of the issue, including whether Peixoto purportedly “waived” the public trial right. Thus,

7

a remand for a hearing is at least required.1

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); see also Commonwealth v. Grant, 78 Mass. App. Ct. 450, 458-464 (2010) (remand concerning findings on waiver). 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, compare, e.g., Commonwealth v. Lavoie, 464 Mass. 83

1

The Commonwealth makes cursory complaint that the defendant did not provide in support of his motion an affidavit from his trial attorney (C.Opp. 29), a point neither referenced nor relied upon by the trial judge, Hely, J., in denying the motion, and understandably so, since Peixoto’s trial attorney, Raymond Veary, is now a sitting associate justice of the Massachusetts Superior Court.

8

(2013), 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. 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. Thus, consideration of the public trial issue by a full panel of this Court is fully warranted on this ground as well. B. Ineffective Assistance of Counsel Claim—Cause of Death Additionally, a “new” and “substantial” issue was clearly raised in connection with Peixoto’s claim of ineffective assistance of counsel where 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. Because the

record on this claim was also not developed at the time of Peixoto’s trial and direct appeal due to the ineffective assistance of prior trial and appeal counsel, it, too, is a

9

“new and substantial” issue worthy of this Court’s fully appellate review. 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. In denying the motion for new trial, the trial judge acknowledged that, “It may be possible for a skull fracture

10

to cause progressive subdural hematomas and death ten days later,” (Decision, p. 6), but then unfairly discounted the opinions of Drs. Laposata and Squier about the skull fracture, with attendant neurological symptoms in the ten days thereafter, 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). 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” in the Appendix to the Petition. 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 erroneously 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

11

was attributable to his fall down the stairs ten (10) days before his death while in her care. And 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. 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). simply, there was a wholly inadequate basis for the Commonwealth experts’ testimony concerning the age of the skull fracture. Put Dural

12

Thus, 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. Peixoto has 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 crossexamine 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)

13

(same).

At the very least, a substantial issue was raised

and an evidentiary hearing should have been held on Peixoto’s claims. CONCLUSION 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. Alternatively, the case

should be remanded to the trial court for an evidentiary hearing at which proper findings can be made concerning the claims raised by Peixoto’s Motion.

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, June 18, 2013, by sending same in the U.S. Mails, to Bristol County District Attorney, 888 Purchase Street, New Bedford, Massachusetts 02740. ______________________ DONALD A. HARWOOD

14

15