Commonwealth v. William Berry.

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

22-P-1177

COMMONWEALTH

vs.

WILLIAM BERRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2016, after a jury trial, the defendant was convicted of

aggravated rape, aggravated burglary, and breaking and entering

in the nighttime with intent to commit a felony. In 2021, the

defendant filed a motion for new trial. In 2022, after a

nonevidentiary hearing before a Superior Court judge, who was

not the trial judge, the motion was denied. In the defendant's

consolidated appeals from his convictions and from the denial of

his motion for new trial, the defendant claims that he received

ineffective assistance of counsel; that the evidence was

insufficient to prove the break-in occurred in the nighttime;

that there were errors in the prosecutor's opening statement,

cross-examination of the defendant, and closing argument; that
certain convictions were duplicative;1 and that the trial judge

abused his discretion by declining to allow the defendant to

stipulate that he had sexual intercourse with the victim in lieu

of having the Commonwealth present deoxyribonucleic acid (DNA)

evidence. We affirm in part, reverse in part, and remand for

resentencing.

1. Ineffective assistance of counsel. In his motion for

new trial, the defendant claimed that his trial counsel provided

ineffective assistance by failing to consult experts to support

a defense that the victim consented to have sex with him but

could not recall having done so due to the effects of

intoxication on memory. In support of his motion, the defendant

submitted affidavits from a Florida psychiatrist,2 a

psychologist, and his trial counsel. In a supplemental filing,

the defendant added an affidavit from a third doctor as a

substitute for the Florida psychiatrist, who had retired. As

the motion judge determined, the defendant's claim lacks merit.

We review the denial of a motion for new trial "to

determine whether there has been a significant error of law or

other abuse of discretion." Commonwealth v. Grace, 397 Mass.

303, 307 (1986). Where the defendant claims ineffective

1 The judge who decided the defendant's motion for new trial
declined to address this issue.

2 This affidavit is not in the record before us.

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assistance of counsel, a new trial is warranted only if the

defendant shows that "there has been serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer -- and, if that is found, then,

typically, whether it has likely deprived the defendant of an

otherwise available, substantial ground of defence."

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

defendant bears the burden of proving any fact that is not

supported by the trial record. See Commonwealth v. Watson, 455

Mass. 246, 256 (2009); Commonwealth v. Comita, 441 Mass. 86, 93

(2004); Commonwealth v. Schand, 420 Mass. 783, 788 n.1 (1995).

As stated above, the defendant claims that trial counsel's

failure to consult experts on intoxication and its effect on

memory was ineffective. By not pursuing such a theory, the

defendant claims, trial counsel deprived him of the defense that

he might reasonably have perceived the victim to be capable of

consent even though she was experiencing an alcohol-induced

blackout. This, in turn, might have prevented the Commonwealth

from carrying its burden to show that the defendant knew or

should have known the victim lacked the capacity to consent to

sexual intercourse due to her intoxication.

"An attorney's tactical decision amounts to ineffective

assistance of counsel only if it was manifestly unreasonable

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when made." Commonwealth v. Frank, 433 Mass. 185, 190 (2001),

quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999).

Under the first prong of Saferian, "[i]f the record reveals

sound tactical reasons for counsel's decisions, an ineffective

assistance of counsel claim will not succeed." Commonwealth

v. Gonzalez, 443 Mass. 799, 809 (2005). "The critical inquiry

is whether counsel's choice was an informed and reasonable

decision; a consideration to be assessed in light of his over-

all representation of the defendant at the trial." Frank, supra

at 192.

We conclude that trial counsel's decision to not call

expert witnesses on memory and intoxication was not manifestly

unreasonable. The defendant's trial counsel averred that he was

"very familiar with the literature and research involving

perception and memory," had used experts on these subjects in

prior cases, and "gave serious consideration to the pros and

cons" of calling such witnesses in the defendant's case. Even

with his familiarity with the subjects, trial counsel decided to

not call such witnesses because he feared the experts would have

been subject to potentially damaging cross-examination.

This case stands on a different footing from cases where

defense counsel was ineffective for not having his own client

evaluated by a mental health expert where counsel had notice of

a potential issue of lack of criminal responsibility. See,

4
e.g., Commonwealth v. Roberio, 428 Mass. 278, 279-280 (1998).

The experts the defendant now proposes, who did not interview

the victim, could have offered only general testimony about the

effects of intoxication on cognitive function and memory based

on the facts of this case. Moreover, as the defendant's trial

counsel noted in his affidavits, calling an expert who would

state that a person could be so intoxicated that she could

experience a blackout would run the risk of highlighting the

Commonwealth's evidence that the victim was so intoxicated that

she was incapable of consenting to sex. See Frank, 433 Mass. at

191 (not ineffective for counsel to choose not to use

intoxication expert because he feared potentially damaging

cross-examination).3

Even if trial counsel's choice was manifestly unreasonable,

the defendant cannot satisfy the second prong of Saferian, i.e.,

that he was deprived of a substantial ground of defense. The

essence of the defendant's posttrial theory is that the proposed

experts would have permitted the jury to reconcile the

defendant's account with the victim's, without the defendant

having to maintain that the victim had lied. Here again, as the

motion judge noted, neither expert would have been permitted to

3 Also, calling an expert on intoxication and memory would have
undermined the reasonable ground of defense that trial counsel
did pursue, i.e., that the victim consented to having sex with
the defendant but regretted that decision in the morning.

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opine on the victim's state of intoxication and how it affected

the accuracy of her memory. Admissible expert opinion requires

that the scientific theory on which the expert relies must be

able to be "applied to the particular facts of the case in a

reliable manner." Commonwealth v. Polk, 462 Mass. 23, 31

(2012). That would not have occurred here. In fact, the

experts could have testified only about the general

characteristics of blackouts and manipulated memory; they could

not have properly opined that the victim exhibited these

characteristics. The defendant has merely proposed an

alternative defense theory of how his case could have been

tried. But that does not establish that the reasonable theory

on which it was tried, even though it failed, was the result of

ineffective assistance. See Commonwealth v. Denson, 489 Mass.

138, 152 (2022).

2. Sufficiency of the evidence of nighttime. The

defendant claims there was insufficient evidence to establish

that the break-in at the victim's apartment occurred in the

nighttime, as required for convictions under G. L. c. 266,

§§ 14, 16, and G. L. c. 265, § 22 (a). We disagree.

"When analyzing whether the record evidence is sufficient

to support a conviction, an appellate court is not required to

'ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.' Commonwealth v.

6
Hartnett, 72 Mass. App. Ct. 467, 475 (2008), quoting . . .

Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152

(1999). . . . Rather, the relevant "question is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979),

quoting . . . Jackson v. Virginia, 443 U.S. 307, 319 (1979)."

Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009). We

add that "circumstantial evidence is competent to establish

guilt beyond a reasonable doubt." Commonwealth v. Bush, 427

Mass. 26, 30 (1998). See Commonwealth v. Casale, 381 Mass. 167,

173 (1980) ("inferences drawn by the jury need only be

reasonable and possible and need not be necessary or

inescapable").

Pursuant to G. L. c. 278, § 10, "night time" is defined as

"the time between one hour after sunset on one day and one hour

before sunrise on the next day." Direct evidence of the time of

a break-in is not required to prove the element of "night time."

See Commonwealth v. Bennett, 424 Mass. 64, 67-69 (1997).

Here, the jury properly could infer that the break-in

occurred several hours after sunset in the early morning of

August 24, 2014, and at least one hour before sunrise. See

Commonwealth v. Kingsbury, 378 Mass. 751, 754-755 (1979) (jury

7
may rely on general knowledge to determine sunset). In Bennett,

the Supreme Judicial Court concluded, based on a medical

examiner's testimony that "it would not be unreasonable to

estimate the time of death as occurring between 2 and 5 A.M.,"

that "[t]he evidence most favorable to the Commonwealth is that

death could have occurred at approximately 2 A.M." Bennett, 424

Mass. at 68. Here, likewise, the defendant entered the victim's

apartment after 2:15 A.M., when the victim's friend fell asleep,

and before 7 A.M., when the victim woke up to find the defendant

in her bed; the evidence most favorable to the Commonwealth is

that the defendant's entry could have occurred shortly after

2:15 A.M., more than an hour before the sun rose at 6 A.M. that

day. This conclusion is further buttressed by the simple

commonsense inference that, to avoid detection, the defendant

would aid his crime with the guise of darkness. See Kingsbury,

supra. See also Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32

(1976) ("Whether an inference is warranted or is impermissibly

remote must be determined, not by hard and fast rules of law,

but by experience and common sense"). While one could

reasonably draw the inference that the break-in did not occur at

night, that is of no avail to the defendant because "[t]o the

extent that conflicting inferences are possible from the

evidence, 'it is for the jury to determine where the truth

8
lies.'" Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981),

quoting Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978).

Even if the evidence was insufficient to establish "night

time" as it is defined in G. L. c. 278, § 10, the defendant's

conviction for aggravated rape would not be affected. Breaking

and entering in the daytime, G. L. c. 266, § 18, is also among

the predicate crimes listed in G. L. c. 265, § 22 (a), that

qualify as offense-aggravating factors. In Commonwealth v.

Sitko, 372 Mass. 305, 307-308 (1977), the Supreme Judicial Court

explained that:

"a verdict of breaking and entering in the daytime may be
entered on an indictment charging breaking and entering in
the nighttime. We have treated breaking and entering in
the daytime in effect as a lesser offense within the
aggravated offense of breaking and entering in the
nighttime. . . Therefore, an amendment of the indictment
in this case was not even necessary in order to sustain a
charge and conviction of breaking and entering in the
daytime."

Contrary to the defendant's claim, breaking and entering in the

daytime would have properly been before the jury, see id., even

without the amendment to the indictment, which is what occurred

here. Indeed, where a conviction must be vacated based on

insufficient evidence or some other error, reducing the

conviction to a lesser included offense does not offend the

principle of trial by jury because, "[b]y convicting the

defendant of [the greater offense], the jury necessarily

concluded that the defendant had [committed the lesser

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offense]." Commonwealth v. Trotto, 487 Mass. 708, 715 (2021).

Given that the Commonwealth's evidence, at the very least,

supported the defendant's conviction for breaking and entering

in the daytime, his conviction for aggravated rape was proper.4

3. The prosecutor's challenged remarks. The defendant

challenges a variety of remarks the prosecutor made during her

opening statement, cross-examination of the defendant, and

closing argument. These claims lack merit, as the remarks were

either proper, cured by instructions, or did not create a

substantial risk of a miscarriage of justice.

The first claimed improper remark, in the prosecutor's

closing argument, was that the defendant "had the benefit of

hearing the evidence over the past two days." This claim was

preserved. The Commonwealth argues that this case is unlike

Commonwealth v. Person, 400 Mass. 136, 139-140 (1987), and

Commonwealth v. Alphonse, 87 Mass. App. Ct. 336, 337-339 (2015),

on which the defendant relies, because the instant defendant

made statements to the police, whereas the defendants in Person

and Alphonse did not. While it is true that a prosecutor is

4 The cases relied on by the defendant, Dunn v. United States,
442 U.S. 100 (1979), and Commonwealth v. Mills, 436 Mass. 387
(2002), did not involve lesser included offenses, and
Commonwealth v. Pfeiffer, 492 Mass. 440 (2023), addressed a
judge's discretion to reduce a verdict under Mass. R. Crim. P.
25 (b) (2), as amended, 420 Mass. 1502 (1995), which is not an
issue before us.

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free to point out that a defendant's trial testimony did not

match his prior statements to the police, and that it instead

conformed to the Commonwealth's evidence, see Commonwealth v.

Mendez, 476 Mass. 512, 521 (2017), abrogated on other grounds by

Commonwealth v. Privette, 491 Mass. 501 (2023), we need not

decide if the argument was erroneous. Here, the trial judge

negated any risk of prejudice to the defendant with a

contemporaneous instruction to the jury to "strike any reference

to the benefit of the defendant hearing the evidence," and that

the defendant had "a Constitutional right to be present during

the trial." The jury is presumed to have followed these

instructions. See Commonwealth v. Gonzalez, 465 Mass. 672, 681

(2013).5 The request for a mistrial was properly denied.

The defendant also claims the prosecutor made an improper

appeal to sympathy for the victim and her rights by telling the

jury that the victim was a "person," "woman," "student,"

"teacher," "sister," and "daughter," who had a right to decide

who could enter "her bedroom," and "who went into her body that

night[,] [a]nd [the defendant] took that right from her." These

statements were objected to by the defendant. In any event, the

argument was not improper, as the prosecutor was permitted "to

5 Contrary to the defendant's claim, the judge did not contradict
this instruction with a later more general, unobjected-to
instruction regarding witness perception.

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tell the jury something of the [victim] in order to humanize the

proceedings." Commonwealth v. Sanders, 101 Mass. App. Ct. 503,

512 (2022), quoting Commonwealth v. Santiago, 425 Mass. 491, 495

(1997), S.C., 427 Mass. 298, and 428 Mass. 39, cert. denied, 525

U.S. 1003 (1998). Also, the trial judge instructed the jury not

to "consider any arguments that invoke sympathy" and reiterated

in the final jury charge that "[e]motion or sympathy, passion or

prejudice have no place in your deliberations." There was no

unfair prejudice.

Next, the defendant claims error in the prosecutor's

opening statement, which referred to the victim's front door as

"an entranceway for evil." No objection was lodged to this

remark. This remark can be fairly characterized as

"'enthusiastic rhetoric, strong advocacy, and excusable

hyperbole,' [but] it is not grounds for reversal" (citation

omitted). Commonwealth v. Henley, 488 Mass. 95, 131 (2021).

Even if the characterization was improper, the trial judge's

instruction regarding not rendering a verdict based on sympathy

or emotion prevented any substantial risk of a miscarriage of

justice from occurring.6

6 The defendant also claims that the prosecutor vouched for the
victim's credibility in her opening statement by noting that the
victim is "going to raise her right hand and she's going to
swear to tell you the truth, the whole truth, and nothing but
the truth." There was no objection. In any event, this was not
vouching, as the prosecutor did not express any personal

12
The defendant further claims (without having objected at

trial) that it was improper for the prosecutor to ask him on

cross-examination, relative to his DNA match, whether he had

told the police that "the Chinese girl who works in the lab must

have made a mistake." Although the question revealed a racially

insensitive comment by the defendant, the question itself was

relevant to his credibility, as it was reference to how his DNA

was found in the victim. To the extent his statement reflected

poorly on the defendant, it was his own doing. There was no

error.

As the Commonwealth acknowledges, the closest the

prosecutor came to an improper argument was when she stated,

without objection, that the victim endured the scrutiny of the

trial:

"[The victim] entered this courtroom. She raised her right
hand. She confronted her rapist. She sat in a room full
of strangers. She endured questions about the worst day of
her life. And [defense counsel] has just asked you to
scrutinize her[:] [t]o scrutinize her for making coffee[;]
[t]o scrutinize her for taking a shower[;] [t]o scrutinize
her for not screaming loud enough[;] [and] [t]o scrutinize
her for not running out her front door toward her rapist."

However, the prosecutor did not argue that the victim's decision

to testify in court made her credible. Contrast Commonwealth v.

knowledge of the victim's veracity. See Commonwealth v.
Silvelo, 486 Mass. 13, 20 (2020), abrogated on other grounds by
Commonwealth v. Desiderio, 491 Mass. 809 (2023). There was no
error, and thus no risk that justice miscarried.

13
Cruz, 98 Mass. App. Ct. 383, 390-392 (2020). Instead, the

prosecutor's argument was an attempt to lay out some of the

circumstances through which the jury could assess the victim's

credibility and, more specifically, to counter defense counsel's

suggestion in closing argument that the victim's matter-of-fact

approach showed she was lying.7 Even if the remarks were

erroneous, the error did not create a substantial risk of a

miscarriage of justice where the Commonwealth's case was very

strong and did not depend solely on the victim's credibility.

4. Duplicative convictions. We agree with the parties

that the trial judge should have dismissed both the aggravated

burglary and the breaking and entering convictions because the

latter is duplicative of the former, see Commonwealth v. Thomas,

21 Mass. App. Ct. 183, 187-188 (1985), and both are duplicative

of the conviction for aggravated rape. Because the defendant

was sentenced to a consecutive sentence of probation on the

aggravated burglary conviction, the case must be remanded to the

Superior Court for resentencing.

7 We are unpersuaded by the defendant's claim that the
prosecutor, by mentioning defense counsel, was improperly
disparaging counsel for doing his job. The prosecutor's comment
was just as easily understood as simply identifying the point to
which the prosecutor's argument responded. Defense counsel's
lack of objection is telling. See Commonwealth v. Toro, 395
Mass. 354, 360 (1985).

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5. Motion to exclude DNA evidence. Finally, the defendant

claims that the trial judge abused his discretion by denying his

motion to exclude the DNA evidence that linked him to the

aggravated rape, and to instead permit the defendant to

stipulate that he had sexual intercourse with the victim. We

disagree.

Contrary to the defendant's claim, neither the prosecutor

nor the judge relied on Old Chief v. United States, 519 U.S. 172

(1997), in support of the premise that a defendant cannot

prevent the Commonwealth from introducing relevant evidence by

agreeing to stipulate to the fact the evidence is being offered

to prove. In any event, in Old Chief, the United States Supreme

Court held that "the accepted rule that the prosecution is

entitled to prove its case free from any defendant's option to

stipulate the evidence away rests on good sense." Id. at 189.8

The reason is that the Commonwealth must do more than provide

evidence of the defendant's guilt -- it must prove him guilty of

the charged crimes beyond a reasonable doubt. See id. at 188-

189; Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 83 (2011) ("A

party may not preclude the admission of relevant [evidence] by

agreeing to stipulate to the fact that the offered evidence

8 The exception to this rule pertains to proof of prior
convictions, which is not applicable to this case. See id. at
190.

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tends to prove"). There was neither error, nor an abuse of

discretion.

6. Conclusion. On the indictments charging aggravated

burglary and breaking and entering in the nighttime with intent

to commit a felony, the judgments are reversed, the verdicts are

set aside, and the indictments are to be dismissed. On the

indictment charging aggravated rape, the verdict shall stand,

the sentence is vacated, and the case is remanded to the

Superior Court for resentencing. The denial of the defendant's

motion for new trial is affirmed.

So ordered.

By the Court (Meade,
Massing & Sacks, JJ.9),

Assistant Clerk

Entered: January 18, 2024.

9 The panelists are listed in order of seniority.

16