SUPREME JUDICIAL COURT

For the

COMMONWEALTH OF MASSACHUSETTS

No. SJ-2013-0031

Bristol County

Nos. 96-106

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COMMONWEALTH OF MASSACHUSETTS

vs.

BRIAN PEIXOTO

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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.”).

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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

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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.

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

has demonstrated that he was unaware of his right to a

public trial during jury selection until long after his

trial and direct appeal. See also Breese v. Commonwealth,

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).

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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.

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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.,

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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. 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).

Readily distinguishable is Commonwealth v. Dyer, 460

Mass. 728, 735-737 (2011), relied upon by the trial judge

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(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,

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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.

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(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

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“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

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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

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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. 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.

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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 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)

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(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

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