Commonwealth v. Nazareth Perkins.

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

25-P-597

COMMONWEALTH

vs.

NAZARETH PERKINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant, Nazareth Perkins,

was convicted of armed and masked robbery, in violation of G. L.

c. 265, § 17. The Commonwealth filed a nolle prosequi on the

habitual offender portion of the indictment and jointly

recommended a sentence of fifteen to twenty years in State

prison, which the trial judge imposed. A panel of this court

affirmed the defendant's conviction on direct appeal. See

Commonwealth v. Perkins, 98 Mass. App. Ct. 1120 (2020). The

defendant subsequently filed a motion for a new trial, and

later, a renewed motion for a new trial, or, in the alternative,

a new sentencing hearing, both of which the motion judge denied
in a single order.1 On appeal, the defendant argues that the

motion judge abused his discretion by denying his motions for a

new trial, including by doing so without holding an evidentiary

hearing. We affirm.

Background. On January 19, 2017, at approximately 8 P.M.,

the defendant and two other men approached the New Family Market

in Dorchester from an alleyway near Humboldt Avenue and Crawford

Street. The defendant wore a mask, maroon hooded sweatshirt,

and black pants; a second man, Richard Greene, was unmasked and

wore a knit cap; and the third man, who was never identified,

wore a mask, green camouflage jacket, and hood. The defendant

was taller than the other two men. Shortly after the three men

entered the market, Greene and the unidentified man pointed

firearms at the market workers, telling them not to move.

During the robbery, the defendant pointed to a cash

register, at which time a distinctive tattoo of an "Adidas"

symbol, located on his right hand, became visible on the

market's surveillance video recording. The robbers took money

from cash registers, money from one of the market workers, and a

box of cigarettes. The three men departed the market through a

rear doorway that was not typically used by customers, where a

1 The defendant filed an initial motion for a new trial in
December 2023, and he filed the renewed motion in May 2024.
2
car was waiting for them outside. The robbers entered the car,

and it drove away.

Through subsequent investigation into the armed robbery,

the Boston police department (BPD) determined that the defendant

had a tattoo on his right hand that resembled the tattoo

depicted on the surveillance video recording. In addition, a

BPD database search revealed that out of approximately 1.5

million tattoo images, five people in the database had some form

of an Adidas tattoo on their right hand. Among these people,

only one had a height and build similar to the defendant.

The police also learned through cell phone records that the

defendant and Greene had twenty-six communications on their cell

phones between 3:56 P.M. and 8:51 P.M. on the date of the

robbery. Many of the communications occurred just prior to the

robbery but ceased at 7:21 P.M. There was no such communication

between 8 P.M. and 8:11 P.M., which was the time when the

robbery and getaway occurred. Furthermore, the defendant had

resided immediately across the street from the market.

Discussion. We review the denial of the defendant's motion

for a new trial for an abuse of discretion. See Commonwealth v.

DeJesus, 71 Mass. App. Ct. 799, 811 (2008). Under Mass.

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

judge may grant a new trial only "if it appears that justice may

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not have been done" (citation omitted). Commonwealth v.

Fanelli, 412 Mass. 497, 504 (1992). "'[A] motion for new trial

may not be used as a vehicle to compel . . . review and

[consideration of] questions of law,' on which a defendant has

had his day in an appellate court, or [on which he has] forgone

that opportunity" (citation omitted) Commonwealth v. Watson,

409 Mass. 110, 112 (1991). "If a defendant fails to raise a

claim that is generally known and available at the time of trial

or direct appeal or in the first motion for postconviction

relief, the claim is waived." Rodwell v. Commonwealth, 432

Mass. 1016, 1018 (2000).

Here, except for the ineffective assistance of counsel

claim, all of the claims raised by the defendant in both his

initial and renewed motions for new trial were knowable and

available at the time of the trial or on direct appeal, they are

waived. See Rodwell, 432 Mass. at 1018. However, "waived

claims, no less than preserved claims, are reviewed on appeal."

Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 (2019).

However, we review waived claims only to determine if error

occurred, and if so, whether it created a substantial risk of a

miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.

290, 293-295 (2002). "Errors of this magnitude are

extraordinary events and relief is seldom granted." Id. at 297.

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1. Tattoo expert. The defendant argues that his trial

counsel was ineffective for failing to call a tattoo expert at

trial to conduct a comparison between the defendant's tattoo and

the tattoo depicted on the surveillance video footage.2 We are

not persuaded.

"To prevail on a claim of ineffective assistance of

counsel, the defendant ultimately must show that (1) counsel's

performance fell measurably below that of an ordinary fallible

lawyer, and (2) the defendant suffered prejudice as a result."

Commonwealth v. Santana, 497 Mass. 120, 131 n.13 (2026). If a

claim of ineffective assistance "is based on a tactical or

strategic decision, however, we apply the more rigorous standard

providing that, to be ineffective, the attorney's decision must

have been manifestly unreasonable." Commonwealth v. Henderson,

486 Mass. 296, 302 (2020).

"The decision to call, or not to call, an expert witness

fits squarely within the realm of strategic or tactical

decisions." Henderson, 486 Mass. at 306, quoting Commonwealth

v. Ayala, 481 Mass. 46, 63 (2018). "Where a party in a criminal

trial seeks to offer an expert opinion, the judge, as

2 The defendant did not provide us any images of his tattoo
or of the perpetrator's tattoo in either this appeal or his
prior appeal.

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gatekeeper, must first determine whether the proponent of the

evidence has met the five foundational requirements for

admissibility," the first being "that the expert testimony will

assist the trier of fact because the information is beyond the

common knowledge of jurors." Commonwealth v. Polk, 462 Mass.

23, 31 (2012).

Here, the defendant did not offer an affidavit from trial

counsel (or any explanation for the absence of such an

affidavit) leaving us to speculate as to the reasons for

counsel's decision. See Commonwealth v. Martinez, 86 Mass. App.

Ct. 545, 550 (2014) ("in ineffective assistance claims, the

court is entitled to draw a negative inference from the

defendant's failure to secure an affidavit from trial or plea

counsel"). In any event the defendant's argument fails because

comparing photographs of tattoos is not beyond the common

knowledge and experience of jurors. See Coyle v. Cliff Compton,

Inc., 31 Mass. App. Ct. 744, 749-750 (1992) ("Where a matter may

easily be comprehended by jurors the testimony of an expert has

no place" [citation omitted]). In other words, such testimony

would not have been permissible because this "was within an

ordinary juror's common experience." Commonwealth v. Walters,

485 Mass. 271, 291 (2020). Accordingly, the defendant's trial

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counsel did not make a "manifestly unreasonable" decision by not

calling an expert. Henderson, 486 Mass. at 302.

2. Identification testimony. The defendant contends that

the BPD identified him as one of the robbers through an unduly

suggestive identification process. This argument is misplaced.

"Where a defendant alleges that witness identifications
arise from unnecessarily suggestive circumstances, the
defendant has the burden to prove, by a preponderance of
the evidence, that the witness was subjected by the State
to a pretrial confrontation . . . so unnecessarily
suggestive and conducive to irreparable mistaken
identification as to deny the defendant due process of law"
(quotation and citation omitted).

Commonwealth v. Silva-Santiago, 453 Mass. 782, 794-795 (2009).

"In considering whether identification testimony should be

suppressed, the judge must examine 'the totality of the

circumstances attending the confrontation to determine whether

it was unnecessarily suggestive.'" Id. at 795.

Contrary to the defendant's argument, no witness identified

the defendant either in-court or out-of-court or opined that the

person in the image from the surveillance video footage was the

defendant or that the tattoo matched his. To the contrary,

Detective Juan Diaz described the tattoo that drew police

attention and why the police focused their investigation on the

defendant. The jury were presented with evidence of the

perpetrator's tattoo and the defendant's tattoo, from which they

could make their own comparison. See Commonwealth v. Phillips,

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495 Mass. 491, 495 (2025) (jury can "assess for themselves any

points of similarity [such as facial features, hair, skin color,

build, posture, and height] between the various images in

evidence and the person present in the court room"). We discern

no substantial risk of a miscarriage of justice.

3. Jury selection process. The defendant alleges multiple

errors in the jury selection process, arguing that the trial

judge abused her discretion by (a) not excusing juror 98 for

cause sua sponte and (b) allowing the Commonwealth's peremptory

challenges to jurors 94, 31, and 71. "We afford a trial judge a

large degree of discretion in the jury selection process,"

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

Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995), and review

determinations regarding jury selection for an abuse of

discretion. Id.

a. Juror 98. The defendant argues that the trial judge

erred by not excusing juror 98 for cause sua sponte on the basis

of dishonesty. He specifically asserts that juror 98 lied about

whether he was the victim or perpetrator of a past assault. We

disagree.

During individual voir dire, juror 98 stated twice that his

partner was the victim of an assault, and that juror 98 had been

arrested for the assault. At no point did juror 98 claim he was

8
the victim of assault. Moreover, juror 98 stated that the

experience would not affect his impartiality, and the defendant

did not exercise a for-cause or peremptory challenge.

Accordingly, we discern no abuse of discretion on the part of

the trial judge for not sua sponte striking juror 98 for cause.

See Commonwealth v. Clark, 446 Mass. 620, 630 (2006) (trial

judge's "finding that a juror stands indifferent will not be

disturbed except where juror prejudice is manifest").

b. Peremptory challenges. The defendant also alleges

Batson-Soares3 violations with respect to juror 94, and --

interpreting his brief generously -- jurors 31 and 71, arguing

that the Commonwealth's peremptory challenges were impermissibly

based on race.

"The Fourteenth Amendment to the United States Constitution

and art. 12 of the Massachusetts Declaration of Rights prohibit

a party from exercising a peremptory challenge on the basis of

race . . . ." Commonwealth v. Sanchez, 485 Mass. 491, 493

(2020), quoting Commonwealth v. Jones, 477 Mass. 307, 319

(2017). "A Batson-Soares objection to a proposed peremptory

challenge . . . triggers a three-step process." Henderson, 486

3 See Batson v. Kentucky, 476 U.S. 79, 95 (1986), and
Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444
U.S. 881 (1979), overruled in part by Commonwealth v. Sanchez,
485 Mass. 491, 511 (2020).

9
Mass. at 311. In the first step, "the challenger 'must make out

a prima facie case' that [the challenge] was impermissibly based

on race or other protected status 'by showing that the totality

of the relevant facts gives rise to an inference of

discriminatory purpose.'" Commonwealth v. Jackson, 486 Mass.

763, 768 (2021), quoting Johnson v. California, 545 U.S. 162,

168 (2005). Second, if such a showing is made, "the burden

shifts to the party exercising the challenge to provide a

'group-neutral' explanation for it" (citation omitted).

Jackson, supra. "Third and finally, the judge must then

determine whether the explanation is both 'adequate' and

'genuine'" (quotation and citation omitted). Id. We review

each step of the Batson-Soares analysis for an abuse of the

discretion. Id.

i. Juror 94. Juror 944 stated that multiple members of her

family had been convicted of armed robbery and assault in

Boston, but she did not check off the corresponding question on

the jury questionnaire to show the same. She also asserted on

the questionnaire that she had kids when she did not. The

defendant objected to the Commonwealth's peremptory challenge,

4 The defendant asserts that juror 94 was a Black woman.
The record reflects the use of female honorifics and defense
counsel referred to her as a "person of color."

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arguing that juror 94 was the second person of color that had

been challenged by the Commonwealth. The trial judge did not

find a pattern of discrimination based on juror 94's "answers"

and that "she didn't read the question well enough to even get

correct whether she had kids; let alone convictions of at least

three people in her family on multiple armed robberies." The

trial judge nonetheless asked the Commonwealth to state its

reasoning, to which the Commonwealth responded that it exercised

the peremptory because juror 94 had multiple family members who

were tried and convicted of similar offenses in Suffolk County.

We discern no abuse of discretion. See Jackson, 486 Mass. at

779 (trial judge did not abuse discretion by allowing

Commonwealth's peremptory challenge to prospective juror whose

"two children had been involved with the criminal justice

system").

ii. Juror 31. Juror 31, a Black man, was initially seated

without objection by either the defendant or the Commonwealth.

But shortly after juror 31 was seated, a check of his board of

probation record showed that he had prior criminal cases that

were prosecuted in Suffolk County -- none of which he disclosed

on his jury questionnaire. The Commonwealth exercised a

peremptory challenge and, before the defendant could object,

explained that its challenge was based on juror 31's prior

11
criminal cases having been prosecuted in Suffolk County, and

that some of those cases involved drugs and a dangerous weapon.

The defendant objected that the Commonwealth's challenge was

based on juror 31's race. The trial judge allowed the

Commonwealth's challenge. The prosecutor's concern regarding

the defendant's failure "to disclose prior involvement with the

court system . . . [was] a legitimate one." Commonwealth v.

Scott, 98 Mass. App. Ct. 843, 848 (2020). Thus, the trial judge

did not abuse her discretion.

iii. Juror 71. Juror 71, a Black man, stated that he had

been arrested for driving with a suspended license and for a

domestic dispute with his wife in Boston. The Commonwealth

exercised a peremptory, which the defendant challenged as

impermissibly based on race. The trial judge found that the

defendant made a prima facie case, and the Commonwealth

explained the challenge was based on juror 71's prior "arrests

in criminal cases in Suffolk County." The trial judge overruled

the defendant's objection after implicitly finding the

Commonwealth's reason was genuine and adequate, stating, "I'm

accepting that [this] has nothing to do with [juror 71's] race."

Given juror 71's experience with the law in Suffolk County, the

judge did not abuse her discretion by denying the defendant's

Batson-Soares challenge. See Commonwealth v. Lopes, 478 Mass.

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593, 601 (2018) (prospective juror's "two significant

experiences with the law provided a sufficient and obvious basis

for the prosecutor's peremptory challenge").

4. Sentencing. The defendant asserts that his sentence of

fifteen to twenty years in State prison should be revised due to

the disparity between his sentence and Greene's sentence, which

was ten to twelve years in State prison. We disagree.

The proper vehicle for the defendant to request the

revision of his sentence is Mass. R. Crim. P. 29 (a) (2), as

appearing in 489 Mass. 1503 (2022) -- not a motion for a new

trial pursuant to Mass. R. Crim. P. 30, as appearing in 435

Mass. 1501 (2001).

"Rule 29 (a) (2) provides that '[t]he trial judge, upon the
judge's own motion, or the written motion of a defendant,
filed within sixty days after the imposition of a sentence
or within sixty days after issuance of a rescript by an
appellate court on direct review, may, upon such terms and
conditions as the judge shall order, revise or revoke such
sentence if it appears that justice may not have been
done.'"

Commonwealth v. Tejeda, 481 Mass. 794, 795-796 (2019), quoting

Mass. R. Crim. P. 29 (a) (2). The "sixty-day time period

established in the rule is absolute and may not be extended."

Commonwealth v. Callahan, 419 Mass. 306, 308 (1995). See

Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003) (Rule 29

motion to revise and revoke subject to "jurisdictional

requirement that it be filed within sixty days after

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sentencing," and "judge cannot consider such a motion filed

beyond this time frame").

Here, if we construe this portion of the defendant's motion

for a new trial as a Rule 29 motion, his motion fails because it

was untimely, even if we take the latest of three possible dates

to trigger this deadline, this court's rescript on the

defendant's direct appeal issued on January 15, 2021. As a

result, the defendant needed to file a proper Rule 29 motion by

March 16, 2021, or sixty days after issuance. The defendant

filed his renewed motion for a new trial on May 21, 2024 -- over

three years later.5 Thus, the defendant's motion was untimely,

and the motion judge correctly found that he did not have

jurisdiction to consider it.6

In any event, the defendant's argument would fail on the

merits. The defendant argues that there was an unjust disparity

5 The defendant did not argue that his sentences should be
reduced in his initial motion for a new trial.

6 As the motion judge noted, the defendant did file a motion
to revise or revoke his sentence pursuant to Rule 29 (a) (2) in
April 2019. However, that motion did not satisfy the
jurisdictional requirements of Rule 29 (a) because it contained
no reason that the defendant's sentence should be revised, and
the defendant never filed an affidavit accompanying the motion.
See DeJesus, 440 Mass. at 152 (judge does not have jurisdiction
to consider Rule 29 [a] motion that is not accompanied by
affidavit or does not otherwise indicate grounds on which it is
based).

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between his fifteen-to-twenty-year sentence and Greene's ten-to-

twelve-year sentence. See Tejeda, 481 Mass. at 796 ("judge may

take into account a disparity among the sentences of

codefendants"). Here, the defendant was sentenced after being

convicted by a jury of the crime of armed and masked robbery.

After the Commonwealth dismissed a habitual offender charge, the

Commonwealth and the defendant jointly recommended a sentence of

fifteen to twenty years, which the trial judge imposed. In

contrast, Greene accepted responsibility and pleaded guilty.

Moreover, the defendant's claim that Greene had a significant

criminal record is not supported by the record. We discern no

error.7

7 Where none of the defendant's arguments raised a
substantial issue, we conclude that the defendant was not
entitled to a hearing on his motion for a new trial. See
Commonwealth v. Scott, 467 Mass. 336, 344 (2014) ("judge . . .
must hold an evidentiary hearing only if the affidavits or the
motion itself raises a 'substantial issue' that is supported by
a 'substantial evidentiary showing'" [citation omitted]).

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Conclusion. We conclude that that defendant has not

established any errors and we discern no miscarriage of justice.

Order denying motion for new
trial and renewed motion
for new trial, or in the
alternative a new
sentencing hearing,
affirmed.

By the Court (Henry, Shin &
Toone, JJ.8),

Clerk

Entered: May 8, 2026.

8 The panelists are listed in order of seniority.
16