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SJC-11375

COMMONWEALTH vs. OMAY TAVARES.

Suffolk. October 3, 2022. - February 24, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Homicide. Constitutional Law, Assistance of counsel. Practice, 

Criminal, Assistance of counsel, New trial, Capital case. 

Evidence, Exculpatory.

Indictments found and returned in the Superior Court 

Department on April 1, 2010.

A motion for a new trial, filed on January 7, 2019, was 

heard by Beverly J. Cannone, J.

Cailin M. Campbell, Assistant District Attorney, for the 

Commonwealth.

Elizabeth A. Billowitz for the defendant.

BUDD, C.J. On October 17, 2011, the defendant, Omay 

Tavares, was convicted of murder in the first degree in 

connection with the January 7, 2010, shooting death of George 
2

Thompson.1 In 2019, the defendant filed a motion for a new trial 

asserting ineffective assistance based on trial counsel's 

failure to investigate exculpatory evidence provided by the 

Commonwealth.2 After an evidentiary hearing, the motion judge, 

who was not the trial judge, allowed the defendant's motion. 

The matter is now before this court on the Commonwealth's appeal 

from the motion judge's ruling. We affirm. 

Background. We present the relevant factual and procedural 

background as taken from the record, reserving certain details 

for the discussion. 

1. Pretrial. The defendant initially was assigned counsel

from the Committee for Public Counsel Services. However, a 

family friend hired trial counsel to represent the defendant for 

a flat fee of $5,000, learning only after the fact that counsel 

recently had completed a one-year bar suspension for gross 

incompetence resulting in his clients' imprisonment.3 In 

preparation for what would be his first murder trial as lead 

attorney, counsel requested and received court-ordered funds to

1 The defendant also was convicted of unlawful possession of 

a firearm, unlawful carrying of a loaded firearm, and unlawful 

possession of ammunition. 

2 The defendant's direct appeal has been stayed pending 

disposition of his motion for a new trial. 

3 Counsel disclosed his disciplinary history to the 

defendant's family friend only after she confronted him with the 

report of his suspension from the Board of Bar Overseers. 
3

hire experts in the fields of cell site location information

(CSLI) and ballistics, but did not retain an investigator to 

find or speak with witnesses. 

On September 23, 2011, approximately two weeks before the 

trial was scheduled to begin, the prosecutor advised counsel 

that the Boston police department was in possession of a proffer 

from a confidential informant containing information about an 

alleged third-party shooter involved in the victim's murder. 

Counsel was not provided with a redacted copy of the proffer 

until October 4, 2011, one day before trial was to begin.4 

According to the proffer, two individuals, "H.H.," who was 

armed with a Taurus nine millimeter handgun, and "another man,"

went to the victim's apartment intending to rob the victim of 

money and marijuana. When the victim lunged for the gun, he was

shot and killed.5 Trial counsel failed to request a continuance 

to investigate the information contained in the proffer letter

and failed to inform the defendant that it existed. 

2. Trial. The evidence presented to the jury was as 

follows. On the evening of January 7, 2010, a light-skinned 

male, approximately six feet tall, wearing a hooded sweatshirt

4 It is not apparent from the record why there was a delay 

in providing trial counsel with a redacted copy of the proffer. 

5 The proffer did not name the other man but described him 

as having been arrested for the murder. 
4

and skullcap, and identifying himself as "O," came to the 

victim's apartment. A conversation between O and the victim 

escalated to a loud disagreement, and then O pulled a gun from 

his waistband, pointed it at the victim, and fired three shots. 

The medical examiner later determined that the victim died from 

multiple gunshot wounds to the head and torso. The bullets were 

shot from a nine millimeter firearm. 

An investigation revealed that the last call the victim 

received prior to his death came from the defendant's cell 

phone. CSLI data indicated that the defendant's cell phone

activated the cell tower closest to the victim's apartment 

building at approximately the same time as the shooting, and a

latent fingerprint recovered from the exterior doorknob of the 

victim's apartment belonged to the defendant. Investigators 

also recovered a photograph of a hand holding a firearm, taken 

on January 14, 2010, from the defendant's cell phone. Two 

witnesses who saw the shooter at the victim's apartment on the 

night of the killing were shown a photographic array that 

included the defendant's photograph, but neither was able to 

make a positive identification.

While being interviewed by police, the defendant 

acknowledged that he and the victim previously had had a 

disagreement over the price at which the victim had sold the 

defendant some marijuana. After the interview, the defendant 
5

sent a text message to an unknown individual that stated, "Yo, I 

got bagged." During a search of the defendant's home, police 

recovered marijuana and $500 cash, as well as clothing matching 

the description of clothing worn by the individual who came to 

the victim's apartment on the night of the shooting. The murder 

weapon was not recovered. 

At trial, counsel argued that police failed to investigate 

other leads, see Commonwealth v. Bowden, 379 Mass. 472 (1980),

and that the defendant had been misidentified as the shooter.6 

However, he failed to use any of the information contained in 

the proffer that supported these arguments. Indeed, when H.H., 

the man alleged in the proffer to be a third-party culprit,

appeared in court on the first day of jury empanelment and, in 

counsel's presence, was ordered by the judge to be available for 

trial, counsel did not request a continuance to interview him, 

or take any other measures to capitalize on the presence of H.H. 

The defendant was convicted of murder in the first degree on 

theories of deliberate premeditation and extreme atrocity or 

cruelty. 

3. Posttrial. When the defendant obtained new counsel, he 

learned of the proffer letter and moved for a new trial based on 

6 To support the misidentification argument, trial counsel 

called the defendant's mother, girlfriend, and work supervisor 

as witnesses to argue that the defendant's traits and habits 

were inconsistent with the description of the shooter. 
6

ineffective assistance of counsel. Trial counsel submitted an 

affidavit in support of the motion and testified at the 

evidentiary hearing. Although he recalled being made aware of 

the proffer letter containing potential third-party culprit 

evidence, he did not recall investigating it. 

The motion judge concluded that trial counsel provided 

constitutionally ineffective assistance and allowed the 

defendant's motion for a new trial. The Commonwealth timely 

appealed. 

Discussion. 1. Relevant standards for ineffective 

assistance of counsel claim. A judge "may grant a new trial at 

any time if it appears that justice may not have been done." 

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). 

Where a motion for a new trial is based on ineffective 

assistance of counsel, the defendant must show that (1) the 

"behavior of counsel [fell] measurably below that which might be 

expected from an ordinary fallible lawyer" and (2) such failing 

"likely deprived the defendant of an otherwise available, 

substantial ground of defence." Commonwealth v. Saferian, 366 

Mass. 89, 96 (1974). 

We review the judge's decision to grant the defendant a new 

trial for error of law or abuse of discretion. Commonwealth v. 

Lessieur, 488 Mass. 620, 627 (2021). Citing Commonwealth v. 

Diaz Perez, 484 Mass. 69, 74 (2020), the defendant contends that
7

we should employ the substantial likelihood of a miscarriage of 

justice standard pursuant to G. L. c. 278, § 33E (§ 33E). In 

Diaz Perez, we stated that because the case involved murder in 

the first degree, we reviewed the judge's decision to grant a 

motion for a new trial based on an ineffective assistance claim 

under the § 33E standard. Id. However, that was incorrect 

because the defendant's direct appeal had been stayed pending 

the outcome of the appeal from the decision on the new trial 

motion. Id. at 71. As the § 33E standard applies only in 

connection with the plenary review of direct appeals from 

convictions of murder in the first degree, it was not the 

appropriate standard to apply to review the decision to grant a 

new trial alone.7 See Commonwealth v. Alvarez, 433 Mass. 93, 101 

7 We acknowledge that we have not always specifically stated 

that the § 33E standard is applicable when reviewing decisions 

on ineffective assistance of counsel claims only where we are 

deciding direct appeals from convictions of murder in the first 

degree. Compare, e.g., Commonwealth v. Ayala, 481 Mass. 46, 62 

(2018), Commonwealth v. Kolenovic, 478 Mass. 189, 192-193

(2017), Commonwealth v. Laurore, 437 Mass. 65, 72 (2002),

Commonwealth v. Frank, 433 Mass. 185, 187 (2001), and 

Commonwealth v. Coonan, 428 Mass. 823, 826-827 (1999), with 

Commonwealth v. Yat Fung Ng, 489 Mass. 242, 249 (2022), S.C., 

491 Mass. 247 (2023), Commonwealth v. Hung Tan Vo, 427 Mass. 

464, 469 (1998), Commonwealth v. Plant, 417 Mass. 704, 715 

(1994), and Commonwealth v. Wright, 411 Mass. 678, 682 (1992), 

S.C., 469 Mass. 447 (2014). We acknowledge that this has led to 

some confusion. However, we are not aware of any other 

instances beyond Diaz Perez in which we improperly applied the 

§ 33E standard in similar circumstances. We note that the 

defendant was not prejudiced by the error as we affirmed the 

judge's decision to grant a new trial. See Diaz Perez, 484 

Mass. at 70. Moreover, we do not suggest that the case would 
8

n.8 (2000), citing Commonwealth v. Hill, 432 Mass. 704, 710 n.14 

(2000) ("Where the defendant's motion for a new trial was 

allowed and the matter is before us on the Commonwealth's 

appeal, we do not apply the substantial likelihood of a 

miscarriage of justice standard provided by . . . § 33E"). 

2. Application. "The duty to investigate is one of the 

foundations of the effective assistance of counsel, because

counsel's strategic decisions can be adequate only if counsel is 

sufficiently informed about the available options." 

Commonwealth v. Long, 476 Mass. 526, 532 (2017). Where an 

ineffective assistance of counsel claim is brought, "a 

particular decision not to investigate must be directly assessed 

for reasonableness in all the circumstances, applying a heavy 

measure of deference to counsel's judgments." Strickland v. 

Washington, 466 U.S. 668, 691 (1984). That is, although trial 

counsel need not descend into every rabbit hole, he or she "has 

a duty to make reasonable investigations or to make a reasonable 

decision that makes particular investigations unnecessary." Id. 

Here, counsel was informed of a proffer indicating that 

someone other than his client had gone to the victim's home on 

the evening of the killing with an intent to rob the victim and 

have turned out differently under the correct standard: as the 

prevailing party below, the defendant would have benefited from 

the deferential error of law or abuse of discretion standard of 

review. 
9

carrying the same caliber firearm as that used in the killing. 

Qualitatively different from a rumor or neighborhood gossip, a 

proffer is a written legal agreement between the government and 

an individual in which the individual agrees to provide 

information about one or more crimes to the government in 

exchange for the government's promise that any information 

provided by the individual will not be used against him or her 

later in court. See United States v. Lopez, 219 F.3d 343, 345 

n.1 (4th Cir. 2000). Cf. Commonwealth v. Bolduc, 375 Mass. 530, 

540 (1978) (mere speculation that exculpatory facts exist 

insufficient to support ineffective assistance claim). 

Given the significance of the information, counsel was 

required to provide a satisfactory reason for not making use of 

it. At the motion hearing, counsel asserted that he did not 

request a continuance to investigate the proffer because he 

feared his witnesses might not be available at a later date. 

The judge rejected this explanation as a reasonable tactical 

decision, noting that "there [was] no evidence in the record to 

support that premise," and that, at any rate, the defendant's

primary witness "could not provide a confident alibi." The 

judge thus concluded that the decision not to investigate fell 

"measurably below that which might be expected from an ordinary 

fallible lawyer." See Alvarez, 433 Mass. at 101-102 (no 

reasonable tactical judgment in failing to obtain or review 
10

defendant's medical evidence where such investigation would have 

aligned with defense at trial); Commonwealth v. Haggerty, 400 

Mass. 437, 442 (1987) ("Failure to investigate the only defense 

a defendant has, if facts known to or with minimal diligence 

accessible to counsel support that defense, falls beneath the 

level of competency expected"). 

The Commonwealth denies that counsel acted unreasonably, 

arguing that the proffer evidence was more inculpatory than 

exculpatory because it supported the theory that the defendant 

was involved in the shooting. We do not define the term 

"exculpatory" as narrowly as does the Commonwealth here. 

"[E]vidence is exculpatory if it provides some significant aid 

to the defendant's case, whether it [(1)] furnishes 

corroboration of the defendant's story, [(2)] calls into 

question a material, although not indispensable, element of the 

prosecution's version of the events, or [(3)] challenges the 

credibility of a key prosecution witness" (quotation and

citation omitted). Commonwealth v. Pope, 489 Mass. 790, 800 

(2022). 

Here, the proffer evidence had the potential to aid the 

defendant in each of these ways. It suggested that H.H. was the 

shooter, thereby corroborating the mistaken identity claim; it 

undercut the Commonwealth's theory that the defendant was the 

sole shooter in the victim's murder; and it challenged the 
11

credibility of the two witnesses who reported that only one man 

came to the victim's home on the night of the shooting. 

The judge additionally concluded that the second prong of 

the Saferian test was met, as the proffer evidence would have 

bolstered the defendant's Bowden defense by suggesting that the 

Commonwealth failed to investigate the possibility that someone 

other than the defendant committed the crime,8 and by supporting 

a new and compelling third-party culprit defense. See

Commonwealth v. Alcide, 472 Mass. 150, 161-163 (2015) (trial 

counsel's failure to introduce significant discovery that 

supported defendant's third-party culprit defense constituted 

ineffective assistance); Commonwealth v. Phinney, 446 Mass. 155, 

162-166 (2006), S.C., 448 Mass. 621 (2007) (trial counsel's 

failure to read and use exculpatory police reports constituted 

ineffective assistance). 

On this point, the Commonwealth contends that even if the 

proffer evidence had been used, it would have supported another 

theory under which the jury could have chosen to convict the 

defendant: felony-murder. This argument is unavailing. The 

Commonwealth's theory at trial was that the defendant was the 

8 According to the judge's memorandum of decision, at the 

time of the murder both H.H. and the confidential informant were 

members of a gang that "had frequently been tipped off by 

members of the [Boston police department] as to its and 

[F]ederal investigations into [the gang's] activities." 
12

lone shooter. The prosecutor neither presented evidence of a 

joint venture, nor requested instructions on felony-murder. 

Thus, what otherwise might have happened if the case had been 

tried differently is purely speculative.9 Cf. Commonwealth v. 

Quiles, 488 Mass. 298, 306-307 (2021), cert. denied, 142 S. Ct. 

1237 (2022) (conviction upheld where jury were instructed on and 

had clear opportunity to consider alternate theory of felonymurder even though defendant was not charged with predicate 

felony). 

The judge noted that the Commonwealth's evidence against 

the defendant was "strong," but "not overwhelming." Where, as 

here, use of the proffer evidence could have raised a reasonable 

doubt as to whether the defendant murdered the victim, we cannot 

say that the judge erred or abused her discretion in concluding 

that counsel's assistance constitutionally was ineffective. 

Order allowing motion for a

 new trial affirmed. 

9 The Commonwealth also argues that the proffer would have 

been inadmissible at trial because it contains multiple layers 

of hearsay. Regardless of its admissibility, on which we do not 

opine, the proffer contained evidence that the defendant could 

have used in the preparation of his defense.