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SJC-12324

                 COMMONWEALTH   vs.   THOMAS A. WOODS.



            Plymouth.    April 5, 2018. - August 7, 2018.

 Present:     Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.


Homicide. Grand Jury. Evidence, Testimony before grand jury.
     Practice, Criminal, Grand jury proceedings. Witness, Self-
     incrimination.



     Indictment found and returned in the Superior Court
Department on October 5, 2006.

     Following review by this court, 466 Mass. 707 (2014), a
motion for a new trial was heard by Thomas F. McGuire, Jr., J.

     A request for leave was allowed by Lowy, J., in the Supreme
Judicial Court for the county of Suffolk.


     Myles D. Jacobson for the defendant.
     Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.     The defendant, Thomas A. Woods, appeals from

the denial of his motion for a new trial.     In 2009, the

defendant was convicted of murder in the first degree and

sentenced to life in prison.    On direct appeal, he challenged
                                                                   2


the admission of his grand jury testimony -- later used as

substantive evidence at trial -- arguing that it was illegally

obtained, because he was not informed before testifying either

that he was a target of a grand jury investigation, or that he

had a right against self-incrimination.   The court concluded

that the trial judge did not err in finding that the defendant

was not a target of the grand jury when he was called before the

grand jury to testify, and affirmed his conviction.    See

Commonwealth v. Woods, 466 Mass. 707, 709, 716-720, cert.

denied, 134 S. Ct. 2855 (2014) (Woods I).   In doing so, the

court also announced a prospective rule, pursuant to its

superintendence authority, requiring that grand jury witnesses

who are targets or likely targets of a criminal investigation be

given self-incrimination warnings before testifying.    Id. at

719-720.

    Following Woods I, the defendant moved for a new trial,

contending that facts not before the trial judge or this court

during his direct appeal establish that the defendant was a

target of a grand jury investigation; accordingly, the defendant

argued, his grand jury testimony was improperly admitted, and he

deserved a new trial.   The motion judge, who was not the trial

judge, disagreed, concluding that although the new facts raised

in the defendant's motion establish that he was a target of the

investigation, this court's holding in Woods I "was not
                                                                         3


dependent on the finding that the defendant was not a target."

The defendant then filed a petition before a single justice of

the county court pursuant to G. L. c. 278, § 33E, asking that

his appeal from the denial of his motion be considered by the

full court.   The single justice granted the petition in March,

2017, concluding that it "present[ed] a new and substantial

question which ought to be determined by the full court."        G. L.

c. 278, § 33E.

    For the reasons that follow, we discern no error in the

motion judge's conclusion, and affirm the denial of the

defendant's motion for a new trial.

    Background.    The facts underlying the defendant's

conviction of murder in the first degree are fully set forth in

Woods I, 466 Mass. at 709-712.   We review only those facts

pertinent to the defendant's postconviction proceedings.

    1.   Grand jury investigation.     In February, 2006, the

defendant appeared as the fifth witness to testify before a

grand jury investigating the December, 2005, shooting death of

Paul Mullen in Brockton.   Prior to testifying, the defendant had

been interviewed by police twice.     Four witnesses testified

before the grand jury prior to the defendant, and two of those

witnesses -- David Sheff and Nicole Derochea -- stated that they

had had heard, secondhand, that the defendant had threatened to

shoot the victim before the killing occurred.     When the
                                                                      4


defendant appeared to testify, he was not informed that he was a

target of the investigation or that he had a right against self-

incrimination.   In his grand jury testimony, he provided an

exculpatory version of events on the night of the shooting, and

explained certain inconsistencies between this version of events

and what he had said during his prior interviews with police.

At the end of a nine-month investigation that involved

approximately forty witnesses and generated 1,700 pages of

transcripts, the grand jury returned an indictment against the

defendant in October, 2006.

     2.   Defendant's pretrial motion in limine.    In March, 2009,

the defendant filed a motion in limine to exclude his grand jury

testimony from use at his trial,1 arguing that he was "not

informed that [he] was a target of the grand jury investigation"

or that he could exercise his right not to testify.    The motion

stated the date of the defendant's grand jury appearance

(February 10, 2006).     The Commonwealth sought to introduce that

testimony in order to illustrate "wide-ranging inconsistencies

and implausibilities in [the defendant's] account[]" of the

night of the shooting.    See Woods I, 466 Mass. at 712 ("His




     1 The motion was also directed at the defendant's prior
statements to police, but the defendant raises no claim of error
with respect to those statements.
                                                                       5


grand jury testimony was admitted in evidence     . . . to

illustrate his conflicting stories and outright lies").

     3.    Commonwealth's pretrial motion in limine.    On April 24,

2009, the Commonwealth filed its own motion in limine seeking to

admit evidence of prior bad acts by the defendant.      The motion

described the testimony of five grand jury witnesses, including

Derochea, who were expected to testify at trial regarding

threats made by the defendant against the victim.      The

Commonwealth attached to the motion the transcripts of the five

witnesses' testimony.    It is not clear from the record, however,

the form in which those transcripts were presented --

specifically, whether the attachments clarified the date of each

witness's testimony -- because those attachments were not

included with the Commonwealth's motion as part of the instant

record.2

     4.    Pretrial hearing on the motions.   On April 27, 2009,

the trial judge held a hearing on both motions.    Defense counsel

reiterated the position that the defendant's testimony was

involuntary because he was a target of the investigation but did

not receive "any warnings that he didn't have to submit to that


     2 We can nevertheless conclude that the Commonwealth
provided these transcripts to the trial judge because the
Commonwealth's motion stated that the grand jury transcripts for
the witnesses were attached and, at the hearing on the motion,
the Commonwealth asked the judge to impound those attachments.
                                                                   6


questioning or that he could assert his Fifth Amendment

privilege."3   He argued that the issue was "whether or not the

government was under any obligation to inform [the defendant] he

was the target of the investigation and . . . that he had a

Fifth Amendment privilege."   Counsel acknowledged that he

"ha[d]n't found a state case directly on point," and stated that

his argument was based on his own practical experience, having

never witnessed a situation where a grand jury target was not

informed of that status or given warnings before testifying.

Before asking the Commonwealth for its position, the trial judge

likewise stated, "I didn't realize this was an issue, so I

haven't researched the law on it.   I know in the federal system




     3 Defense counsel's pretrial argument that the defendant was
a target was based solely on the defendant's own grand jury
testimony: "[I]f you read [the defendant's grand jury
testimony], it's abundantly clear that he was a target . . . .
[H]e is being confronted by the prosecutor in a way that is
designed to further build the case against him that they already
have, in their mind, made. . . . It's not a well, what
happened, what did you see, and what did you do; it's a
confrontational interview or interrogation in front of the grand
jury where he's not represented by counsel. And he's clearly
the target of the investigation at that point." The prosecutor
responded that he had taken the same approach to examining the
defendant as he had with other grand jury witnesses who had
provided inconsistent statements to police, and that such "a
vigorous examination of a witness [in] a grand jury
investigation . . . doesn't make the person a target at the time
of the examination." At the hearing, the trial judge indicated
that he agreed with the Commonwealth: "[W]hen I read the grand
jury, it didn't jump out to me that he was a target. . . . I
got the impression, clearly, that they felt he knew more than he
was saying, and that was the gist of the question[ing]."
                                                                     7


if somebody's going to be a target, they're told.    But I haven't

researched this whole issue, but I will."

      The trial judge asked the prosecutor, who had also been

responsible for the grand jury investigation:    "At the time --

if you can say this, because it would change the whole way that

I'd have to view this, in your opinion, was [the defendant] a

target of the investigation when you brought him to the grand

jury?"   The prosecutor replied that although the defendant's

inconsistencies in his earlier statements to police made him "a

person of interest" -- "[t]here were things that weren't adding

up . . . that he seemed to know a lot more than he was letting

on.   And so that was the nature of our inquiry with [the

defendant]" -- the Commonwealth did not consider him a "target"

until additional "witnesses came in and testified about

threatening statements . . . that [the defendant] had made to

[the victim], and additional information was gathered about [the

defendant] as the investigation went on in subsequent months

leading up to [the] October" indictment.    The prosecutor added

that had the defendant been a target, he would have received a

letter informing him of that status.

      On May 6, 2009, the trial judge issued an oral ruling

denying the defendant's motion.   He found that "[b]ased upon the

evidence before [him], the defendant . . . was not a target, but

[the Commonwealth] believed that he knew more than he told and
                                                                    8


he was not being fully truthful."4     The judge also found that the

defendant was not under the influence of drugs or alcohol,

threatened, coerced, or offered false promises when appearing

before the grand jury, and "was treated appropriately," such

that his testimony was free and voluntary under the totality of

the circumstances.

     5.   Defendant's direct appeal.    At trial, the jury found

the defendant guilty of murder in the first degree.     On direct

appeal, he continued to press his objection to the introduction

of his grand jury testimony, arguing that it infringed on his

"federal and state law rights against compelled self-

incrimination."   We rejected the argument that self-

incrimination warnings were legally required at the time, thus

upholding the trial judge's denial of the defendant's motion in

limine.   Woods I, 466 Mass. at 716-720.    We discerned no error

in the trial judge's finding that the defendant was not a




     4 As for what the trial judge had before him when making
this determination, it appears from the available record that
the judge had received the date and transcript of the
defendant's own grand jury testimony, established through the
defendant's motion in limine and the submission of the
transcript of the defendant's testimony. In addition (albeit in
connection with the Commonwealth's separate motion to admit
evidence of the defendant's prior bad acts), the trial judge had
received the transcripts of five additional grand jury witnesses
(including Nicole Derochea); however, because the Commonwealth's
attachments are not a part of the instant record, we cannot
discern how informed the judge might have been as to the content
and date of each of those five witness's testimony.
                                                                    9


target, and added that "[e]ven if the defendant were a 'target,'

the Commonwealth was under no obligation to warn him of that

status" under Federal or State law.    Id. at 717, citing United

States v. Washington, 431 U.S. 181, 188-190 (1977), and

Commonwealth v. D'Amour, 428 Mass. 725, 743 (1999).

    We then "consider[ed] for the first time" what we perceived

as "the defendant's separate argument that the Commonwealth must

advise targets or potential targets of the grand jury's

investigation of their right not to incriminate themselves."

Woods I, 466 Mass. at 717-718.    Concluding that a grand jury

summons "is a form of compulsion," we "adopt[ed] a rule that

where, at the time a person appears to testify before a grand

jury, the prosecutor has reason to believe that the witness is

either a 'target' or is likely to become one, the witness must

be advised, before testifying, that (1) he or she may refuse to

answer any question if a truthful answer would tend to

incriminate the witness, and (2) anything that he or she does

say may be used against the witness in a subsequent legal

proceeding" (footnote omitted).   Id. at 719-720.5   We clarified


    5  The court adopted the United States Attorney's Manual
definition of "target," as "a person as to whom the prosecutor
or the grand jury has substantial evidence linking him or her to
the commission of a crime and who, in the judgment of the
prosecutor, is a putative defendant." Commonwealth v. Woods,
466 Mass. 707, 716, 719 n.12 (2014) (Woods I), quoting United
States Attorneys' Manual § 9-11.151 (2009).
                                                                  10


that the rule is nonconstitutional and therefore "is only

required to be applied prospectively."    Id. at 720.

     6.   Motion for a new trial.   The defendant subsequently

moved for a new trial, where he focused primarily on refuting

the trial judge's factual determination that he was not a target

of the investigation.6   The defendant attached the grand jury

testimony of the four witnesses who had testified before the

defendant during the grand jury investigation, but whose

testimony was largely unknown to the trial judge, and therefore

was not a part of the record in Woods I.7   Two of those witnesses

-- Sheff and Derochea -- testified to hearsay statements they

had heard about threats the defendant had made against the

victim before the shooting.   The motion judge agreed that the

grand jury testimony of these two witnesses constituted

"substantial evidence" linking the defendant to the crime, thus


     6 The defendant contended that the trial judge's finding
that the defendant was not a target resulted from ineffective
assistance of counsel or prosecutorial misconduct. The
defendant separately argued that he was "deprived of a fair
opportunity for proper application of the Humane Practice Rule,"
but he does not continue to pursue that claim before us.

     7 The defendant submitted the grand jury testimony of the
four witnesses who had testified at the grand jury prior to his
own testimony, including David Sheff and Derochea, with his
motion for a new trial. Although the trial judge had received
Derochea's testimony in some manner (as part of the
Commonwealth's motion in limine to admit prior bad act evidence,
see note 4, supra), it does not appear that the transcripts of
the testimony of Sheff and the other two witnesses were provided
to the trial judge.
                                                                   11


rendering him "a target or potential target of the

investigation."   The judge declined to grant the defendant a new

trial on that basis, however, concluding that this court's

decision in Woods I was not dependent on the factual finding

that the defendant was not a target of the investigation.

    Discussion.      A single justice's determination that a

petition raises a "new and substantial question" under G. L.

c. 277, § 33E, is "final and unreviewable."     Commonwealth v.

Scott, 437 Mass. 1008, 1008 (2002).    We review the denial of the

defendant's motion for a new trial for "a significant error of

law or other abuse of discretion" (citation omitted).

Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).     The

defendant argues that the motion judge made such an error in

concluding that this court's decision in Woods I upholding the

admission of the defendant's grand jury testimony did not depend

on the factual finding that the defendant was not a target of

the investigation.    The motion judge did not err.

    First, the language of Woods I makes clear that the motion

judge was correct.    On direct appeal, the defendant raised the

very same legal argument that he puts before us now:     because he

was a target of the grand jury, he was entitled to self-

incrimination warnings.    The court specified in Woods I, 466

Mass. at 717, that "[e]ven if the defendant were a 'target,' the

Commonwealth was under no obligation to warn him of that status"
                                                                  12


(emphasis added).   Likewise, addressing "the defendant's

separate argument" regarding self-incrimination warnings, the

court acknowledged that it was considering the issue "for the

first time" -- meaning that nothing prior to Woods I required

self-incrimination warnings as a matter of law.   Id. at 717-718.

In other words, just as the Commonwealth was under no obligation

to warn the defendant of his target status, even if he were a

target, so too was the Commonwealth under no obligation at that

time to advise the defendant of his right against self-

incrimination.   The court adopted that very requirement in the

defendant's case, and stated that it was to apply only

prospectively, "to grand jury testimony elicited after the

issuance of the rescript in [that] case."   Id. at 720.   Thus,

irrespective of the defendant's target status, he was not

entitled to the new rule.8


     8 Notwithstanding the language of Woods I, the defendant
suggests in a single sentence of his brief that he is entitled
to the retroactive benefit of the Woods I rule, based on the
court's opinion in Commonwealth v. Adjutant, 443 Mass. 649, 667
(2005). See Commonwealth v. Candelario, 446 Mass. 847, 859
(2006), quoting Commonwealth v. Donahue, 430 Mass. 710, 714 n.1
(2000) (single sentence stating claim with citation
"[in]adequate for appellate consideration" under Mass. R. A. P.
16 [a] [4], as amended, 367 Mass. 921 [1975]). He expands on
this argument somewhat in a postargument letter prompted by a
question during oral argument concerning Adjutant's potential
application. In Adjutant, the court announced a new common-law
rule of evidence, and concluded that the defendant should be
given the benefit of the new rule -- thus entitling her to a new
trial -- because the defendant had alleged the error and argued
for the new rule on direct appeal. Adjutant, supra, citing
                                                                   13


    As the motion judge recognized, the sole difference between

the defendant's argument on direct and his argument on

collateral review is the factual basis for his claim that he was

a target:   now, in addition to his own testimony, he offers the

testimony of the four witnesses who appeared before him during

the grand jury investigation (and whose testimony the motion

judge deemed "substantial evidence" establishing that the

defendant was a target).   At the core of the defendant's instant

argument are the dual suggestions that, had the trial judge been

made aware that two witnesses (Sheff and Derochea) testified at

the grand jury before the defendant did, regarding prior threats

the defendant had made against the victim, the trial judge (1)

would have found that the defendant was a "target" by the time

he testified, and (2) would have granted on that basis the




Commonwealth v. Dagley, 442 Mass. 713, 721 n.10 (2004), cert.
denied, 544 U.S. 930 (2005). Adjutant is inapposite because
that case involved a defendant's direct appeal, whereas this
case involves the defendant's postconviction proceedings. The
defendant offers no authority to support the claim that he is
entitled to the retroactive benefit, on collateral review, of a
nonconstitutional rule first announced in his direct appeal,
where the court specified that the rule would apply "only . . .
to grand jury testimony elicited after the issuance of the
rescript in [Woods I.]" Woods I, 466 Mass. at 720. We likewise
reject the defendant's related assertion that the Woods I rule
is in fact constitutional, not procedural, on the ground that it
is "based in" the constitutional protection against self-
incrimination. See id. at 720 ("This rule is not a new
constitutional rule, but rather an exercise of our power of
superintendence").
                                                                   14


defendant's motion to exclude the defendant's grand jury

testimony.

     We are in no position to engage in such speculation.

First, the fact that the motion judge concluded, based on this

new testimony, that the defendant was a target does not

automatically establish that the trial judge would have reached

the same conclusion.   Both Sheff and Derochea's testimony

involved hearsay, and this may well have affected the weight

that the trial judge would have assigned their testimony when

determining whether it constituted "substantial evidence" that

the defendant was a target when he testified.9    It was not until

after the defendant testified that the grand jury heard from

additional witnesses who described hearing the defendant's

threats firsthand.

     Second, even assuming that the trial judge would have

concluded based on this additional testimony that the defendant

was a target, we cannot say that he would have excluded the

defendant's grand jury testimony on that basis.    The defendant

focuses extensively, and exclusively, on the trial judge's

comment at the motion in limine hearing that the defendant's




     9 In ruling on the defendant's pretrial motion in limine,
the trial judge rejected the defendant's argument (which he
continues to argue before us) that the defendant's own grand
jury testimony, and the nature of the prosecutor's questioning,
also demonstrate that he was a target. See note 3, supra.
                                                                   15


status as a target "would change the whole way that [he would]

have to view this" issue.   What the defendant omits is the trial

judge's additional comment, made at the very outset of the

hearing, that he had not yet researched the law regarding the

defendant's position that target warnings were required.    As our

above discussion makes clear, had the trial judge done so, he

would have discovered that such warnings were not legally

required at that time, and thus the Commonwealth's failure to

provide the defendant with such a warning did not preclude them

from using that testimony at trial.

     Conclusion.   We decline to grant the defendant a new trial

on collateral review based on an alleged violation of a right

that simply did not exist at the time of his trial.10   We affirm

the denial of the defendant's motion for a new trial.

                                      So ordered.




     10In light of our conclusion that the Woods I rule did not
hinge on the defendant's target status, we need not address the
defendant's related arguments that the trial judge's finding
that the defendant was not a target was the product of
ineffective assistance of counsel, prosecutorial misconduct, or
both.
