Commonwealth v. Brian Vines.

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-1257

COMMONWEALTH

vs.

BRIAN VINES.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

was convicted of several offenses stemming from an armed

robbery.2 He also was charged and subsequently convicted of

committing these crimes as a habitual offender under G. L.

c. 279, § 25. While his appeal was pending, he filed a motion

to correct his sentences and a motion for a new trial. We have

consolidated the defendant's direct appeal with his appeals from

1 Also known as Brian K. Davis.

2The defendant was convicted of assault, as a lesser
included offense of armed assault with intent to murder, armed
assault with intent to rob a person over the age of sixty,
assault and battery on an elderly or disabled person causing
serious bodily injury, armed robbery, and aggravated assault and
battery by means of a dangerous weapon. He was acquitted of
armed home invasion.
the orders on these posttrial motions.3 We affirm the judgments

of conviction and the orders on the postconviction motions.

Background. The victim was sixty-two years old and living

alone in the home where she had resided for about forty years

when the defendant knocked on her door under the pretext that he

wanted to contact her son, a childhood friend. The victim

recognized the defendant and wrote down her son's telephone

number for him. As the victim was getting the number, the

defendant gained entrance into the victim's house. He then

robbed, beat, and stabbed her. The assault was brutal. The

victim suffered serious injuries including a foot-long

laceration to her back and a slit throat. When the defendant

left the premises, with only the victim's automated teller

machine (ATM) card as she had little cash on hand, the victim

managed to crawl to her phone and call the police. The victim

identified the defendant by name to the police and,

subsequently, to hospital personnel as well.4 The Commonwealth

also introduced evidence that the defendant used the victim's

3 The defendant's notices of appeal also list other orders,
including the order denying his second motion for a new trial,
but the defendant makes no arguments about those orders and we
do not further discuss them.

4 The victim knew the defendant by the name Brian Davis.
There is no dispute that Brian Davis and Brian Vines are the
same person. At trial, the defendant testified that his name is
"Brian Davis Vines."

2
ATM card to withdraw money shortly after he left the victim's

home and that forensic testing of samples of bloodstains taken

from the defendant's clothing and sneakers revealed the presence

of the victim's deoxyribonucleic acid (DNA). The defendant

testified at trial and admitted that he was at the victim's

house but claimed that he was with another man. The defendant

testified that the victim gave him her ATM card to make a

withdrawal and the other man was responsible for the attack on

the victim.5

After the jury returned its verdict, the defendant was

arraigned on the habitual offender counts of the indictments.

The defendant waived his right to a jury trial and a bench trial

ensued before the same judge who had presided over the jury

trial. The judge found the defendant guilty on all counts. The

judgments of conviction were consolidated for sentencing and, as

relevant here, the judge imposed a life sentence on the

conviction of armed robbery as enhanced by the conviction on the

corresponding habitual offender count of the indictment.

About four years later, the defendant filed a motion to

correct the life sentence referenced above.6 The trial judge

5 We include additional relevant facts where necessary to
provide context for our discussion of the issue.

6 The defendant also sought to correct the ten-year sentence
imposed on his conviction of assault and battery on an elderly
person as enhanced under the habitual offender conviction. The

3
allowed the motion and amended the life sentence to "no more

than life but not less than 25 years." Due to the retirement of

the trial judge, the amended sentence was imposed by a different

judge of the Superior Court (second judge). The defendant then

filed a motion for a new trial, which the second judge denied.

Discussion. On direct appeal from the judgments of

conviction, the defendant argues that (1) the trial judge abused

his discretion by not excusing a juror for cause who, the

defendant claims, revealed racial bias against Black men (the

defendant is a Black man) and that trial counsel was ineffective

for not using a peremptory challenge to excuse that juror;

(2) the prosecutor twice mischaracterized the DNA evidence in

her closing argument thereby creating a substantial risk of a

miscarriage of justice; and (3) the amended sentence is illegal

because the second judge did not exercise his discretion when he

imposed it. The defendant advances the same arguments in

support of his new trial motion and further argues that the

second judge erred in denying the motion without conducting an

evidentiary hearing, as requested. For the reasons that follow,

we affirm the convictions, conclude that the sentence at issue

is not illegal, and affirm the order denying the motion for a

new trial.

judge amended that sentence with no objection from the
Commonwealth. That sentence is not challenged on appeal.

4
1. Failure to excuse juror no. 3 for cause. During the

empanelment process the trial judge questioned all prospective

jurors individually at sidebar concerning, among other things,

potential bias due to the fact that the alleged victim is white

and the defendant is Black. The defendant claims it was error

for the judge not to sua sponte excuse juror no. 3 for cause

because the juror did not state unequivocally that he could be

impartial. We conclude otherwise.

In relevant part, juror no. 3 responded as follows to

questions posed by the judge and defense counsel. First the

judge asked, "Now, [the defendant] is [B]lack. The alleged

victim . . . is Caucasian. Does the fact that he's [B]lack

affect your ability to be fair and impartial at all?" Juror

no. 3 responded, "No," and the judge then asked, "Do you think

that because [the defendant is] [B]lack that he is more likely

to have committed crimes than a Caucasian male?" To this

question, juror no. 3 replied, "Maybe." The judge then said,

"Maybe. All right, are you willing to decide or can you decide

the case against [the defendant] based solely on the evidence

and on the law as you hear it in this courtroom?" Juror no. 3

responded, "I believe so."

Thereafter, defense counsel followed up with the following

inquiry, "When asked if though a [B]lack man is more likely to

have committed the crime than a white man, you thought for a

5
minute and you said maybe. If I could just ask why you said

maybe?" Juror no. 3 replied, "Because of everything going on in

the country," to which defense counsel said, "Could I ask what

you mean by that?" Juror no. 3 explained,

"There's been so much discussed about the percentages of
crimes and race and comparisons that it has just made it so
-- the argument has been so strong, okay, and the killing
of police officers and all that kind of stuff has really
kind of moved me in this whole circumstance."

Defense counsel then stated, "I have no further questions."

The judge interjected as follows,

"I understand your position on this. We don't expect
jurors to come in here with a blank slate. Everybody has
got their own opinions. The crucial question though is
whether or not you can put aside that conception and decide
the case here, this specific case on whether or not the
Commonwealth can prove beyond a reasonable doubt or will
prove beyond a reasonable doubt that Mr. Vines is guilty of
the charge based only on the evidence and on the law?"

Juror no. 3 said, "I think so." The judge then declared juror

no. 3 to be indifferent. The prosecutor said she was

"[c]ontent" and after consulting with the defendant, defense

counsel said, "Content, Your Honor." Juror no. 3 was then

seated on the jury.

"'We afford a trial judge a large degree of discretion
in the jury selection process' because '[a] trial judge,
who is aware of the facts of a particular case and can
observe firsthand the demeanor of each prospective juror,
is in the best position to determine what questions are
necessary reasonably to ensure that a particular jury can
weigh and view the evidence impartially'" (citations
omitted).

6
Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 826 (2019).

It is clear from our review of the record that the judge took

special care to determine whether each prospective juror was

impartial and juror no. 3 was no exception.7 Significantly,

after defense counsel posed his questions, the judge pressed the

juror further asking, as noted above, whether the juror could

"put aside that conception and decide . . . this specific case

. . . on whether the Commonwealth . . . will prove beyond a

reasonable doubt that [the defendant] is guilty of the charge

based solely on the evidence and on the law," to which the juror

responded, "I think so."8 More was not required. "It is well

settled that a potential juror's use of seemingly equivocal

7 The defendant points to the voir dire of juror no. 2, who
was excused for cause, in support of his argument that juror
no. 3 also should have been excused. However, juror no. 3
ultimately expressed a belief that he could be fair and
impartial while juror no. 2 did not.

8 Citing Commonwealth v. Williams, 481 Mass. 443 (2019), the
defendant argues that the judge abused his discretion in asking
whether the juror could "put aside that conception," because,
according to the defendant, it was "an opinion or world view
based upon his or her life experience or belief system," which a
juror cannot realistically be asked to set aside. Id. at 448.
But in Williams, the juror stated that "the system is rigged
against young African American males," that this was "the lens
that I view the world through," and that "I don't think I can
put it aside." Id. at 444-445. In those circumstances, a judge
should ask "whether, given that particular opinion, the juror
nevertheless is able to be impartial in the case to be tried"
(emphasis added). Id. at 449. Here, in contrast, juror no. 3
did not express any such firmly held, pervasive opinion or world
view as to make such a question necessary.

7
language is not determinative of the juror's ability to be

impartial." Id. at 827 (juror's response to potential bias

against gangs, which included "I think I could," and "No, I

don't think it would," did not warrant excusing the juror for

cause). See Commonwealth v Colton, 477 Mass. 1, 17 (2017)

("Yes, I think so" fairly viewed as unequivocal).9 In the

circumstances presented, we discern no abuse of discretion.

The defendant next argues that trial counsel should have

used a peremptory challenge to exclude juror no. 3 and that his

failure to do so deprived the defendant of the effective

assistance of counsel. This claim was advanced in support of

the defendant's motion for a new trial and was rejected by the

second judge who conducted a careful review of the record and

properly evaluated the claim under the familiar two prong test

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

We reach the same conclusion and, consequently, we also conclude

that the new trial motion was properly denied on this ground.

9 Commonwealth v. Clark, 446 Mass. 620 (2006), on which the
defendant relies is distinguishable. In that case the Supreme
Judicial Court held that the judge erred in refusing to excuse a
juror for cause where that juror said that she believed African-
Americans as a group were more likely to commit crimes because
of their economic status. See id. at 628-630. The juror then
said she could be impartial, but when pressed for an
explanation, she said her impartiality would depend on the
person's circumstances. See id. at 630.

8
In order to prevail on a claim of ineffective assistance,

the defendant must show "serious incompetency, inefficiency, or

inattention of counsel -- behavior of counsel falling measurably

below that which might be expected from an ordinary fallible

lawyer," and that counsel's poor performance "likely deprived

the defendant of an otherwise available, substantial ground of

defence." Saferian, 366 Mass. at 96, and cases cited. In

addition, "[i]f the defendant argues that counsel's strategy or

tactics were faulty, he must show that the challenged tactical

judgments were 'manifestly unreasonable.'" Commonwealth v.

Pagels, 69 Mass. App. Ct. 607, 616 (2007), quoting Commonwealth

v. Gonzalez, 443 Mass. 799, 809 (2005). In an effort to meet

his burden, the defendant submitted an affidavit in which he

claimed that trial counsel failed to inform him of the entirety

of juror no. 3's responses to the questions posed during the

voir dire. The defendant further averred that had his attorney

informed him that juror no. 3 had replied "maybe" to the

question whether a Black person was more likely to commit a

crime that a white person he "would have instructed [his

attorney] to exercise a peremptory challenge" on juror no. 3.

Trial counsel submitted an affidavit contradicting the

defendant's version of events. He averred that on review of the

transcripts of the trial, he "recall[ed] that [he] paid close

attention to juror no. 3's responses" and formed the opinion

9
that the juror would be a "conscientious and attentive juror."

Specifically, counsel asserted that he advised the defendant

that juror no. 3 had responded "maybe" but given his subsequent

responses, counsel advised the defendant that they should keep

the juror. The second judge credited trial counsel's affidavit,

noting that it provided a "more accurate and truthful"

recitation than that of the defendant. The second judge further

concluded that counsel had made an informed strategic decision

to keep juror no. 3 and to preserve the defendant's peremptory

challenges for later use. That decision, according to the

second judge, was not "manifestly unreasonable" when undertaken.

As noted, we agree with the second judge's reasoning and

conclusion.10 Based on our review of the record, we cannot say

that counsel's conduct fell below the standard expected of an

ordinary, fallible lawyer. And, even if we were persuaded that

the defendant met his burden under the first prong of the test

10We further conclude that the second judge did not abuse
his discretion in not holding an evidentiary hearing. The
second judge was not the trial judge; however, as noted, he
conducted a careful review of the entire record, and concluded
that the conflicting accounts set forth in the affidavits of
counsel and the defendant did not create a substantial issue
requiring an evidentiary hearing. See Commonwealth v. Denis,
442 Mass. 617, 628-634 (2004) (decision by motion judge, who was
not trial judge, that evidentiary hearing was not required was
not abuse of discretion). Although we have conducted an
independent review of the record, we agree with the motion
judge's assessment that an evidentiary hearing was not
necessary.

10
under Saferian, there is no basis on which we can say that the

failure to exercise a peremptory challenge on juror no. 3

deprived the defendant of an otherwise available defense as the

defendant has not shown that he was deprived of a fair and

impartial jury. See Commonwealth v. Berardi, 88 Mass. App. Ct.

466, 476 (2015), and cases cited. Additionally, we note that

the trial judge forcefully instructed the jury that they "may

not be influenced by any bias . . . against . . . the defendant"

and that "prejudice [had] no place in [their] deliberations."

That the jury followed this instruction and returned a verdict

based only on the evidence is supported by the fact they

returned a not guilty verdict on the charge of armed home

invasion. See Commonwealth v. Gerhartsreiter, 82 Mass. App. Ct.

500, 508 n.5 (2012) ("We also note that the jury ultimately

acquitted the defendant of two of the charges against him,

indicating, to some extent, that they focused their attention on

the evidence presented in the case and were not swayed by

prejudice").

2. Prosecutor's closing argument. During the course of

the investigation, the police seized clothing and sneakers from

the defendant. The items contained bloodstains that were tested

by a forensic scientist at the State police crime laboratory for

the presence of the victim's DNA. The forensic scientist, who

testified as the Commonwealth's expert, explained that samples

11
of the bloodstains from the defendant's shirt, shorts, and

sneakers contained DNA with an extremely high statistical

probability that it belonged to the victim.11 The expert further

explained that the statistical probability that the DNA belonged

to someone other than the victim was one in 13.41 billion for

"Caucasians" with regard to the sample from the defendant's

shirt, one in 11.61 quadrillion for "Caucasians" with regard to

the sample from the exterior of the defendant's shorts, one in

1.060 quadrillion for "Caucasians" with regard to the sample

from inside the pocket of the defendant's shorts, and one in

72.62 trillion for "Caucasians" with regard to the sample from

the defendant's sneakers. In her closing, the prosecutor

referred to the DNA evidence and said,

"His clothing and his sneakers have her blood, her DNA.
The shirt one in 13 billion chance it's somebody else's.
The shorts one in 11.6 million. Shorts inside pocket one
in quadrillion -- one in one quadrillion. The sneakers,
one in 72 trillion. That's the scientific testing that
corroborates [the victim's] testimony, [the victim's] prior
identifications[,] and all of the other evidence in this
case."

There was no objection and therefore we review the

defendant's claim to determine if there was error and, if so,

whether it created a substantial risk of a miscarriage of

justice. See Commonwealth v. Souza, 492 Mass. 615, 635 (2023).

11In some instances the testing of the samples also
revealed the presence of DNA from an unknown contributor from
which no comparison could be made.

12
We discern no error. The prosecutor correctly recited the

statistical evidence as it was presented by the Commonwealth's

expert albeit in slightly different words. Furthermore, even if

we were to assume, which we do not, that the prosecutor's

comments were susceptible of being misleading, any error did not

create a substantial risk of a miscarriage of justice where, as

here, the jury was forcefully instructed on three occasions that

closing arguments do not constitute evidence. See id. at 636.

Next, also for the first time on appeal, the defendant

challenges the prosecutor's comment regarding the bloodstain

inside the pocket of the defendant's shorts. With respect to a

sample from this bloodstain the expert testified, "That would

have to indicate that the DNA was transferred by either her or

if someone came into contact with an item that was transferred

into a pocket or from a certain individual." In reference to

this testimony, the prosecutor stated,

"Recall the testimony of . . . [the forensic scientist],
about the significance of the blood inside his pocket.
That is compelling, ladies and gentlemen. Her blood, her
DNA, inside this man's pocket. It didn't get there from
someone else on the outside. Did he put a bloody weapon in
there? Did he put a bloody hand in there? Inside the
pocket compelling DNA scientific evidence of his guilt."

We discern no error as the prosecutor did not misstate the

evidence. Rather, she asked the jury a series of rhetorical

13
questions that had a basis in fact.12 Additionally, as noted

above, any potential for error was sufficiently mitigated by the

judge's instructions to the jury.

3. Motion to correct sentence under G. L. c. 279, § 25.

The trial judge recognized that he had improperly sentenced the

defendant to a life sentence as provided by G. L. c. 279,

§ 25 (b), and that he instead should have sentenced the

defendant under § 25 (a), which in conjunction with § 24,

requires that "[i]n the case of a sentence to life imprisonment,

. . . the court shall fix a minimum term which shall be not less

than 15 years nor more than 25 years." G. L. c. 279, § 24. The

judge's order then stated that the defendant "shall be sentenced

. . . to no more than life but not less than 25 years to MCI-

Cedar Junction." The order is dated December 16, 2020, and was

entered on the docket on January 4, 2021. A corrected mittimus

reflecting the amended sentence was issued on June 2, 2021.

Although the trial judge issued an order imposing a new

sentence and a corrected mittimus was issued, the case was

12The defendant also claims that trial counsel was
ineffective for failing to object to these comments. Given our
conclusion, it is evident that the defendant would not have
fared any better had trial counsel objected. As the
Commonwealth notes in its brief, "if an omission of counsel does
not present a substantial risk of a miscarriage of justice
. . . , there is no basis for an ineffective assistance of
counsel claim under either the Federal or State Constitutions."
Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).

14
scheduled for a sentencing hearing which took place on May 21,

2021. As previously noted, the trial judge had retired by this

time and the second judge presided over the hearing. At the

beginning of the hearing, the second judge acknowledged the

trial judge's order "indicated what this defendant's sentence

would be, as revised," and informed the parties that he believed

he had no "leeway" to do anything but impose the new sentence

the trial judge had ordered. The second judge went on to

explain, "[The trial judge's] decision specifically says that

. . . on Counts 7 and 8, he says that defendant shall be

sentenced . . . to no more than life, but not less than 25

years . . . . It's not as though he left the issue unresolved.

He made an order." At the conclusion of the hearing, the second

judge further stated,

"I have spent some time reviewing the file, and I've read
[the trial judge's] decision and I would agree with it, and
I would adopt it. . . . So to the extent that I have any
discretion, I agree with [the trial judge] in these
circumstances, so I would impose the same sentence."

The defendant contends that the second judge had discretion

to impose a different sentence and because he failed to exercise

that discretion the sentence he is serving is illegal despite

the correction made by the trial judge. To begin with, the

sentence, as amended by the trial judge, was not illegal if for

no other reason than it does not exceed the statutory maximum.

See Commonwealth v. Walters, 479 Mass. 277, 280-281 (2018). In

15
addition, there is no basis on which to conclude that the trial

judge misunderstood the bounds of his authority. See

Commonwealth v. McGuiness, 421 Mass. 472, 475 (1995). On the

contrary, the trial judge fully understood that his initial

sentence was improper and he corrected it. Given these

circumstances, we, like the second judge, question whether a

resentencing hearing was required. Be that as it may, one was

held, and we discern no error on the part of the second judge.

Even if the second judge had discretion to impose a new

sentence, an issue which we need not address, the second judge

made clear that he had reviewed the record including the

sentencing memorandum filed by counsel and would have imposed

the same sentence as the trial judge.13 Accordingly, we conclude

13No additional hearing was required before the corrected
sentence was imposed. See Mass. R. Crim. P. 28 (b), 378 Mass.
842 (1979). Defense counsel presented argument at the original
sentencing hearing on September 29, 2016, regarding how the
trial judge should exercise his discretion with respect to
§ 25 (a). Although the judge originally concluded that he had
no such discretion, once he concluded otherwise in his December
16, 2020, order, he was not required to afford the defendant
another hearing before exercising it.

16
that the defendant's right to due process was not violated and

the sentence at issue is not illegal.

Judgments affirmed.

Order dated December 16,
2020, on motion to correct
sentences and amended
sentences imposed on May
21, 2021, affirmed.

Order dated December 15,
2021, denying motion for
new trial affirmed.

By the Court (Vuono, Neyman &
Sacks, JJ.14),

Clerk

Entered: May 12, 2026.

14 The panelists are listed in order of seniority.

17