NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13818
COMMONWEALTH vs. CRAIG HOOD.
Suffolk. April 6, 2026. - August 31, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Homicide. Firearms. Assault and Battery by Means of a
Dangerous Weapon. Constitutional Law, Plea, Assistance of
counsel. Due Process of Law, Plea. Practice, Criminal,
Plea, Assistance of counsel, Conduct of government agents,
Disclosure of evidence, Voluntariness of confession, New
trial. Evidence, Guilty plea, Exculpatory, Disclosure of
evidence, Motive, Voluntariness of statement.
Indictments found and returned in the Superior Court Department on November 16, 1993.
A motion to withdraw guilty pleas and for a new trial, filed on July 2, 2020, was heard by Debra A. Squires-Lee, J.
The Supreme Judicial Court granted an application for direct appellate review.
Jennifer H. O'Brien for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney, for the Commonwealth.
2
GEORGES, J. In June 1995, the defendant, Craig Hood,
pleaded guilty to two counts of murder in the second degree and
one count of unlawful possession of a firearm, in connection
with the shooting deaths of twenty-three year old Tracy Brown
and eighteen year old Celine Kirk.1 In July 2020, the defendant
filed a motion to vacate his guilty pleas, contending that the
pleas should be vacated because of undisclosed exculpatory
evidence, newly discovered evidence, ineffective assistance of
his plea counsel, and the involuntariness of his pleas. After
an evidentiary hearing, the motion was denied. Discerning no
error of law or abuse of discretion, we affirm.
Background. 1. The murders of Kirk and Brown. We
summarize the facts as recited by the prosecutor at the plea
hearing and reserve certain details for later discussion. See
Commonwealth v. Henry, 488 Mass. 484, 485 (2021). Where the
plea colloquy did not identify an officer by name, we rely on
the motion record only to supply that identifying context.
On September 29, 1993, Boston police officers responded to
an apartment in the Mattapan section of Boston following a 911
call from a young child. When police arrived, they were let
into the apartment by Brown's two year old son. Inside, they
1 The defendant also pleaded guilty to one count of assault and battery by means of dangerous weapon and one count of unlawful possession of a firearm in connection with the unrelated, nonfatal shooting of Glenn McLaughlin.
3
found Brown's infant daughter asleep in her crib. Police also
discovered the bodies of Brown and Kirk, who were both dead.
Brown had sustained one gunshot wound to the head and another to
her arm, while Kirk had sustained two gunshot wounds to her
head.
In the following days, Detectives Daniel Keeler and John
Brazil of the Boston police department interviewed, among other
people, Nikki Coleman, one of Kirk's friends. Coleman told them
that, on the afternoon of the murders, she spoke with Kirk on
the telephone. During that call, Coleman could hear the voice
of a man, whom Kirk identified as the defendant. Coleman was
familiar with the defendant, having known him for several
months. Coleman overhead Kirk and the defendant arguing about a
gold chain that the defendant had loaned to Kirk, but that Kirk
allegedly failed to return. In addition to describing her call
with Kirk, Coleman gave police the defendant's Brockton address
and identified him from a photograph.
Police discovered several outstanding warrants for the
defendant, including one for the nonfatal shooting of Glenn
McLaughlin in June of that year. The defendant had confronted
McLaughlin and shot him once in the leg with a .25 caliber
handgun. The bullet, which passed through McLaughlin's leg, was
recovered by police and later compared to three bullets removed
from Brown and Kirk's bodies. The Boston police department's
4
ballistics unit determined that the four bullets were fired from
the same gun.
The defendant was arrested in Brockton on the outstanding
warrants. While in custody, he asked to speak with the
detectives who arrested him. He then gave Keeler and Sergeant
Detective William Mahoney a detailed confession to the shootings
of Brown and Kirk. The confession aligned with the physical
evidence found in the apartment and included facts that only the
killer would have known. The defendant also described what he
had been wearing at the time of the shootings, including a green
jacket and black boots. The police collected those items and
sent them to the Boston police crime laboratory for testing.
Preliminary tests were positive for blood, but the amount of
blood was insufficient for blood typing.
The defendant told detectives that he argued with Kirk
about the gold chain on the night of the murders. When Kirk
refused to return the chain, she began escorting the defendant
out of the apartment. The defendant then shot Kirk in the head.
Brown fled into the bedroom where her infant daughter was
sleeping. The defendant followed and shot Brown twice. He then
returned to Kirk and shot her again before Brown's son pushed
him out of the apartment. When asked why he killed Brown, the
defendant said she was a witness who needed to be eliminated.
5
2. The indictments and guilty pleas. In November 1993, a
grand jury indicted the defendant on two counts of murder in the
first degree for the killings of Brown and Kirk, in violation of
G. L. c. 265, § 1; one count of assault and battery by means of
a dangerous weapon for the shooting of McLaughlin, in violation
of G. L. c. 265, § 15A; and two counts of unlawful possession of
a firearm, in violation of G. L. c. 269, § 10 (a). In June
1995, the defendant, who was represented by counsel, pleaded
guilty to two counts of murder in the second degree and to the
remaining charges. For the murder charges, he was sentenced to
two consecutive terms of life in State prison, with the
possibility of parole after thirty years. Additionally, he
received a concurrent sentence of from seven to ten years in
State prison for the assault and battery by means of a dangerous
weapon charge, and two concurrent sentences of from four to five
years in State prison for the unlawful possession charges.
3. The murder of John Mulligan. The defendant's arguments
on appeal are rooted in the investigation into the killing of
Boston police Detective John Mulligan, the details of which are
necessary context for our later discussion. The Mulligan murder
has come before this court before. In Commonwealth v. Ellis,
432 Mass. 746 (2000) (Ellis I), S.C., 475 Mass. 459 (2016)
(Ellis II), overruled in part by Commonwealth v. Britt, 465
Mass. 87, 100 (2013), we examined the investigation in detail.
6
We draw on pertinent portions of that discussion here,
supplemented by the motion judge's findings.
On September 26, 1993, three days before Kirk and Brown
were murdered, Mulligan was shot in his police vehicle outside a
Walgreens pharmacy store in the Roslindale section of Boston.
See Ellis I, 432 Mass. at 747. The investigation into
Mulligan's death intersected with the investigation into the
deaths of Kirk and Brown. The intersection stems from a police
interview with Sean Ellis, who was living at the time with Kirk
and Brown, his cousins. During that interview, Ellis placed
himself, Kirk, and a third individual, Terry Patterson, at the
same Roslindale Walgreens around the time of Mulligan's death.
Ellis was later indicted and, after two mistrials, convicted of
murder in the first degree for the killing of Mulligan. Id. at
749. Patterson was tried separately on a theory of joint
venture and likewise convicted of murder in the first degree.
See Commonwealth v. Patterson, 432 Mass. 767, 767-768, 770-771
(2000), S.C., 445 Mass. 626 (2005), overruled in part by Britt,
465 Mass. at 99-100.
Ellis filed a motion for a new trial, arguing that the
police's investigation was tainted due to newly discovered
evidence indicating that three detectives who investigated the
Mulligan murder, including Brazil, were engaged in unrelated
criminal conduct. See Ellis I, 432 Mass. at 764-765. At the
7
time of Ellis I, there was no evidence "suggesting that the
subject detectives procured false evidence in connection with
the investigation of [Ellis]" or that Mulligan was in any way
involved in the criminal scheme. Id. at 765. Accordingly, this
court affirmed Ellis's convictions and the order denying his
motion for a new trial. Id. at 765-766.
In 2013, Ellis filed a second motion for a new trial based
on newly discovered evidence tending to show that Mulligan
participated in "crimes of police corruption" with the
detectives who investigated his murder, and other information
that "provided . . . the police [with] possible third-party
culprits." Ellis II, 475 Mass. at 460. The motion was granted
because six categories of newly discovered evidence established
that the police did not vigorously pursue alternative leads and,
coupled with the detectives' conflict of interest in
investigating Mulligan's murder, provided a strong defense under
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). See
Ellis II, supra at 470.
We rejected the Commonwealth's contention that the newly
discovered evidence added "nothing material" to what Ellis
presented in his first motion for a new trial, reasoning that
"[t]he complicity of [Mulligan] in the detectives' malfeasance
fundamentally changes the significance of the detectives'
corruption" because it provided a "powerful incentive to prevent
8
a prolonged or comprehensive investigation" that might reveal
their own wrongdoing. Ellis II, 475 Mass. at 474-476.
Concluding that there was no abuse of discretion in granting
Ellis's second motion for a new trial, we affirmed. Id. at 481.
4. Motion to withdraw guilty pleas. Over the past several
decades, the defendant has filed multiple motions to vacate his
guilty pleas and for a new trial.2 In July 2020, the defendant
filed the motion for a new trial that gives rise to this appeal.
He sought to withdraw his guilty pleas on four grounds: the
Commonwealth failed to disclose exculpatory evidence relevant to
a possible third-party culprit defense, newly discovered
evidence cast doubt on his guilt, his plea counsel was
ineffective for failing to challenge a pretrial protective
order, and his pleas were not voluntary. The evidence on which
the defendant relied fell generally into two categories. The
first consisted of materials from the Mulligan investigation,
which were subject to a protective order that barred plea
2 The first motion, filed pro se, was withdrawn without prejudice. The second motion, also filed pro se, was denied without an evidentiary hearing by the same Superior Court judge who accepted the defendant's plea. The Appeals Court affirmed the denial in an unpublished decision. Commonwealth v. Hood, 56 Mass. App. Ct. 1106 (2002). The third motion, for which the defendant was represented by counsel, was denied by the same Superior Court judge who accepted his plea and denied his prior motion. The Appeals Court again affirmed in an unpublished decision. Commonwealth v. Hood, 87 Mass. App. Ct. 1105 (2015).
9
counsel from sharing them with the defendant. The second
consisted of evidence of police misconduct in the Ellis matter.
The defendant filed two affidavits in support of the
motion. In his first affidavit, he averred that (1) plea
counsel told him that he had "no chance at trial" in light of
his confession; (2) plea counsel sought discovery related to the
Ellis and Patterson matters, but could not discuss or share it
with the defendant; (3) the defendant never considered any of
the information that "may have been in" the Ellis and Patterson
matters; and (4) had the defendant known about this information,
he would not have pleaded guilty.
In his second affidavit, the defendant averred that had he
known about Mulligan's misconduct and that of the investigating
detectives, some of whom were involved in the investigation of
the Kirk and Brown murders, he would not have pleaded guilty.
He further averred that his decision to plead guilty was based
on several conversations he had with plea counsel, having
weighed the Commonwealth's evidence, and plea counsel's opinion
that the defendant's confession weighed heavily against a thirdparty culprit defense. Finally, he averred that he did not know
that his plea counsel was prevented from sharing evidence from
the Ellis and Patterson matters with him and, had he known this,
he would not have pleaded guilty.
10
An evidentiary hearing was held by a different Superior
Court judge (motion judge) from the one who accepted the
defendant's guilty pleas.3 The evidentiary hearing was limited
to two issues: the alleged failure to disclose exculpatory
material from the Mulligan investigation in violation of Brady
v. Maryland, 373 U.S. 83, 87 (1963); and the defendant's claim
of ineffective assistance of counsel. The defendant's plea
counsel and the prosecutor were the only witnesses to testify.
a. Factual findings. Based on the testimony and exhibits
introduced at the evidentiary hearing, the motion judge found
the following facts.
Between January 1994 and May 1995, the prosecutor sent plea
counsel at least twenty-one transmittal letters detailing
discovery material provided to the defendant. Based on the
prosecutor's credited testimony, the motion judge found that the
prosecutor's general practice was to review discovery packages
to ensure they included everything that was described in the
accompanying transmittal letter, and that the prosecutor
followed that practice in the defendant's case. The motion
judge further found that the defendant received the discovery
materials referenced in those twenty-one letters because she
credited plea counsel's testimony that he would have notified
3 The plea judge had since retired.
11
the prosecutor if he had not received something that was
identified in a transmittal letter.
Because plea counsel was aware that Kirk was Ellis's cousin
and that she was alleged to have been with Ellis the night of
Mulligan's murder, plea counsel sought discovery from the
Mulligan investigation concerning Ellis and Patterson to support
a third-party culprit defense that whoever killed Mulligan also
killed Brown and Kirk. Between January and July 1994, plea
counsel made various requests for discovery concerning the
Mulligan investigation. He particularly sought any information
that placed Kirk at the scene of Mulligan's murder, believing
such information would help demonstrate a motive for whoever
shot Mulligan to kill Kirk.
Ellis's counsel opposed the production of discovery prior
to the conclusion of Ellis's trial, raising concerns that the
material produced would be made public and deny Ellis a fair
trial. After Ellis's second mistrial, a Superior Court judge
(who was neither the plea judge nor the motion judge) ordered
that the material be provided to plea counsel and his associate
subject to a protective order barring them from discussing the
material with or providing the material to anyone else,
including the defendant. The subsequent discovery, detailed in
an eleven-page discovery letter, was provided to plea counsel in
April 1995, over one month before the defendant pleaded guilty.
12
Consistent with the protective order, plea counsel did not
discuss the produced material with the defendant prior to his
plea. At the evidentiary hearing, plea counsel could not recall
any specific material that he believed he "should" have
discussed with the defendant. He testified, however, that if he
had received such material, he would have sought relief from the
protective order. He did not do so. The motion judge therefore
inferred that plea counsel did not view anything in the Mulligan
investigation materials as necessary to discuss with the
defendant before the guilty pleas.
The motion judge found that plea counsel had received most
of the documents the defendant claimed had not been produced.
The motion judge did not determine whether any particular
document had been withheld from the defendant. Instead, the
motion judge assumed that certain materials had not been
produced and considered whether their absence mattered.
Those materials consisted of (1) two Federal Bureau of
Investigation (FBI) reports describing information provided by a
confidential informant, who claimed that Ellis admitted to
assisting in Mulligan's murder; (2) two police reports that
recounted statements made by Raven James -- an associate of
Ellis -- that Ellis, who had access to a .25 caliber handgun
before the Mulligan murder, "smiled and then looked at
Patterson" when James asked who had killed Mulligan; (3) two
13
recorded interviews of Evoney Chung, who was in the Walgreens
parking lot around the time of Mulligan's death and saw two
Black males in the parking lot; and (4) various telephone
hotline tips related to the murders of Kirk and Brown, including
a tip from their neighbor, Ada Jackson, who reported seeing a
person leaving Kirk and Brown's apartment on the day of the
murders,4 and another from a tipster who allegedly overheard two
school children on the subway say that a boyfriend had killed
the victims.
b. Denial of motion to withdraw guilty pleas. After
discrediting the defendant's "self-serving" averments that he
would not have pleaded guilty had he known of the Mulligan
investigation material or the evidence of police misconduct from
Ellis II, the motion judge concluded that this information would
not have materially affected the defendant's decision to plead
guilty. The motion judge reasoned that the material was either
cumulative of other information already known by the defendant,
did not significantly add to the "wealth" of information the
defendant already possessed, or was unconnected to the
investigation of Kirk and Brown's killings. For many of the
4 In her later statement to the police, Jackson described the person she saw as a "[B]lack male wearing a green jacket." The record reflects that the defendant is Black.
14
same reasons, the motion judge rejected the defendant's argument
that his pleas were involuntary.
The motion judge also concluded that rejecting the plea
offers would not have been rational in light of the
Commonwealth's strong case. That case included the defendant's
detailed confession, ballistic evidence linking the firearm used
to shoot McLaughlin to the firearm used to shoot Kirk and Brown,
and evidence placing the defendant at the scene at around the
time of the murders. The judge also considered the benefit the
defendant received from the pleas. By pleading guilty to murder
in the second degree, he avoided mandatory sentences of life
without the possibility of parole for murder in the first
degree.
For those reasons, the motion judge was not persuaded that
justice may not have been done and denied the defendant's
motion. The defendant appealed, and we allowed his application
for direct appellate review.
Discussion. A motion to vacate a guilty plea is treated as
a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b),
as appearing in 435 Mass. 1501 (2001), and may be granted "any
time it appears that justice may not have been done."
Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "We review
. . . to determine whether the judge abused [his or her]
discretion or committed a significant error of law" (citation
15
omitted). Henry, 488 Mass. at 490. Where, as here, an
evidentiary hearing has been held, "we accept the [judge's]
findings where they are supported by substantial evidence in the
record, and we defer to the judge's assessment of the
credibility of witnesses" (quotations and citation omitted).
Commonwealth v. Dew, 492 Mass. 254, 260–261 (2023). "However,
we make an independent determination as to the correctness of
the judge's application of constitutional principles to the
facts as found" (quotation and citation omitted). Id. at 261.
The defendant's claims arise against a troubling historical
backdrop. The investigation into Mulligan's murder was later
shown to have been compromised by serious police corruption, and
that investigation intersected in important respects with the
investigation into the murders of Kirk and Brown. That
backdrop, however, does not relieve the defendant of his burden
to connect the undisclosed or later-discovered information to
his own case and to his own decision to plead guilty. After an
evidentiary hearing, the motion judge concluded that the
defendant failed to make that showing. The record supports that
conclusion.
1. Exculpatory and newly discovered evidence, protective
order, and ineffective assistance claims. The defendant first
raises several claims that turn on what he did not know about
the Mulligan investigation before entering his guilty pleas. He
16
argues that the Mulligan investigation material constituted
withheld exculpatory evidence or newly discovered evidence. He
also argues that the judge who entered the protective order
abused her discretion in doing so, particularly where the order
precluded plea counsel from sharing that material with him.5
Finally, he claims that plea counsel was constitutionally
ineffective for failing to object to the protective order,
failing to seek modification of the order once plea negotiations
began, and failing to review all the Mulligan investigation
material or pursue leads from that material before advising him
to plead guilty.
These claims are doctrinally distinct, but they all rest on
the same showing of prejudice or materiality. See Henry, 488
Mass. at 495, citing Scott, 467 Mass. at 360-361 (in context of
motion to withdraw guilty plea, standard for newly discovered
and withheld exculpatory evidence "borrow[s] from our
5 To the extent the defendant argues that the protective order itself violated his due process rights, apart from his other claims, that argument is waived. Such a challenge to the protective order could have been -- but was not -- raised in the defendant's first motion for a new trial. See Mass. R. Crim. P. 30 (c) (2), 378 Mass. 900 (1979). Our review is therefore limited to whether the protective order created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). For essentially the same reasons that the defendant failed to establish prejudice on his other claims, the protective order did not create a substantial risk of a miscarriage of justice.
17
jurisprudence on claims that the ineffective assistance of
counsel induced a guilty plea"); Commonwealth v. Clarke, 460
Mass. 30, 47 (2011), abrogated in part by Chaidez v. United
States, 568 U.S. 342 (2013) (outlining prejudice for ineffective
assistance of counsel in context of guilty plea); Commonwealth
v. Holliday, 450 Mass. 794, 805, cert. denied, 555 U.S. 947
(2008) (challenge to protective order requires showing of
prejudice).6 Specifically, the defendant must show that there is
a reasonable probability that he would not have pleaded guilty
had he known of the Mulligan investigation material, and that
rejecting the plea offer would have been rational under the
circumstances.7 See Commonwealth v. Lastowski, 478 Mass. 572,
577 (2018); Scott, supra at 361-362. The question is not
whether the information would have had some arguable value. The
question is whether it "would have materially influenced [the
defendant's] decision to plead guilty." Scott, supra at 360.
6 The defendant's protective order argument substantially overlaps with his Brady violation argument. Cf. United States v. Simels, 636 Fed. Appx. 13, 15 (2d Cir. 2015) (analyzing defendant's argument that "because the government used the protective order to withhold what he asserts is exculpatory information, the government violated his due process rights under Brady"). In the circumstances of this case, we therefore analyze prejudice on those claims together.
7 As in prior cases, we need not decide whether a defendant who enters a voluntary and intelligent plea thereby "waive[s] the right to contest the claims of newly discovered evidence or prosecutorial nondisclosure." Henry, 488 Mass. at 496 n.6.
18
The defendant claims that the information from the Mulligan
investigation would have been material because it provides
additional evidence that Ellis killed Mulligan, which in turn
bolsters the theory that Ellis had a motive to kill Kirk. We
are not convinced. Motive may be important, but motive alone
does not make a third-party culprit theory materially stronger
for plea-withdrawal purposes. Cf. Commonwealth v. Andrade, 488
Mass. 522, 533 (2021), citing Commonwealth v. Scott, 470 Mass.
320, 328 (2014). Our case law requires a defendant to show that
the third party's acts are "so closely connected in point of
time and method of operation" that it raises doubt as to the
defendant's identification as the culprit (citation omitted).
Andrade, supra at 532. Similar principles apply to a Bowden
defense based on the police's failure to investigate a thirdparty culprit. See Commonwealth v. Bright, 463 Mass. 421, 440–
441 (2012) (for Bowden defense, "mere fact that" others might
have had "motive to murder the victim was of minimal probative
value absent other information that potentially linked [such
persons] to the crime" [quotation and citation omitted]).
The Mulligan investigation information did not add any
material evidence connecting Ellis, Patterson, or another third
party to the killings of Kirk and Brown. For example, the FBI
reports addressed Ellis's alleged role in Mulligan's murder, not
the Kirk and Brown killings. Likewise, the Chung interviews
19
bore on who was at the Walgreens the night Mulligan was shot,
not who killed Kirk or Brown three days later. At best, the
James reports suggested that Ellis had access to a .25 caliber
handgun, the same caliber as the firearm used to kill Kirk and
Brown. The motion judge addressed that point but concluded that
it did not materially change the plea calculus. See Andrade,
488 Mass. at 533-534 (evidence that other individuals possessed
same caliber of ammunition as that used to kill victim was
inadequate to support third-party culprit defense).
Additionally, although one of the hotline tips implicates a
boyfriend in the killings and therefore provides a possible
third-party culprit other than Ellis, it is speculative. See
Commonwealth v. Acevedo, 492 Mass. 381, 390 (2023) (evidence
proffered to mount third-party culprit defense "cannot be too
remote or speculative" [citation omitted]). Without more, as
the motion judge concluded, the Mulligan investigation material
did not "significantly increase[] the strength or viability of
any [of] Hood's defenses."
In addition to the lack of connection, the Mulligan
investigation material also was cumulative in important
respects. Cf. Commonwealth v. Lykus, 451 Mass. 310, 326 (2008)
("Newly discovered evidence that is merely cumulative of
evidence admitted at the trial will carry little weight");
Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992) ("If the
20
undisclosed evidence is cumulative, . . . the failure to
disclose that evidence does not warrant the granting of a new
trial"). For example, plea counsel already possessed Jackson's
statement to police describing a Black male wearing a green
jacket leaving Kirk and Brown's apartment, and another witness's
statement implicating a boyfriend as the shooter. More
generally, before the defendant pleaded guilty, plea counsel
already knew the core facts forming the basis of the defense
that Kirk had been killed because of what she knew about the
Mulligan murder. This included facts tending to show Kirk's
alleged connection to Ellis, as well as Ellis's and Patterson's
alleged connections to the Mulligan murder.
In sum, with the evidence in the Mulligan investigation
material lacking connection to the victims' murders, being
cumulative, or both, the motion judge had adequate grounds to
conclude that the defendant failed to establish a reasonable
probability that he would not have pleaded guilty. While the
defendant asserts, without explanation, that the material would
have led him to reject the plea, the judge was not required to
accept that assertion. See Commonwealth v. Mosso, 496 Mass.
768, 780 (2025) ("Proof of prejudice cannot be based on mere
conjecture or speculation as to outcome" [quotation and citation
omitted]).
21
The record also supports the motion judge's determination
that the defendant failed to show that rejecting the guilty
pleas would have been rational under the circumstances. A
defendant may make that showing by demonstrating that he had an
"available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). The defendant made no such
showing here.
The Commonwealth's case was strong. See Commonwealth v.
Lavrinenko, 473 Mass. 42, 59 n.20 (2015) (strength of
prosecution's case may be considered in assessing prejudice).
Coleman identified the defendant as the man who had been
speaking with Kirk in her apartment about the gold chain,
placing him inside the apartment on the day of the murders.
Jackson saw a Black male wearing a green jacket leaving Kirk and
Brown's apartment around the time of the murders. In his
confession, the defendant told police that he had been wearing a
green coat when he committed the murders. Police later
recovered a green coat with blood on it from the defendant's
girlfriend's home. Ballistics evidence tied the firearm used in
the murders to the firearm used to shoot McLaughlin, who
identified the defendant in a photographic array. Most
significantly, the defendant gave a detailed confession to the
killings.
22
Against that evidence, the defendant has not identified a
substantial defense that would have made it rational to reject
pleas that made the defendant eligible for parole, where he
otherwise faced the risk of mandatory life sentences without the
possibility of parole. See Henry, 488 Mass. at 493 (discussing
severity of sentence avoided by guilty plea). Cf. Commonwealth
v. Price, 106 Mass. App. Ct. 376, 379 (2025) (defendant's
knowledge "that he had the ability to avoid a mandatory life
sentence without parole if he accepted the plea deal" was
relevant to voluntariness analysis).
For these reasons, the motion judge did not err in
concluding that the defendant failed to prove prejudice or
materiality arising from the alleged nondisclosure, the laterdiscovered evidence, the protective order, or plea counsel's
handling of that order.
2. Egregious police misconduct. The defendant next argues
that his pleas should be vacated because they were rendered
involuntary by egregious police misconduct. Specifically, he
points to the police misconduct detailed in Ellis II and argues
that because many of the same police officers and detectives --including Keeler and Brazil -- were involved with the
investigations of the murders of Mulligan, Brown, and Kirk, his
guilty pleas should be vacated.
23
"Due process requires that a plea of guilty be accepted
only where the contemporaneous record contains an affirmative
showing that the defendant's plea was intelligently and
voluntarily made" (quotation and citation omitted). Scott, 467
Mass. at 345. "A plea may be defective . . . where it has been
involuntarily induced by government misconduct that since has
been discovered" (quotation and citation omitted). Commonwealth
v. Ruffin, 475 Mass. 1003, 1003 (2016). We previously "adopted
a two-pronged test to determine when government misconduct is so
egregious that it renders a guilty plea involuntary, and thus in
violation of a defendant's rights to due process." Commonwealth
v. Hallinan, 491 Mass. 730, 744 (2023). To withdraw a guilty
plea in these circumstances, the defendant must show that "(1)
egregious government misconduct took place in connection with
the defendant's case and preceded the entry of the guilty plea;
and (2) the misconduct was material to the defendant's decision
to plead guilty." Commonwealth v. Claudio, 484 Mass. 203, 206
(2020).
A defendant claiming egregious government misconduct must
show that the misconduct "preceded the entry of his or her
guilty plea," was "undertaken by government agents," and
"occurred in the defendant's case." Hallinan, 491 Mass. at 745.
The last requirement is critical here. It requires "a nexus
between the government misconduct and the defendant's own case."
24
Ruffin, 475 Mass. at 1004. We agree with the motion judge that
the defendant did not make that showing.
The additional misconduct evidence examined in Ellis II
changed the significance of police corruption in the
investigation of Mulligan's murder. It did not establish,
however, that every intersecting investigation was infected. In
Ellis I, 432 Mass. at 764-765, although Ellis had presented
evidence of corrupt practices by detectives involved in his
investigation, he was not entitled to relief in the absence of
evidence suggesting that the detectives engaged in misconduct
"in connection with the investigation of this defendant"
(emphasis added). The same principle controls here.
The defendant failed to establish a link between the
alleged police corruption and the investigation of the murders
of Brown and Kirk. Ellis II involved corrupt officers who had
specific incentive to short circuit the investigation into
Mulligan's murder because Mulligan participated in the same
criminal misconduct they sought to conceal. No comparable
evidence exists here. There is no evidence that Brown or Kirk
were involved in police corruption with Mulligan or with any of
the corrupt officers.
The defendant argues that, if the Mulligan investigation
was "poisoned" by police corruption, then the Brown and Kirk
investigation was necessarily poisoned as well because the
25
investigations "were one in the same and to any extent they were
not, one informed the other." That premise is too broad. The
investigations crossed in important respects, and those
intersections gave plea counsel a basis to pursue discovery for
purposes of a third-party culprit defense. But the nexus
inquiry asks whether misconduct infected the investigation of
this defendant, not whether some of the same detectives worked
both files or the investigations shared witnesses and leads.
See Ruffin, 475 Mass. at 1004 (defendant must "show a nexus
between the government misconduct and the defendant's own case"
[emphasis added]). Corruption in one investigation does not
become corruption in another merely because the investigations
intersected. See Ellis I, 432 Mass. at 765, citing Commonwealth
v. Campiti, 41 Mass. App. Ct. 43, 62–66 (1996) (no error to deny
motion for new trial based on evidence of unrelated police
misconduct).
At most, the defendant speculates that exculpatory evidence
could have been "overlooked" because the Mulligan investigation
was "rushed, biased, or inadequate." That is not enough to
establish a nexus between the alleged misconduct and the
defendant's case. Cf. Commonwealth v. Cotto, 471 Mass. 97, 113
(2015) ("The defendant has offered no supporting evidence to
substantiate this claim, and, in our view, it is wholly
speculative"); Commonwealth v. Nelson, 90 Mass. App. Ct. 594,
26
596 (2016) ("it is not enough simply to show that problems
occurred . . . , however egregious they were; [the defendant]
needed to demonstrate a connection between those problems and
his case").8
3. Voluntariness of defendant's confession. Finally, the
defendant challenges the voluntariness of his confession. He
argues that the corrupt police officers coerced his confession
and that, because the confession influenced his decision to
plead guilty, he should be allowed to withdraw his guilty pleas.
We disagree.
"A voluntary statement is one that is the product of a
rational intellect and a free will, and not induced by physical
or psychological coercion" (quotations and citation omitted).
Commonwealth v. Williams, 486 Mass. 646, 659 (2021). The
defendant bears the initial burden of "produc[ing] evidence
8 Notwithstanding the lack of any nexus, the defendant argues that he should be entitled to a conclusive presumption that egregious police misconduct occurred in his case. We disagree. In Scott, 467 Mass. at 352, we established a conclusive presumption of egregious government misconduct as a global remedy for defendants affected by a State police chemist's misconduct because, under the circumstances there, "it would have been impossible for the defendant[s] to show the requisite nexus between the government misconduct and [their] conviction[s]." Hallinan, 491 Mass. at 747. The same concerns are not present here. The defendant has not argued that it is impossible for him to establish a nexus between the alleged misconduct and his guilty pleas. Nor does the record support such an assertion.
27
tending to show that his statement was involuntary; if he
satisfies this burden, the Commonwealth is required to prove
beyond a reasonable doubt that the statement was voluntarily
made" (citation omitted). Id. at 659–660. See Commonwealth v.
Hart, 493 Mass. 130, 135 (2023), S.C., 497 Mass. 1 (2025) ("A
statement is presumed voluntary until a defendant produces any
evidence showing otherwise"). Although the defendant raises
several challenges to his confession, we focus on his principal
contention that the misconduct evidence of Keeler and Brazil
shows that his confession was "poisoned."9
9 The Commonwealth notes that, in an earlier motion to withdraw his pleas, the defendant argued that plea counsel was ineffective for allowing him to plead guilty without first moving to suppress his confession as involuntary. The motion judge also recognized that the defendant previously had challenged the confession and concluded that his current arguments were waived because "[a] defendant is not entitled to . . . rais[e] new, slightly different bases for the arguments already raised and rejected."
The record shows that the defendant previously raised many of the same arguments regarding the voluntariness of his confession. The parties do not brief whether direct estoppel bars him from raising those arguments again. See generally Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). Even assuming direct estoppel does not apply, the defendant's arguments do not raise a substantial risk of a miscarriage of justice. See Randolph, 438 Mass. at 293–294. Nor do they warrant any further discussion. See Commonwealth v. Sosa, 493 Mass. 104, 124 n.12 (2023), cert. denied, 145 S. Ct. 306 (2024). Many are unsupported by citation to legal authority and therefore do not rise to the level of appellate argument. See Commonwealth v. Cassidy, 470 Mass. 201, 209 n.9 (2014).
28
Evidence that an officer engaged in misconduct in other
matters may provide impeachment material. See Matter of a Grand
Jury Investigation, 485 Mass. 641, 652 (2020). It does not,
without more, establish that a defendant's statement in a
separate case was involuntary. The defendant identifies no
specific act by Keeler, Mahoney, or Brazil that would render his
confession suspect, such as "coercive tactics during the
interrogation." Commonwealth v. Estabrook, 496 Mass. 467, 477
(2025).10 See Commonwealth v. Medina, 485 Mass. 296, 307 (2020)
("There is no indication that police officers employed coercion
or deception to elicit any of his statements"). Instead, he
argues that Keeler's and Brazil's involvement alone tainted the
confession because they engaged in unrelated misconduct. Our
law requires more. Cf. Ellis I, 432 Mass. at 765, citing
Campiti, 41 Mass. App. Ct. at 62–66 (no error to deny motion for
new trial based on evidence of unrelated police misconduct).
10The defendant's argument that his confession was involuntary because Keeler and Mahoney first questioned him during an unrecorded portion of his interrogation rests on speculation. He identifies no conduct by either officer during that unrecorded questioning suggesting that his statements were not "the product of a rational intellect and a free will" (quotations and citation omitted). Commonwealth v. Woodbine, 461 Mass. 720, 729 (2012). See Commonwealth v. DiGiambattista, 442 Mass. 423, 448-449 (2004) (mandating instruction cautioning jury about reliability of unrecorded statements but declining to require recording).
29
Additionally, the content of the confession does not
support the defendant's claim. The defendant described the
sequence of events, his clothing, and details about the crime
scene that only the killer would have known, all of which the
police independently corroborated. Those details support the
motion judge's conclusion that the confession was reliable and
not the product of coercion.
Order denying motion to
vacate guilty pleas and for
a new trial affirmed.