United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 22-1924
`
`PHILLIP AYALA,
`
`Petitioner, Appellee,
`
`v.
`
`NELSON ALVES, Superintendent, MCI-Norfolk,
`
`Respondent, Appellant.
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Mark G. Mastroianni, U.S. District Judge]
`
`
`
`Before
`
`Montecalvo, Selya, and Lynch, Circuit Judges.
`
`
`
`
`
`
`
`
`
`Gabriel Thornton, Assistant Attorney General, Criminal
`Bureau, with whom Andrea Joy Campbell, Attorney General, was on
`brief, for appellant.
`Janet Heatherwick Pumphrey for appellee.
`
`
`
`
`October 25, 2023
`
`
`
`
`
`
`For the First Circuit
`
`
`
`
`No. 22-1924
`
`PHILLIP AYALA,
`
`Petitioner, Appellee,
`
`v.
`
`NELSON ALVES, Superintendent, MCI-Norfolk,
`
`Respondent, Appellant.
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Mark G. Mastroianni, U.S. District Judge]
`
`
`
`Before
`
`Montecalvo, Selya, and Lynch, Circuit Judges.
`
`
`
`
`
`
`
`
`
`Gabriel Thornton, Assistant Attorney General, Criminal
`Bureau, with whom Andrea Joy Campbell, Attorney General, was on
`brief, for appellant.
`Janet Heatherwick Pumphrey for appellee.
`
`
`
`
`October 25, 2023
`
`
`
`
`
`
`
`LYNCH, Circuit Judge. Under the Antiterrorism and
`
`Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-
`
`132, 110 Stat. 1214 (codified as amended in scattered sections of
`
`the U.S. Code), and Supreme Court precedent, federal habeas courts
`
`must give deference to a state court's findings of fact and
`
`application of law. White v. Woodall, 572 U.S. 415, 419-20 (2014).
`
`In addition, when a habeas petitioner asserts a claim of
`
`ineffective assistance of counsel, federal habeas corpus review
`
`must be doubly deferential. Burt v. Titlow, 571 U.S. 12, 15
`
`(2013).
`
`Petitioner Phillip Ayala was convicted, in 2007 after a
`
`jury trial, of first-degree murder, unlawful possession of a
`
`firearm, and unlawful possession of ammunition. His conviction
`
`and the denial by the trial court of his motion for a new trial
`
`were affirmed by the Massachusetts Supreme Judicial Court ("SJC")
`
`in a carefully reasoned, unanimous, nineteen-page decision.
`
`Commonwealth v. Ayala ("Ayala"), 112 N.E.3d 239, 241-42 (Mass.
`
`2018).
`
`A Massachusetts federal district court nonetheless
`
`granted Ayala's petition for a federal writ of habeas corpus on
`
`his argument that his state court trial counsel was ineffective.
`
`See Ayala v. Medeiros ("Medeiros"), 638 F. Supp. 3d 38, 46 (D.
`
`Mass. 2022). Arguing on appeal that the grant of Ayala's petition
`
`was improper, the Commonwealth of Massachusetts seeks to vacate
`
`- 2 -
`
`
`
`that order. We vacate, as the district court erred in applying
`
`the AEDPA standard. Under that standard Ayala's petition must be
`
`denied.1
`
`I.
`
`Facts
`
`A.
`The Underlying Crimes of First-Degree Murder, Unlawful
`Possession of a Firearm, and Unlawful Possession of
`Ammunition
`
`On this habeas review of an ineffective assistance of
`
`counsel claim, "[w]e take the facts largely as recounted by the
`
`[SJC] decision affirming [Ayala's] conviction, 'supplemented with
`
`other record facts consistent with the SJC's findings.'" Field v.
`
`Hallett, 37 F.4th 8, 12 (1st Cir. 2022) (second alteration in
`
`original) (quoting Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st
`
`Cir. 2009)). The SJC found the facts as follows:
`
`In the early morning of June 10, 2007, Robert
`Perez and his friend, Clive Ramkissoon,
`attended a house party held on the second
`floor of a house in Springfield. Upon
`arriving just before 2 A.M., Perez and
`Ramkissoon encountered a bouncer on the first
`floor at the bottom of the stairwell that led
`to the second floor. The first-floor bouncer
`was posted there to search guests before
`letting them upstairs to the party. After
`being searched, the two men went upstairs to
`the party. As there were not yet many people
`at the party, Perez returned to the first
`floor and began speaking with the first-floor
`bouncer in the entryway of the stairwell.
`
`Shortly thereafter, as Perez was speaking with
`the first-floor bouncer, the defendant arrived
`
`
`1
`We do not consider Ayala's other arguments, which are
`not before us on appeal.
`
`- 3 -
`
`
`
`at the party. As she had done with Perez and
`Ramkissoon, the bouncer attempted to pat frisk
`the defendant before allowing him to enter.
`The defendant refused. After a brief argument
`related to the search, the defendant
`aggressively pushed past the bouncer and
`climbed the stairs to the second floor. A
`second bouncer intercepted the defendant on
`the stairs and prevented him from entering the
`party without having first been pat frisked.
`The defendant argued with the bouncer and,
`after yelling and screaming at him, was
`escorted out of the house. As the defendant
`was descending the staircase to leave, and
`just steps away from Perez, the defendant
`threatened to "come back" and "light the place
`up." [FN 2] After leaving the house briefly,
`the defendant returned and kicked in the
`first-floor door. [FN 3]
`
`[FN 2] At trial, a witness who had
`attended the party testified that the
`defendant was upset because he felt that
`hosting a party at the house was
`disrespectful to his niece, who had
`recently been killed at a nearby
`location.
`
`[FN 3] The door was kicked in with such
`force that police were later able to take
`a footprint impression from the door and
`confirm that it matched the defendant's
`shoe.
`
`Throughout this interaction inside the house,
`Perez had an opportunity to observe the
`defendant closely for several minutes. [FN 4]
`Concerned by the defendant's threats and
`behavior, Perez returned upstairs to find
`Ramkissoon. The two men walked onto the
`second-floor porch to "assess the situation"
`and saw the defendant pacing back and forth on
`the street in front of the house. Rather than
`leave with the defendant still outside, given
`his recent threat to "light the place up,"
`Perez and Ramkissoon decided to wait on the
`porch for a few minutes. After the defendant
`
`- 4 -
`
`
`
`moved out of sight, Perez, Ramkissoon, and a
`female friend decided to leave the party.
`
`[FN 4] Robert Perez's account of the
`defendant's actions was substantially
`corroborated at trial by the testimony of
`the first-floor bouncer.
`
`After leaving the house, Ramkissoon and the
`woman began walking across the road, while
`Perez, who had stopped to tie his shoe,
`trailed slightly behind. As they were
`crossing the road, the woman stopped in the
`middle of the road directly in front of the
`house and began dancing. Perez walked over to
`where the woman was dancing while Ramkissoon
`kept moving down the road, to the left of the
`house, toward the area where his vehicle was
`parked. As Perez approached the woman to
`guide her out of the way of oncoming traffic,
`he heard a gunshot and saw a muzzle flash
`appear near a street light located on the
`sidewalk in front of a property adjacent to
`the house. [FN 5] Perez saw the defendant
`holding a firearm and testified that he was
`able to identify the shooter as the defendant
`because the muzzle flash from the gun
`illuminated the shooter's face. He then
`turned and ran away from the shooting as
`several more gunshots rang out. Perez, who
`had previously served in the United States
`Army, testified that he heard between five and
`seven shots, which he recognized as .22
`caliber bullets based on his military
`experience.
`
`[FN 5] Perez testified that he saw the
`muzzle flash came from "the sidewalk area
`under the light," but later noted that he
`could not be certain whether the street
`light was on at the time of the shooting.
`
`Perez soon circled back to where Ramkissoon's
`vehicle was parked and discovered Ramkissoon
`face down on the street. Perez performed
`rescue breathing on Ramkissoon and telephoned
`the police. Police officers arrived at the
`scene by approximately 3 A.M. It was later
`
`- 5 -
`
`
`
`determined that Ramkissoon died from multiple
`gunshot wounds. [FN 6] Perez was soon brought
`to the Springfield police station, where he
`gave a statement recounting the events of that
`morning. At the station, Perez identified the
`defendant from a set of photographs shown to
`him by police, stating that he recognized the
`defendant's photograph as the "same person who
`he had seen in the stairwell not wanting to be
`pat frisked by the bouncer there, and then
`firing the gun outside in the street at the
`victim."
`
`[FN 6] The police recovered five spent
`shell casings from the scene of the
`shooting. The medical examiner also
`recovered two spent projectiles from
`Ramkissoon's body. At trial, a police
`officer with special knowledge of
`ballistics testified that he performed a
`microscopic examination of the shell
`casings and the spent projectiles. Based
`on the examination, he concluded that all
`five casings came from a .22 caliber gun.
`He
`further
`concluded
`that
`both
`projectiles extracted from Ramkissoon's
`body came from the same weapon. The
`police never located the gun that was
`used to kill Ramkissoon.
`
`Ayala, 112 N.E.3d at 242-43 (cleaned up).
`
`B.
`
`Ayala's State Criminal Trial
`
`In January 2008 as part of discovery from the
`
`Commonwealth in his criminal prosecution, counsel for Ayala
`
`received a copy of a letter from the Northampton VA Medical Center
`
`which stated that Perez, the Commonwealth's lead witness, "ha[d]
`
`been in treatment for Post Traumatic Stress Disorder ["PTSD"] at
`
`th[at] VA Medical Center since 4/14/2000 . . . with Dr. Kenneth
`
`Lenchitz, PhD., . . . Nina A. Pinger, APRN, BC, CNS, and Lillian
`
`- 6 -
`
`
`
`R. Struckus, MSW, LICSW . . . ." A list was attached of all of
`
`Perez's appointments at the VA Medical Center from April 14, 2000,
`
`to January 18, 2008, which defense counsel described as totaling
`
`161 appointments.2
`
`At trial two key eyewitnesses testified: Natasha
`
`Frazier, the D.J. at the party who said Ayala could not have been
`
`the shooter, and Perez, who identified Ayala as the shooter. The
`
`defense called Frazier as its eyewitness. As the judge who heard
`
`Ayala's 2014 motion for a new trial later found, the defense
`
`counsel's "primary trial strategy" was to secure and support
`
`Frazier's testimony that Ayala was not in the area when the
`
`shooting occurred. As stated by the SJC:
`
`Shortly before the trial was originally
`scheduled to begin in July 2008, the
`Commonwealth informed defense counsel that it
`had recently learned that a witness likely to
`be called by the defense, [Frazier], was a
`confidential informant for a Federal gang task
`force operating in Springfield. As a result
`of this new information, the trial was
`continued several times until over one year
`later in August 2009.
`
`The Commonwealth's disclosure resulted in
`multiple motions by the defendant to obtain
`Federal records detailing [Frazier]'s status
`as a confidential informant (informant
`records) and to compel the testimony of
`Federal agents regarding the same through
`State court proceedings. The defendant argued
`
`
`2
`As noted by the SJC, at trial Perez admitted that this
`document established that he had "161 appointments with mental
`health experts at the Veterans Administration." Ayala, 112 N.E.3d
`at 255.
`
`- 7 -
`
`
`
`that the information was material to his
`defense because it was necessary to
`demonstrate [Frazier]'s credibility as a
`witness, which the defendant contended was
`exculpatory information. At various times,
`the defendant was informed that a successful
`pursuit of this information would require that
`he comply with the procedure set forth by
`Federal regulations. The federally mandated
`procedure required the defendant to submit a
`written request for information describing the
`informant records and the subject matter of
`the testimony sought. Federal authorities
`would then review the sought-after information
`for privilege, confidentiality, and the
`likelihood
`that
`its
`disclosure
`would
`compromise ongoing investigations. After this
`review, the Federal authorities would report
`back to the defendant and either disclose the
`requested information or explain why it was
`continuing to be withheld. Despite being made
`aware of the Federal procedure, the defendant
`refused
`to
`comply
`and
`continued
`to
`unsuccessfully request that the trial court
`judge compel Federal authorities to disclose
`this information.
`
`During the time period of the continuance, and
`while engaging in the pursuit of the federally
`held information, the defense had the
`opportunity to depose [Frazier]. At her
`deposition, [Frazier] testified to her status
`as a confidential informant for the Federal
`Bureau of Investigation (FBI), including the
`nature of her work and compensation. She also
`testified to her observations on the morning
`of the shooting, which supported the
`defendant's theory that he was not present at
`the scene at the time of the shooting.
`Specifically, [Frazier] testified that she
`witnessed the defendant driving away from the
`scene before the shooting took place, and
`instead implicated another individual whom she
`witnessed fleeing the scene. The deposition
`also revealed that [Frazier] had telephoned a
`Federal agent on or about the morning of the
`shooting and described what had occurred.
`
`- 8 -
`
`
`
`On the eve of trial, the defendant filed a
`motion to dismiss the case based on the
`Commonwealth's
`failure
`to
`turn
`over
`[Frazier]'s informant records. The motion was
`eventually denied. The defendant then sought
`once again to compel the testimony of a member
`of the Federal gang task force, but the
`subpoena was quashed. Subpoenas for several
`other law enforcement officers and an
`assistant United States attorney were
`similarly quashed. After these subpoenas had
`been quashed and the trial was set to begin,
`at the suggestion of the trial judge, the
`defendant finally submitted a request to
`Federal authorities for the informant records
`in compliance with the governing Federal
`regulations described above.
`
`Id. at 246-48 (footnotes omitted).
`
`On August 12, 2009, before trial began, defense counsel
`
`moved for a subpoena for all of Perez's treatment records beyond
`
`what he had received in January 2008 from the VA Medical Center.
`
`The order, which the court issued on August 13, 2009, mistakenly
`
`read:
`
`It is hereby ordered that KEEPER OF THE
`RECORDS at Veteran's Hospital, 421 North Main
`Street, Leeds, MA, release to the SUPERIOR
`COURT CLERK'S OFFICE, any and all medical
`records regarding the treatment of Robert
`Perez, treated on or about 2009. This order
`does not include psychiatric, psychological,
`or social worker records.
`
`(Emphasis added.) The court corrected the error and issued a
`
`revised order on August 14, 2009, which read:
`
`It is hereby ordered that KEEPER OF THE
`RECORDS at Veteran's Hospital, 421 North Main
`Street, Leeds, MA, release to the SUPERIOR
`COURT CLERK'S OFFICE, any and all medical,
`
`- 9 -
`
`
`
`psychiatric, psychological, or social worker
`records regarding the treatment of Robert
`Perez, treated on or about 2009.
`
`Trial was scheduled to begin on the morning of August
`
`17, 2009. That morning, defense counsel moved for a continuance
`
`because he had not yet received a response to his request for
`
`Frazier's confidential informant records. As to Perez, defense
`
`counsel told the court he did not know "how [he was] supposed to
`
`open if [he] d[id]n't know what to say about the . . . percipient
`
`witness" and that "there's an issue of competence relative to this
`
`witness," a reference to Perez. Both counsel then made a joint
`
`motion "to have [the court] order the records be sent overnight,"
`
`which the court allowed. The court told the parties they would
`
`"have the records at the very latest tomorrow morning. . . . You
`
`can review the records. If an issue stares this Court in the face
`
`regarding mental competency right up to the time [Perez] is called
`
`to testify, then I'll take the appropriate steps." The court
`
`denied a continuance.
`
`Trial began later that day, August 17, 2009, with the
`
`jury, judge, and parties first traveling to the site of the
`
`shooting for "a view of the subject premises" before opening
`
`statements. After that view the court dismissed the jury for lunch
`
`and told counsel that "there[] [was] a courier . . . in the process
`
`of returning from the [VA Medical Center] with the necessary
`
`documents."
`
`- 10 -
`
`
`
`The prosecutor told the court she expected to call three
`
`witnesses that afternoon -- first, Sergeant David Martin of the
`
`Springfield Police Department; second, Dr. Joann Richmond, a state
`
`forensic pathologist; and third, Perez. Defense counsel objected
`
`to Perez being called that day because he "ha[d]n't seen the
`
`records." The court said it would end the day's proceedings after
`
`Dr. Richmond's testimony so the parties could review the records
`
`and the court could "have ready, if necessary, someone to conduct
`
`an examination" of Perez's competency.
`
`The prosecutor then gave the Commonwealth's opening
`
`statement. As part of that statement she told the jury that
`
`Mr. Perez and Mr. Ramkissoon were on their way
`to drop Mr. Perez off at his home in his
`apartment in Springfield when they encountered
`a young lady . . . who appeared to be going to
`some type of a party.
`
`. . . .
`
`They gave her a ride [and] . . . parked on
`Bristol Street. You all had the opportunity
`to see Bristol Street where it[]s relationship
`is to this house that you went in.
`
`. . . .
`
`They entered into the party. They were there
`for a period of time. Then I expect that
`you'll hear at some point the defendant, Mr.
`Ayala, arrived at the party, . . . and there
`was an issue about his coming in or being
`agreeable to come in.
`
`As a result, he was asked to leave. You'll
`then hear . . . that Mr. Ayala came back and
`he kicked in that door.
`
`- 11 -
`
`
`
`. . . .
`
`Now, all around this time Mr. Perez is
`deciding it's probably not a good idea for
`them to stay at this party. They are getting
`ready, they are leaving. I believe the
`testimony is going to be that Mr. Perez and
`Mr. Ramkissoon and [the young woman] were
`walking out of the party.
`
`. . . .
`
`I expect Mr. Perez will tell you that he heard
`shots . . . and he looked. . . . He stood
`there in the middle of the road where the
`double yellow line is. Then he saw a man with
`a gun firing, and he ran and he looked at the
`guy.
`
`. . . .
`
`Mr. Perez will tell you that when he looked up
`and he saw the man with the gun, he looked at
`him. It was the same guy who caused the
`commotion at the party. It was the same guy
`who kicked in the door. It was the same guy.
`
`. . . .
`
`Now Mr. Perez, I'm sure you're going to hear,
`as a result of military service to his country
`suffers from posttraumatic stress. There are
`issues that he's had. He was on probation.
`He was violated. He's been incarcerated.
`You're going to hear a lot about him and his
`tale of woe.
`
`But what you're going to hear is that when he
`turned to see the gunshots in the middle of
`that road . . . it was the same guy that caused
`the commotion at the party. The same guy that
`was kick[ed] out. The same guy that kicked in
`the door.
`
`The prosecutor did not mention Frazier or her testimony in the
`
`Commonwealth's opening statement.
`
`- 12 -
`
`
`
`Defense counsel told the jury his opening statement was
`
`his "opportunity to tell you what the defense believes the evidence
`
`will be in this particular case." Defense counsel described the
`
`expected testimony of Frazier, a
`
`paid confidential informant . . . [who was at
`the party to] report confidential information
`of gang activities, on guns, and on drugs at
`that particular location to her handlers.
`
`. . . .
`
`[Frazier] actually saw Mr. Ayala here, who she
`knew, come in and . . . create a ruckus . . .
`because of the fact that he felt he was being
`disrespected, that he was known in the
`community, that he had a very close relative
`. . . [who] was shot at the location right at
`the house next door . . . . As a result of
`him being disrespected, he kicked in the door.
`
`Defense counsel stated that
`
`[t]he evidence w[ould] establish that when the
`shooting occurred, the confidential paid
`federal informant was standing on the porch
`that you visited today and that she saw what
`took place downstairs where the shooting took
`place . . . [and that] upon being debriefed of
`the situation [by her handlers] said that she
`knew that Mr. Ayala could not have done this
`particular crime because she saw him leaving
`and he was not in the area of where the crime
`took place and he was not the shooter. And
`that she saw a particular automobile . . .
`that exited the area contemporaneously, or
`right after, the shooting took place.
`
`As for Perez, defense counsel stated that the
`
`prosecution had
`
`pointed out to you that Mr. Perez had service
`in the armed services, that he suffers from
`PTSD, and I believe the evidence will
`
`- 13 -
`
`
`
`establish for you that he's presently residing
`at [a VA Medical Center] in Northampton.
`
`I believe the evidence will further establish
`for you that at the time of this particular
`incident when he gave the police a statement
`relative to Mr. Ayala's participation in this
`particular event, he had outstanding charges
`pending against him relative to unarmed
`robbery
`and
`that
`eventually
`he
`was
`incarcerated relative to violating the terms
`of probation. That during the time that he
`was incarcerated at the state facilities here
`in Massachusetts, he wrote certain letters to
`the office of the district attorney, and I
`believe that the evidence will establish for
`you that he sought to have certain
`considerations relative to the testimony that
`he intended to give in this particular case.
`
`Thus defense counsel established as a major theme that Perez, after
`
`being in the armed services, "suffers [present tense] from PTSD"
`
`and resided at the VA Medical Center in Northampton.
`
`The prosecutor presented two witnesses on August 17,
`
`2009: Sergeant Martin, an officer who responded to the scene that
`
`morning, and Dr. Richmond, who testified that Ramkissoon died as
`
`a result of his gunshot wounds. After Dr. Richmond's testimony,
`
`at sidebar, the court told counsel that the clerk had received
`
`Perez's records from the VA Medical Center and that counsel could
`
`review them in the clerk's office. The court then adjourned at
`
`3:39 pm with plans to return the following day, August 18, 2009.
`
`Defense counsel reviewed the 38-page set of records that
`
`arrived on August 17, 2009. As it turned out, this 38-page set of
`
`records was an incomplete set of Perez's VA Medical Center records.
`
`- 14 -
`
`
`
`This 38-page set, which defense counsel received and reviewed,
`
`reinforced that as of July 30, 2009, Perez had been diagnosed with
`
`"Posttraumatic Stress Disorder"; "Bipolar affective disorder,
`
`manic, mild degree"; and "Generalized Anxiety Disorder", and that,
`
`as of that date, he was taking three medications to treat those
`
`conditions. The 38-page set, however, did not include the notes
`
`taken during Perez's counseling sessions with the VA Medical
`
`Center.
`
`On August 18, 2009, defense counsel filed motions for a
`
`competency evaluation of Perez and for payment authorization for
`
`the defense to retain a psychological expert, Dr. Ronald Ebert,
`
`both to consult on defense counsel's cross-examination of Perez
`
`and then to testify for the defense. When trial resumed that
`
`morning, defense counsel's motions were the first point of
`
`discussion. With respect to Perez's competency, defense counsel
`
`told the court that Dr. Ebert would testify that "a person that is
`
`manic obviously is wired high and if he's not on his medications,
`
`obviously [Dr. Ebert] doesn't believe [Perez] would be competent
`
`to testify."
`
`The court ordered a competency evaluation of Perez by an
`
`independent psychologist and reserved judgment on the defense's
`
`motion for payment for an expert psychologist until after that
`
`evaluation. The court specifically asked the doctor, Dr. Andrew
`
`- 15 -
`
`
`
`Bourke,3 to examine both "today whether [Perez] is competent to
`
`testify based on whatever treatment he . . . is receiving at [a VA
`
`Medical Center], but also what medication or treatment he may or
`
`may not have been receiving on June 10, 2007[.]"
`
`Dr. Bourke conducted a competency evaluation of Perez
`
`that day. Dr. Bourke also "review[ed] the . . . [38-page set of]
`
`records." As to Perez's competence to testify, Dr. Bourke
`
`concluded that Perez was "able to provide a recollection of the
`
`alleged incident that [was] very close to what [the doctor] was
`
`able to review . . . [from] previous testimony [Perez] had given."
`
`Dr. Bourke also concluded that Perez was "entirely alert and
`
`oriented," "demonstrated intact memory functioning," and "[t]here
`
`were no symptoms of major mental illness evident during [the
`
`doctor's] interview with [Perez]." The doctor also "didn't see
`
`any evidence [that day] of symptoms of bipolar disorder . . . ."
`
`As to Perez's competence to perceive the shooter on June 10, 2007,
`
`Dr. Bourke testified that Perez "told [him] that at that time he
`
`was not on any medications . . . and he was feeling, prior to the
`
`incident, okay. He was with friends and he wasn't suffering from
`
`symptoms of a mental illness at that time." As the SJC noted,
`
`"[f]ollowing the examination, Perez was declared competent to
`
`testify." Id. at 244 n.7.
`
`
`3
`No party has raised any issue as to Dr. Bourke's
`impartiality or qualifications at any stage in these proceedings.
`
`- 16 -
`
`
`
`Before the prosecution offered Perez's direct testimony,
`
`defense counsel repeated his request that Dr. Ebert at least have
`
`"an[] opportunity to advise [defense counsel] as to how [he] should
`
`conduct [his] cross-examination [of Perez] relative to well-
`
`defined mental illness that is verified on the record." Defense
`
`counsel also described the testimony Dr. Ebert would offer if the
`
`court authorized payment, specifically "that anyone who suffered
`
`from a bipolar situation that was manic in its nature, that was
`
`not on medication, would be adversely affected in their ability to
`
`either perceive or encounter and recounter events that would
`
`occur." In response, the court asked how "the psychiatrist,
`
`without being totally speculative, [was] going to be able to
`
`testify how [Perez] acted on that night when [the doctor] wasn't
`
`there?" The court also stated,
`
`I can understand why you're asking to [consult
`an expert] so you might be able to cross-
`examine, but I don't think it r[]ises to the
`level of just bringing in an expert now and
`testifying as to what he would opine regarding
`how he conducted himself or what his
`percipient qualities were on that particular
`day if there's no foundation laid that he was
`suffering from that disease on that day.
`
`The court reserved judgment on counsel's motion for payment for an
`
`expert until after Perez's direct testimony, but ultimately
`
`granted authorization for payment related to consultation on
`
`defense counsel's cross-examination of Perez.
`
`- 17 -
`
`
`
`The prosecution presented Perez's direct testimony that
`
`afternoon, August 18, 2009. The SJC's description of Perez's
`
`testimony is supported by the record. Specifically with respect
`
`to his identification of Ayala as the shooter, Perez testified as
`
`follows:
`
`Q. . . . [Y]ou looked towards where the shots
`were coming from; correct?
`
`A. Right.
`
`Q. And could you see a firearm?
`
`A. Yes.
`
`Q. And could you see someone with a firearm?
`
`A. Yes.
`
`. . . .
`
`Q. . . . So when you looked back, the shots
`were coming from -- did you see the person
`holding a gun?
`
`A. Yes.
`
`. . . .
`
`Q. . . . Did you recognize the shooter?
`
`A. Yes.
`
`Q. Who did you recognize the shooter as?
`
`A. Mr. Phillip Ayala, the person who came and
`said he would light the party up.
`
`The court then dismissed the jury for the day and
`
`addressed defense counsel's pending motion for funds for an expert
`
`psychologist. The court first stated that it "discerned from [its]
`
`observations and . . . hearing [of Perez's direct testimony] that
`
`- 18 -
`
`
`
`there was no[t] one scintilla of vagueness, lack of clarity,
`
`anything incomprehensible or anything other than detailed
`
`testimony . . . ." For that reason the court told defense counsel
`
`it "w[ould] not be allowing an expert to testify in the v[e]in
`
`requested by the defense" unless "something countervailing and
`
`compelling in cross-examination emerge[d]." (Emphasis added.)
`
`The court did, however, "allow the motion for funds for [defense
`
`counsel] . . . to consult [an expert psychologist] . . . prior to
`
`commencement of cross-examination [scheduled to take place the
`
`next day] . . . and for those purposes only." Defense counsel did
`
`in fact consult with Dr. Ebert, who also had access to the 38-page
`
`set of records, to prepare his cross.
`
`As to the cross-examination of Perez the next morning
`
`after defense counsel had consulted with his expert, the SJC found:
`
`The reliability of Perez's identification was
`vigorously challenged by defense counsel on
`cross-examination. The defense confronted
`Perez on his ability to accurately identify
`the shooter under the lighting conditions at
`the time of the shooting, his recollection of
`certain events that morning, and the
`discrepancies between Perez's statement to
`police on the morning of the shooting and his
`trial testimony regarding the defendant's
`height and clothing. Additionally, the
`defense presented evidence showing that Perez
`suffered
`from
`bipolar
`disorder
`and
`posttraumatic stress disorder (PTSD), the
`latter being a result of his military service.
`Specifically, evidence showed that he sought
`psychiatric counselling and used marijuana to
`cope with the effects of his diagnoses. There
`was no evidence, however, that Perez was
`
`- 19 -
`
`
`
`either suffering the effects of these
`diagnoses or under the influence of marijuana
`at the time of the shooting.
`
`Id. at 243-44 (footnotes omitted). Defense counsel drew admissions
`
`from Perez that he "went from unscheduled [as-needed counseling]
`
`appointments to [regularly] scheduled [counseling] appointments"
`
`after the shooting, "was hospitalized" for his mental health in
`
`the fall of 2007, "start[ed] taking . . . [prescription] drugs" to
`
`treat his mental health conditions "[a]fter October of 2007," was
`
`"diagnosed with borderline personality disorder and also bipolar
`
`disorder, mild manic after 2007," and "had a counseling session on
`
`June 11th" of 2007, the day after the shooting. Perez stated the
`
`effect of his PTSD on him "was minimal. It's just basically . . .
`
`remembering a bad time, a bad dream, a bad situation . . . ."
`
`Perez stated that his "appointments weren't necessarily all based
`
`on PTSD" and that he also "went through a divorce" between 2000
`
`and 2008 which caused him emotional distress for which he also
`
`sought counseling.
`
`The prosecution then offered the testimony of four more
`
`witnesses: Detective Lieutenant Kenneth F. Martin of the
`
`Massachusetts State Police who specialized in footwear impression
`
`analysis and identification; Equilla Haines, the first-floor
`
`bouncer the night of the shooting; Sergeant Mark Rolland of the
`
`Springfield Police Department, who had responded to the scene of
`
`the shooting that morning; and Sergeant John Crane, a ballistician
`
`- 20 -
`
`
`
`with the Massachusetts State Police who analyzed the shell casings
`
`and projectiles recovered from the shooting.
`
`The prosecution rested after Sergeant Crane's testimony.
`
`Defense counsel then moved for a directed verdict because "the
`
`defendant was never identified" in court, which motion the court
`
`denied.
`
`The defense called its witness, Natasha Frazier. The
`
`SJC found and the record supports that
`
`the defense called a sole witness, [Natasha
`Frazier], who was the disc jockey at the
`party. [Frazier] testified that she knew the
`defendant and looked up to him, and had seen
`him multiple times that morning. [Frazier]
`also testified that at one point, she was on
`the second-floor porch and saw the defendant
`emotional and upset outside after he had been
`kicked out of the house. She and others
`attempted to comfort the defendant and
`suggested that he go home. She testified to
`then witnessing the defendant leave the party
`and drive away. [Frazier] was adamant that
`the defendant left approximately thirty to
`forty-five minutes before the shooting,
`stating that he was "gone a long time before
`the shooting even went down." In response to
`further questioning on her certainty that the
`defendant was not at the scene at the time of
`the shooting, she testified, "He was not
`there. Put my kids on it." Although she did
`not witness the shooting, she testified that
`she observed a red Taurus motor vehicle
`"skidding off" from the scene immediately
`after the shooting.
`
`- 21 -
`
`
`
`Id. at 244 (footnote omitted). Frazier's testimony stretched into
`
`August 21, 2009.4
`
`After Frazier's testimony, d
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