Commonwealth v. Kenton Thomas.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1019

COMMONWEALTH

vs.

KENTON THOMAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of the

lesser included offense of involuntary manslaughter on an

indictment that charged him with second-degree murder. The

defendant raises four issues on appeal. First, he contends that

trial counsel was ineffective for failing to properly redact the

transcript of his recorded interview with detectives that was

submitted to the jury. Second, he argues that the admission of

a folding knife found on his person when he was arrested weeks

after the murder was unduly prejudicial because it was not

definitively proven that the knife was used to stab the victim.

Third, the defendant argues that the judge abused her discretion

by limiting cross-examination of a cooperating witness. Lastly,
the defendant argues that he was deprived of a fair trial when

the judge ruled that his jury consultant could not be present in

the courtroom during jury selection. We affirm.

Background. In the early morning hours, the defendant, his

friend, and the victim socialized together near Mattapan Square.

The friend used the defendant's cellular telephone to call two

drug dealers, planning to buy "crack" cocaine with money that he

and the defendant had pooled. Although the first drug dealer

did not have anything to sell, the second drug dealer arrived by

car and sold the friend crack cocaine. The friend and the

defendant walked to a nearby church parking lot and smoked the

crack cocaine. The victim did not join them. After five to ten

minutes, the friend returned to a place near where he bought the

drugs and met up with the victim. The defendant subsequently

rejoined them. At trial, the friend testified that the

defendant punched the victim in the shoulder twice and said,

"Where's my money?" The defendant knocked the victim to the

ground, but the victim got back up. The defendant and the

friend then left the area on foot. Surveillance video showed

the defendant and the friend exiting an alley. The two figures

were identified during the course of the trial but we describe

them solely by order of appearance. The first figure walked out

of the alley and down one street, and a second figure jogged out

of the alley and down another street. The video showed the

2
first figure kneeling near a storm drain and tossing an object

down the drain. A knife was later recovered from the bottom of

the storm drain.

Less than a minute after the defendant and his friend left

the alley, the victim staggered out of the alley and collapsed

in the middle of the street. A passing driver later found the

victim lying in a pool of blood with a box cutter next to him.

The victim had suffered one stab wound and five incision wounds.

The stab wound to his arm cut his brachial artery, which caused

significant bleeding. The victim died due to sharp wound

injuries and blood loss. The medical examiner opined that the

kind or kinds of instruments that were used to kill the victim

could not be determined. It was the Commonwealth's theory at

trial that the first figure to exit the alley was the defendant,

that he dropped a knife down the storm drain, and that the storm

drain knife was the weapon he used to stab and kill the victim.

The friend cooperated with investigators. He provided a

physical description of the defendant as well as the drug

dealer's phone number. Investigators obtained the drug dealer's

cell phone call records, which revealed a call from a phone

number registered to the defendant's mother. The friend

identified the defendant in a photo array as the man who stabbed

the victim.

3
Seven weeks after the crime, detectives brought the

defendant in for questioning. Before the interview, detectives

seized a folding knife that the defendant was carrying, which

was later admitted in evidence at trial. During the recorded

interview, the defendant made several incriminating statements.

The defendant admitted that he carried an old phone that he let

people use to call drug dealers. He said that "sometimes, you

know, you just get tired of being bullied," and "I just get

tired of it, but you never intend to hurt anybody." The

defendant went on to tell detectives that "just hypothetically

speaking . . . you're thinking, you know, the next time this

particular person will know or won't, you know, bother this

person, whatever, and then you get word that somebody died.

Your heart jumps out of your fucking chest . . . . It's over

for me." Although the defendant denied any wrongdoing, he

admitted that he was at the crime scene with someone whose name

"starts with a P."1 He insisted that "nothing was meant to go

down" and that "I witnessed something I wasn't supposed to

witness." A redacted version of this interview was admitted in

evidence at trial. The redactions consisted of both court-

ordered redactions and redactions agreed-upon by the parties.

The redactions concerned potentially prejudicial information

1 The friend's name starts with the letter "P."

4
such as past arrests, an unrelated warrant, and the potential

sentences for murder. The Commonwealth also introduced a

redacted transcript of the interview, and each juror was

provided with a paper copy. During deliberations, the jury also

had access to a thumb drive with a PDF version of the redacted

interview.

Sometime after trial, the defendant became aware that the

PDF transcript on the thumb drive may have been improperly

redacted.2 The contents of the thumb drive, including the PDF

file, are part of the record on appeal. The defendant argues

that if the jurors had plugged the thumb drive into a computer

and viewed the PDF, that they could have edited the PDF and read

the redacted portions. The defendant contends that the

"redactions" were merely black highlighting, and that by

changing the color of the highlights to a transparent color, or

by deleting them altogether, the jurors could have read the

redacted portions of the interview.

Discussion. 1. Ineffective assistance of counsel. The

defendant contends that trial counsel was ineffective for

allowing the thumb drive with the improperly redacted PDF file

2 The defendant's appellate counsel disclosed at oral
argument that he discovered the allegedly improper redactions as
he was preparing the record appendix for this appeal.

5
to go into the jury room. In the alternative, he argues that

this sequence of events gave rise to a substantial risk of a

miscarriage of justice.

In a claim for ineffective assistance of counsel, the

defendant has the burden of showing that "(1) 'there has been

serious incompetency, inefficiency, or inattention of

counsel -- behavior of counsel falling measurably below that

which might be expected from an ordinarily fallible lawyer'; and

(2) as a result, the defendant was 'likely deprived . . . of an

otherwise available, substantial ground of defence.'"

Commonwealth v. Henley, 488 Mass. 95, 134 (2021), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

A motion for new trial is the "preferred method" for

raising an ineffective assistance of counsel claim.

Commonwealth v. Davis, 481 Mass. 210, 222 (2019). A claim for

ineffective assistance of counsel made solely on the trial

record is the "weakest form" of such a claim. Id. Only "when

the factual basis of the claim appears indisputably on the trial

record" will the defendant be entitled to relief. Id. at 223,

quoting Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015).

The defendant's argument fails at the outset because it

lacks a factual predicate. The record is devoid of any evidence

that the PDF could have been altered by the jurors. Since trial

counsel did not move for a new trial, there was no fact finding

6
in the lower court regarding the PDF files. The defendant

argues that because the PDF file is part of the record on

appeal, this court can draw its own conclusions regarding

whether the jurors could have viewed the redactions. This is

not the role of an appellate court. See Commonwealth v. Alphas,

430 Mass. 8, 21 (1999) (Greaney, J., concurring) ("Appellate

courts do not sit as triers of fact"). We are in no position to

assess for ourselves the technological feasibility of editing

PDF documents.

Moreover, even if we were to assume that the PDF is capable

of manipulation as the defendant asserts, there is no showing

that the jurors ever viewed the PDF, let alone tampered with it.

The judge instructed the jurors that "you are not to speculate

or engage in any guesswork about what the blacked-out portion

may contain or any of those portions may contain because they're

not before you." If the jurors had tampered with the PDF to

read the redactions, they would have directly violated the

judge's instruction. We presume that the jury followed the

judge's instructions. Commonwealth v. Brown, 479 Mass. 163, 173

(2018). To charge counsel with the obligation to foresee a

jury's disobedience would undermine this clearly settled

proposition.

The defendant argues that despite the factual deficiency,

the mere possibility that the jury could have viewed the

7
redactions is enough to warrant a new trial. We disagree.

First, the defendant cites no authority for this proposition.

Again, as we have noted, we presume that the jurors properly

followed the judge's instruction. Brown, 479 Mass. at 173.

Second, in an ineffective assistance of counsel claim, the

defendant bears the burden of showing that counsel's errors

"likely deprived the defendant of an otherwise available,

substantial ground of defence." Saferian, 366 Mass. at 96. See

Commonwealth v. Montez, 450 Mass. 736, 755 (2008). In other

words, "there ought to be some showing that better work might

have accomplished something material for the defense."

Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). See

Commonwealth v. Millien, 474 Mass. 417, 430-431 (2016)

(articulating this standard in terms of whether the error

prejudiced the defendant). The defendant has failed to make

this showing. There are no facts in the record that establish

that the defendant was prejudiced by counsel's purported errors,

since there is no evidence that the jurors ever read the

prejudicial material. The defendant's ineffective assistance

claim fails as a result.

The defendant's alternative argument -- that the issue gave

rise to a substantial risk of a miscarriage of justice -- fails

for the same reasons. As explained above, the defendant has not

established that the jurors ever viewed the redactions. Without

8
such a showing, there is no proper basis on which we can

conclude that there was any error, much less one that materially

influenced the outcome. See Commonwealth v. Horne, 476 Mass.

222, 228 (2017).

2. Restriction of cross-examination. The defendant filed

a motion in limine to admit evidence that at the time of the

crime, the friend had an open case for assault with a deadly

weapon involving a knife. The judge ruled that testimony

concerning the following facts were admissible: that the friend

had an open case for assault with a deadly weapon, that it

involved a knife, that the case was open when the friend spoke

with investigators, and that the Boston police department was

involved in both cases. The judge excluded testimony regarding

the facts of the open case and the potential sentences for

assault with a deadly weapon.

At trial, the friend testified that he spoke to the police

on three separate dates prior to his grand jury testimony. He

testified that the open case was pending during all three

interviews. Defense counsel extensively cross-examined the

friend; he inquired into the friend's drug habit, inconsistent

testimony, and bias. To impeach the friend for bias, defense

counsel asked if the open case was "in the back of [his] mind"

when he spoke with investigators, which the friend denied.

Defense counsel culminated this line of cross-examination by

9
asking the friend if the police raised the subject of the open

case during their first interview. The judge sustained the

Commonwealth's objection. The judge explained that the question

was "completely unnecessary for probative value, and it's

prejudicial to the Commonwealth, and I think the line is drawn

there, and it's a fair line." The defendant claims error in the

judge's limitation of cross-examination on the issue of bias.

The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights give a

defendant the right to cross-examine prosecution witnesses on

the issue of bias or prejudice. Commonwealth v. Avalos, 454

Mass. 1, 6-7 (2009). See Davis v. Alaska, 415 U.S. 308, 316-317

(1974). This right, however, is not absolute. Commonwealth v.

Barnes, 399 Mass. 385, 393 (1987). A judge has broad discretion

to admit evidence of bias and "may limit and 'control the scope

of cross-examination . . . once the jury have been "adequately

exposed" to the issue.'" Commonwealth v. Mountry, 463 Mass. 80,

86 (2012), quoting Commonwealth v. Joyce, 382 Mass. 222, 231

(1981). What the judge may not do is "bar all inquiry into the

subject" of bias. Avalos, 454 Mass. at 7, quoting Commonwealth

v. Allison, 434 Mass. 670, 681 (2001).

The judge acted within her discretion because she did not

foreclose inquiry into the issue of bias. To the contrary, she

allowed the defendant to cross-examine the friend about his open

10
case; namely, that the open case was for assault with a deadly

weapon, that it was open when he spoke with investigators, and

that the Boston Police Department investigated both cases. Once

the jury had been "adequately exposed to the issue," Mountry,

463 Mass. at 86 (quotation omitted), the judge stepped in. The

judge did not allow inquiry into the facts of the open case,

which, as the prosecutor argued at side bar, bordered on

propensity evidence.3 Nor did the judge allow the defendant to

ask the friend whether the open case was discussed during his

initial interviews with Boston police detectives. The jurors

could already infer that the friend had an incentive to testify

against the defendant to garner favorable treatment on his open

case. The judge was within her discretion to draw a line on the

permissible scope of cross-examination. Compare Commonwealth v.

Taylor, 455 Mass. 372, 378-381 (2009) (defendant impeached

witness for bias by highlighting witness's favorable plea

agreement and relationship with a codefendant; judge then

limited inquiry into defendant's refusal to testify at

codefendant's trial). We cannot conclude that the judge's

decision to limit cross-examination was "outside the range of

3 Although the prosecutor's references to propensity
evidence at side bar came after the defendant's question about
whether the police raised the subject of the open case, the
prosecutor was more likely referring to the facts of the open
case as potential propensity evidence.

11
reasonable alternatives," L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014), because the witness had already been impeached

for bias.

3. Admission of the folding knife. At trial, the

defendant objected to the admission of the folding knife that

detectives found on him when the defendant was brought in for

questioning. We review the judge's evidentiary ruling for abuse

of discretion. Commonwealth v. Ashman, 430 Mass. 736, 744

(2000).

Prior to trial, the defendant filed a motion in limine to

exclude evidence that the defendant possessed the folding knife

when he was arrested seven weeks after the crime. The

Commonwealth argued that the folding knife was admissible

because it could have been used to commit the crime. The

medical examiner testified that the type of knife used to kill

the victim could not be determined. The judge deferred her

ruling on the question whether the knife was admissible but

noted that "we have multiple people and multiple [knives] . . .

if we're going to be fair to the jury, to give them the full

picture, I don't see why we'd be leaving out this one [knife]."

The judge ultimately ruled that the folding knife was admissible

only for the limited issue of whether "the Defendant had access

to and knowledge of a weapon that could have been used in the

commission of the crime charged."

12
The Supreme Judicial Court's decision in Commonwealth v.

Colton, 477 Mass. 1 (2017), is instructive. In that case, the

defendant stabbed and killed the victim and threw the knife into

the Charles River. Id. at 4, 7. State Police divers retrieved

the knife from the riverbed, but having been underwater, the

knife was washed clean of fingerprints. Id. at 7 & n.7. Police

also recovered several knives from the defendant's personal

collection, which were admitted at trial. Id. at 4, 13. The

medical examiner testified that the type of knife used to kill

the victim could not be determined. Id. at 13. The

Commonwealth's theory at trial was that the Charles River knife

was the murder weapon, bolstered by the defendant's admission

that he threw the murder weapon in the river. Id. at 4, 7, 13.

Since the knife had no fingerprints, however, it could not be

conclusively proven that it was used to commit the murder. The

judge ruled that the knives from the defendant's collection were

admissible "as the means by which the defendant might have

stabbed the victim." Id. at 13.

Similarly, here, as the Commonwealth asserts, even though

it could not be conclusively determined which knife was the

murder weapon, the folding knife was properly admitted to show

13
that the defendant had the means to commit the crime. Ashman,

430 Mass. at 744.4

4. Jury consultant. The defendant argues that the judge

abused her discretion by denying the defendant's motion for

funds to hire a jury consultant (or expert) to assist in jury

selection. This argument is unavailing because although the

judge initially denied the defendant's motion for funds, she

subsequently allowed it and, in fact, the defendant had the

benefit of a jury consultant.

Next, the defendant argues that he was deprived of a fair

trial because the jury expert was not permitted to consult with

the defendant in the courtroom. The defendant was permitted to

consult with his expert outside of the courtroom only. The

defendant's primary contention is that by excluding the jury

consultant from the courtroom, the judge effectively closed the

4 At oral argument, the defendant argued that the knives in
Colton were admissible merely to prove premeditation. We do not
read Colton so narrowly. The court in Colton explained that
"the knives properly were admitted not as bad act propensity
evidence as the means by which the defendant might have stabbed
the victim." Colton, 477 Mass. at 13. See Ashman, 430 Mass. at
744 ("Evidence that a defendant possessed a weapon that could
have been used to commit a crime is relevant to prove that the
defendant had the means of committing the crime"); Commonwealth
v. James, 424 Mass. 770, 779-780 (1997) (holding that knives
from defendants' homes admissible to show defendants had means
of committing crimes). The court was clear that the knives in
Colton were admissible as the possible murder weapons, not only
to prove the defendant's mental state.

14
courtroom, which amounts to structural error requiring reversal.

This argument too falls short.

The Sixth Amendment to the United States Constitution

guarantees criminal defendants the right to a public jury trial.

Waller v. Georgia, 467 U.S. 39, 46 (1984); Commonwealth v.

Cohen, 456 Mass. 94, 106 (2010). The right to a public trial

extends to jury empanelment. Cohen, supra, citing Presley v.

Georgia, 558 U.S. 209 (2010). A partial closure of the

courtroom may amount to structural error when there is not a

"substantial reason" for the closure. Cohen, supra at 111

(quotation omitted). A violation of a defendant's Sixth

Amendment right can amount to structural error requiring

reversal. Commonwealth v. Alebord, 467 Mass. 106, 112, cert.

denied, 573 U.S. 921 (2014). The defendant alleges that the

partial closure of the courtroom constitutes structural error

that requires reversal.

We need not belabor this point because there is no evidence

in the record that the courtroom was closed or partially closed.

When the judge allowed the defendant's motion for funds to hire

a jury consultant, she ruled that the motion was allowed "for

the limited purpose of providing counsel sought by the trial

lawyer outside the courtroom." The judge merely limited where

the jury consultant could consult with trial counsel. See

Commonwealth v. Heywood, 484 Mass. 43, 45 (2020) (affording

15
trial judge broad discretion in jury selection process). There

was no error or abuse of discretion.

Judgment affirmed.

By the Court (Vuono, Singh &
Hershfang, JJ.5),

Clerk

Entered: April 4, 2025.

5 The panelists are listed in order of seniority.

16