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Date: 10-19-2015

Case Style: Santana v. Commonwealth

Case Number: 14-P-923

Judge: Mary T. Sullivan

Court: Massachusetts Supreme Judicial Court

Plaintiff's Attorney: Jeffrey T. Collins

Defendant's Attorney: John J. Hightower for Appellant

Description: After a jury trial in Superior Court, Angel
Santana was convicted of trafficking cocaine in the amount of
fourteen to less than twenty-eight grams, in violation of G. L.
c. 94C, 32E(b), and trafficking in cocaine within 1,000 feet
of a school zone, in violation of G. L. c. 94C, 32J. This
court vacated the judgments, concluding that the evidence was
insufficient to establish that Santana constructively possessed
the cocaine.1 Santana subsequently filed a complaint pursuant to
G. L. c. 258D, the erroneous conviction statute. After
discovery, the Commonwealth moved for judgment on the pleadings,
contending that Santana failed to meet the threshold requirement
of eligibility to pursue relief under the erroneous conviction
statute. In a comprehensive and well-reasoned memorandum, the
motion judge denied the motion, concluding that the lack of
evidence of constructive possession tended to establish actual
innocence of the underlying crime, and that Santana was
therefore eligible for relief under the statute.2 The
Commonwealth appeals from the motion judge's order denying its
motion for reconsideration under the doctrine of present
execution.3 See Irwin v. Commonwealth, 465 Mass. 834, 835
(2013). We affirm.
1 See Commonwealth v. Santana, 77 Mass. App. Ct. 1118 (2010).
2 Although the memorandum was issued without the benefit of Renaud v. Commonwealth, 471 Mass. 315 (2015), discussed infra, the reasoning of the motion judge closely followed that of Renaud.
3 The notice of appeal mentions only the motion for reconsideration, and does not contain any language that the Commonwealth is appealing from the original order. As a technical matter, the original order is not before us. See

Discussion. The class of claimants eligible for relief
under the erroneous conviction statute includes only those "who
have been granted judicial relief by a state court of competent
jurisdiction, on grounds which tend to establish the innocence
of the individual." G. L. c. 258D, 1(B)(ii), inserted by
St. 2004, c. 444, 1. If this threshold requirement is met,
the claimant must then "establish at trial, by clear and
convincing evidence, that he or she did not commit the offense
charged." Renaud v. Commonwealth, 471 Mass. 315, 317-318 (2015)
(holding that insufficient evidence alone may be a ground for a
wrongful conviction complaint, when considered in the context of
the nature of the offense and all the facts and circumstances).
The Commonwealth contends that Santana failed to satisfy the
threshold determination of eligibility because the ground on
which he was granted judicial relief, insufficiency of the
evidence, did not tend to establish his innocence. In Renaud,
the court rejected a categorical approach to evaluating judicial
relief based on insufficiency of the evidence. Id. at 319. The
court held that insufficient evidence does not "necessarily
Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999) ("The notice of appeal . . . shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from"). See also Blackburn v. Blackburn, 22 Mass. App. Ct. 633, 634-635 & n.2 (1986). As a practical matter, the issues raised on appeal are the same as those decided in both the order denying the motion for reconsideration and the original memorandum and order denying the motion for judgment on the pleadings.

equate to actual innocence," but by the same token, lack of
certain types of evidence may tend to show actual innocence.
Ibid. We therefore must follow a case-specific, fact-based
approach to determine whether judicial relief based on
insufficient evidence tends to establish actual innocence in any
given case.
In Santana's direct appeal, this court concluded that the
evidence was insufficient because the only evidence of
constructive possession was that Santana was present as a
passenger in a car where drugs were found. That is, there was
insufficient evidence upon which an inference of knowledge,
ability, and intent to control the drugs could be based. See
Commonwealth v. Boria, 440 Mass. 416, 418-419 (2003) (mere
presence alone is insufficient to establish constructive
possession). The judgments therefore were reversed "on grounds
resting upon facts and circumstances probative of the
proposition that the claimant did not commit the crime."
Renaud, supra at 318, quoting from Irwin, 465 Mass. at 844. For
the purposes of the threshold showing required to defeat a
motion to dismiss under G. L. c. 258D, 1(B)(ii), the absence
of evidence showing Santana intended to exercise dominion or
control over the contraband is probative of and tends to show
actual innocence. See Renaud, supra at 318.

While our conclusion permits Santana to pursue a claim
under the statute, it is a question for another day whether
Santana is in fact actually innocent of the crime charged. See
id. at 320. "Our conclusion does not entitle [Santana] to
relief. He is entitled to relief only if he proves
at trial by clear and convincing evidence that he did not commit
the offenses charged." Ibid.
Order denying motion for reconsideration affirmed.

GRAINGER, J. (concurring). I concur in the result reached
by my colleagues because it comports with existing case law. I
write separately because in my view it is incorrect to assert
that the lack of sufficient evidence to support a conviction can
provide any probative basis for a defendant's "actual
innocence." Our jurisprudence has long recognized that the
failure to prove a proposition provides no support for the
opposite conclusion. See, e.g., Commonwealth v. Swartz, 343
Mass. 709, 712 (1962) (jury's disbelief of defendant's testimony
"could not provide affirmative evidence").1
We require an individual seeking money damages from the
State to provide "clear and convincing" evidence at trial from
which a fact finder can conclude that "he or she did not commit
the offense charged." Renaud v. Commonwealth, 471 Mass. 315,
317-318 (2015). That is an appropriately rigorous requirement,
especially considering the heightened burden we place on
prosecutors. In that context I perceive no rational basis to
1 "It is settled that mere disbelief of testimony does not constitute evidence to the contrary. A case lacking adequate affirmative proof is insufficient to support a verdict in favor of the party with the burden on the issue. Wakefield v. American Sur. Co., 209 Mass. 173, 177 (1911). McDonough v. Vozzela, 247 Mass. 552, 558 (1924). Carmichael v. Carmichael, 324 Mass. 118, 121 (1949). Sutherland v. Scardino, 334 Mass. 178, 181-183 (1956). O'Connell v. Esso Standard Oil Co., 337 Mass. 639, 642 (1958). Morse v. Selectmen of Ashland, 7 Mass. App. Ct. 739, 750 (1979). See also Leach & Liacos, Massachusetts Evidence 314 (4th ed. 1967)." Kunkel v. Alger, 10 Mass. App. Ct. 76, 86 (1980).

evaluate the sufficiency of a complaint on a separate and
diluted standard, according to which merely pointing to
insufficient evidence of guilt may satisfy the enunciated
legislative test and "tend to establish the innocence of the
individual." G. L. c. 258D, 1(B)(ii), inserted by St. 2004,
c. 444, 1. To the extent there is any proper distinction to
be drawn between a proffer needed for a complaint to survive a
dispositive motion and the proof needed to prevail at trial, it
should reflect no more than the low bar a plaintiff must
surmount to survive summary judgment. That bar, which is to
show any "genuine issue as to any material fact," Mass.R.Civ.P.
56(c), as amended, 436 Mass. 1404 (2002), still requires some
positive evidence, however minimal, supporting a complaint.
Transforming a negative (insufficient proof of guilt) into a
positive (evidence of innocence) makes neither procedural nor
substantive sense.
By contrast, and improperly so, our case law currently
requires proof of actual innocence at every stage of a
proceeding brought by an unlawfully imprisoned individual
seeking to redeem a fundamental constitutional right, his or her
liberty. See Commonwealth v. Holmes, 469 Mass. 1010 (2014). In
Holmes, a defendant seeking credit against a current
incarceration after serving a previous sentence subsequently

vacated was denied credit on the rationale, among others,2 that
"we are not faced with circumstances where an earlier conviction
has been vacated on the ground of actual innocence." Id. at
1012 n.3.

Outcome: Comparing these two standards, our cases currently make it
easier for an individual to proceed with a suit for money
damages against the public treasury than to bring an action to
be released from prison, or to seek the reduction of
imprisonment to no more than the amount to which he or she has
been lawfully sentenced. This anomaly, as well as the reasoning
of each rule viewed independently, calls strongly for

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