Commonwealth v. Chad J. Leblanc.

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

24-P-1423

COMMONWEALTH

vs.

CHAD J. LEBLANC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted by a District Court jury of larceny of property

valued at more than $1,200, G. L. c. 266, § 30 (1), the

defendant appeals from his conviction and from the denial of his

motion for a new trial. On appeal, he argues that his trial

lawyer was ineffective for not objecting when (1) witnesses

testified describing video footage that was not introduced at

trial, (2) the prosecutor called a witness added to the witness

list on the morning of trial, and (3) a police detective

identified the defendant as the person arrested, although a

different officer arrested him. We affirm.

Background. On the afternoon of January 15, 2022, at a

Walmart in Lynn, a display case in the jewelry department was
broken into, jewelry was taken from it, and a hammer and crowbar

from the hardware department were left under it. Surveillance

video of the store interior depicted a white man wearing a mask,

a gray hooded sweatshirt, dark pants, and white sneakers

breaking into the jewelry display case with the hammer and

crowbar. A video of the parking lot was not admitted in

evidence, but loss prevention officer Enoc Pierresin testified

that it depicted the man getting into a gray Chevrolet Malibu; a

police detective could not recall if that video depicted the man

walking to the Malibu. From that video, a still image of the

Malibu and its license plate was admitted in evidence. The

detective determined that the Malibu was registered to the

defendant.

The next evening, January 16, 2022, surveillance video

inside the same Walmart recorded a white man breaking into

another display case in the jewelry department. The man was

wearing a red mask with a Door Dash logo, a gray jacket, and

blue jeans. He opened a jewelry case, took items valued at

$3,181, and left the store. Loss prevention officer Luis

Rivera-Toucet testified that surveillance video of the parking

lot depicted the man getting into the Malibu. Once again, the

parking lot video was not admitted in evidence, but only a still

image of the Malibu and its license plate.

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Police obtained a warrant for the defendant's arrest. On

January 28, 2022, about one-half mile from the Walmart, police

stopped the Malibu and arrested the defendant.

In closing, defense counsel conceded that the defendant's

Malibu was in the Walmart parking lot on January 15 and 16,

2022, but argued that the Commonwealth had not proven that the

defendant was in it, because someone could have borrowed his

car, the still images taken from the parking lot videos were not

clear, and no witness identified him at trial as the person on

the videos. The prosecutor argued that the jury should compare

images of the man inside the store to the defendant's Registry

of Motor Vehicles photograph and his appearance in the

courtroom. The jury convicted the defendant of the January 16

larceny and acquitted him of the January 15 larceny, and the

defendant filed a timely notice of appeal.

Represented by new counsel, the defendant filed a motion

for a new trial, arguing that trial counsel was ineffective for

not seeking to exclude the testimony of Pierresin and Rivera-

Toucet that the parking lot videos depicted the man who had been

in the jewelry department getting into the Malibu. The

defendant pointed out that police body camera footage provided

to the defense in pretrial discovery showed that when a Walmart

employee had offered to give police the parking lot videos, a

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detective replied that police needed only still images from each

date showing the Malibu's license plate.

The same judge who had presided over the trial held an

evidentiary hearing at which trial counsel testified. However,

trial counsel did not remember much about the trial nearly two

years before, including whether he had reviewed the body camera

videos, and the defendant's new counsel did not attempt to

refresh his memory with trial transcripts or exhibits. The

judge denied the motion for a new trial, ruling that the

defendant had not shown ineffective assistance under the test

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

The defendant appeals.

Discussion. 1. Motion for a new trial. "A motion for new

trial may be granted only 'if it appears that justice may not

have been done.'" Commonwealth v. Gil, 104 Mass. App. Ct. 124,

135 (2024), quoting Mass. R. Crim. P. 30 (b), as appearing in

435 Mass. 1501 (2021). "[We] review the denial of a motion for

a new trial for a significant error of law or other abuse of

discretion" (quotation and citation omitted). Commonwealth v.

Erler, 106 Mass. App. Ct. 149, 151 (2025). "Reversal for abuse

of discretion is particularly rare where, [as here], the judge

acting on the motion was also the trial judge" (citation

omitted). Gil, supra. "To prevail on a claim of ineffective

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assistance of counsel, the defendant must show that the behavior

of counsel fell measurably below that of an ordinary fallible

lawyer and that such failing likely deprived the defendant of an

otherwise available, substantial ground of defence" (quotations

and citations omitted). Commonwealth v. Gardner, 102 Mass. App.

Ct. 299, 308 (2023). See Saferian, 366 Mass. at 96.

2. Best evidence rule. The defendant contends that his

lawyer was ineffective for failing to object to the testimony of

Pierresin and Rivera-Toucet that the parking lot videos depicted

the man who had been in the jewelry department walking to the

Malibu. He argues that admission of that testimony without the

parking lot videos violated the best evidence rule, and absent

that testimony the Commonwealth could not have proven that the

defendant was the person who stole the jewelry on January 16.

As for the first Saferian prong, it is not at all clear

that an ordinary fallible lawyer would have objected to the

testimony of Pierresin and Rivera-Toucet on best evidence

grounds. "The best evidence rule provides that, where the

contents of a document are to be proved, the party must either

produce the original or show a sufficient excuse for its

nonproduction." Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001).

See Mass. G. Evid. § 1002 (2025). A sufficient excuse for

nonproduction may arise when evidence "is lost or destroyed, and

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not by the proponent acting in bad faith" (citation omitted).

Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 585 (2017). As

applied to electronic records such as videos, "[t]he best

evidence rule does not forbid the use of 'copies' of electronic

records . . . because there is no 'original' in the traditional

sense." Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 356 n.10

(2013). See Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294

(2006) (best evidence rule inapplicable to images stored on

computer hard drive and then transferred to compact disk).

"However, oral testimony designed to prove the contents of an

electronic record is barred for the same reasons as those

underlying the best evidence rule." Salyer, supra.

Because the defendant did not question trial counsel at the

evidentiary hearing about why he did not object at trial on best

evidence grounds, the record before us does not establish that

trial counsel's decision fell below the standard of an ordinary

fallible lawyer. The record contains no information about

whether the parking lot videos still existed at the time of

trial, which took place about six months after the thefts. Nor

is there information about whether the police acted in bad faith

by not obtaining the parking lot videos. For the purposes of

our analysis, we assume that the testimony of Pierresin and

Rivera-Toucet describing the contents of the parking lot videos

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should have been "barred for the same reasons as those

underlying the best evidence rule," Salyer, 84 Mass. App. Ct. at

356 n.10.

As to the second Saferian prong, whether the defendant has

shown prejudice, we conclude that he has not. After trial

counsel refrained from objecting to Pierresin's testimony that

the January 15 parking lot video depicted the man who had been

in the jewelry department getting into the Malibu, counsel

elicited from a police detective that he could not recall if

that video depicted the man walking across the parking lot to

the Malibu, and "I don't believe that [it] did." In closing,

trial counsel capitalized on that discrepancy, arguing that the

Commonwealth's case amounted to "just I saw a guy get into a car

that happened to be going around the jewelry area." Trial

counsel also pointed out that Pierresin claimed that the January

15 parking lot video was "crystal clear," but the Commonwealth

only provided the jury with "photographs that looked just like

this," displaying the blurry still images taken from the videos.

The jury acquitted the defendant of the January 15 theft. Thus,

trial counsel's strategy succeeded as to the January 15 charge;

that it was unsuccessful as to the January 16 one "does not make

it manifestly unreasonable." Gil, 104 Mass. App. Ct. at 136.

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As to the best evidence issue, we discern no abuse of

discretion in the trial judge's denial of the motion for a new

trial.

3. Late-disclosed witness. The defendant argues that

trial counsel was ineffective for not precluding the testimony

of Rivera-Toucet, because the Commonwealth's witness list

originally stated that a different Walmart employee, Lisa

Martin, would testify, and his testimony went beyond that of a

keeper of records.

On the morning of trial, the prosecutor informed the judge

and defense counsel that Martin would not be available until

that afternoon and Rivera-Toucet would testify instead; his name

was handwritten on the witness list. Defense counsel objected.

The prosecutor represented that Rivera-Toucet would "essentially

. . . just be testifying as a keeper of the records" to

authenticate the January 16 surveillance video, and he had

reviewed it and was present when Martin downloaded it. The

judge ruled to permit Rivera-Toucet to testify based on his

personal knowledge, and if trial counsel had any "objection in

regards to the hearsay . . . the Court would rule." See

Commonwealth v. Carter, 475 Mass. 512, 519 (2016) ("A judge has

significant discretion in deciding whether late-discovered or

late-disclosed witnesses should be excluded from testifying as a

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remedy for the late disclosure" [quotation and citation

omitted]).1

As mentioned, Rivera-Toucet testified, without objection,

that the January 16 parking lot video depicted the man who had

been in the jewelry department getting into the Malibu. In his

motion for a new trial, the defendant argued that trial counsel

was ineffective for not objecting to that testimony on the

ground that it went beyond that of a keeper of the records. We

are not persuaded that trial counsel's failure to object was

conduct below that of an ordinary fallible lawyer. At the

evidentiary hearing on the motion for a new trial, the defendant

did not ask trial counsel whether he considered objecting to

Rivera-Toucet's testimony on the ground that it went beyond that

of a keeper of the records, or show counsel the pages of the

trial transcript pertaining to the issue.

As discussed above, even assuming that Rivera-Toucet's

testimony describing the January 16 parking lot video was

objectionable, the defendant has not shown prejudice. Trial

counsel made the absence of the parking lot videos a key part of

the defense theory. In those circumstances, we discern no abuse

1 We note that the prosecutor had represented that Martin
"may end up being available at 2 P.M." Rivera-Toucet's
testimony began at about 2:45 P.M., but there was no further
discussion of Martin's availability.

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of discretion in the trial judge's denial of the motion for a

new trial on this ground.

4. Police testimony identifying defendant as person

arrested. Finally, the defendant argues that his trial lawyer

was ineffective for failing to object to the testimony of

Detective Ralph Sirois about the defendant's arrest, when in

fact a different officer had stopped the Malibu and arrested the

defendant. As a result, the defendant argued, Sirois's

identifying the defendant as the person arrested was hearsay in

violation of the right to confrontation under the Sixth

Amendment to the United States Constitution.

On trial counsel's objection, the judge ruled to preclude

Detective Sirois from testifying about sneakers seized pursuant

to a search warrant, because of the Commonwealth's late

disclosure of that evidence. During that discussion, trial

counsel told the judge that Detective Sirois "may testify that

he arrested [the defendant], which is fine. I don't have a

problem with that, I don't find that prejudicial anyways because

he was arrested. That's a fact."

Detective Sirois testified that "[a] motor vehicle stop was

[e]ffected on that car by Officer Edos of the traffic unit, and

subsequently the operator was identified as [the defendant]."

Detective Sirois then identified the defendant in court as the

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person he saw in custody. The defendant argues that the

testimony was inadmissible hearsay because Detective Sirois did

not actually arrest the defendant, but only saw him after he was

taken into custody.

In Commonwealth v. Crayton, 470 Mass. 228, 242 (2014), the

court held that an in-court identification might be permitted

"where the witness is an arresting officer who was also an

eyewitness to the commission of the crime, and the

identification merely confirms that the defendant is the person

who was arrested for the charged crime." However, "[a]n officer

who did not participate in the arrest of a defendant cannot make

such an assertion." Commonwealth v. Ortiz, 487 Mass. 602, 609

(2021). We need not resolve the question whether Detective

Sirois's seeing the defendant after he was taken into custody

amounted to participating in his arrest, thus permitting an in-

court identification, because we conclude that the defendant was

not prejudiced.

Instead of objecting to Detective Sirois's testimony about

the defendant's arrest, trial counsel elicited on cross-

examination that no stolen jewelry was found in the Malibu or on

the defendant's person. And the fact that, twelve days after

January 16, the defendant was driving the Malibu that was

registered to him was not particularly prejudicial. In those

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circumstances, we see no abuse of discretion in the trial

judge's determination that trial counsel's handling of Detective

Sirois's testimony did not amount to ineffective assistance.

Judgment affirmed.

Order denying motion for a
new trial affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.2),

Clerk

Entered: January 16, 2026.

2 The panelists are listed in order of seniority.

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