Commonwealth v. Christopher Henry.

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-1301

COMMONWEALTH

vs.

CHRISTOPHER HENRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Christopher Henry, appeals from a

conviction, after a jury waived trial in Superior Court, of

assault and battery by means of a dangerous weapon, G. L.

c. 265, § 15A (b), and from orders of two Superior Court judges

denying his motions for new trial. Concluding that, where the

defendant's newly discovered evidence consists of an eyewitness

who observed that the defendant was unarmed, the defendant is

entitled to an evidentiary hearing on his motion for a new

trial, we vacate the denial of the defendant's second motion for

a new trial.

1. Newly discovered evidence. a. Standard of review.

"Rule 30 (b) of the Massachusetts Rules of Criminal Procedure,
as appearing in 435 Mass. 1501 (2001), authorizes a judge to

'grant a new trial at any time if it appears that justice may

not have been done.'" Commonwealth v. Watkins, 486 Mass. 801,

803-804 (2021). "To prevail on a motion for a new trial based

on new evidence, a defendant must establish 'both that the

evidence is newly discovered [or newly available] and that it

casts real doubt on the justice of the conviction.'"

Commonwealth v. Bonnett, 482 Mass. 838, 844 (2019), quoting

Commonwealth v. Grace, 397 Mass. 303, 305 (1986). "New evidence

will cast real doubt on the justice of the conviction if there

is a substantial risk that the jury would have reached a

different conclusion had the evidence been admitted at trial."

Commonwealth v. Sullivan, 469 Mass. 340, 350 (2014).

The trial judge denied the defendant's first motion for a

new trial, but a different judge (motion judge) denied his

second motion for a new trial which raised, inter alia, his

claim of newly discovered evidence. "Where . . . the motion

judge was not the trial judge, did not conduct an evidentiary

hearing, and instead relied on the trial transcripts,

affidavits, and other documentary evidence, we review de novo

the denial of a motion for a new trial." Commonwealth v. Pope,

489 Mass. 790, 793-794 (2022). Accord Commonwealth v. Duguay,

492 Mass. 520, 531 (2023).

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A motion for a new trial may be denied without an

evidentiary hearing "if no substantial issue is raised by the

motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as

appearing in 435 Mass. 1501 (2001). "In determining whether a

substantial issue exists, 'a judge considers the seriousness of

the issues raised and the adequacy of the defendant's showing on

those issues.'" Commonwealth v. Upton, 484 Mass. 155, 162

(2020), quoting Commonwealth v. Barry, 481 Mass. 388, 401

(2019). "Although a defendant's motion and affidavits 'need not

prove the issue raised,' to be adequate 'they must at least

contain sufficient credible information to cast doubt on the

issue.'" Commonwealth v. Lys, 481 Mass. 1, 5 (2018), quoting

Commonwealth v. Denis, 442 Mass. 617, 629 (2004).

b. Eyewitness account. The evidence at trial was that the

defendant sliced the face of another inmate with a razor blade.

The eyewitness inmate, who saw the altercation, averred that he

"did not see [the defendant] with anything in his hands at any

point." The motion judge found that, although the eyewitness

inmate's affidavit "appears to be newly discovered . . . . it

would not have been a real factor in the case," as the inmate's

account of events was largely contradicted by the officer's

trial testimony. The fact that the inmate's account contradicts

the officer's trial testimony, however, is the very reason that

it might have been valuable to the defendant. See Commonwealth

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v. Smith, 90 Mass. App. Ct. 261, 269 (2016) ("Although it may

very well be that [the inmate's] allegations are not credible,[]

where, as here, the credibility of the affiant cannot be gleaned

solely from the contents of the affidavit, it is only through

the crucible of direct and cross-examination that such a

judgment can be made").

More to the point, the motion judge stated that the

eyewitness's proposed testimony "would not likely be material to

the decision-making process because it is unclear how far away

from the altercation he was." It is, indeed, difficult to tell

from this record how far away the eyewitness was and whether he

had a proper vantage point to make credible observations. Those

difficulties, however, are precisely why an evidentiary hearing

is warranted. The defendant has made an adequate showing that

an eyewitness to the crime observed that he was unarmed.

Whether this eyewitness's testimony would have wilted under

cross-examination or provided enough heft to be a real factor in

the trier of fact's decision-making is something that can be

determined in an evidentiary hearing. See Commonwealth v.

Drayton, 473 Mass. 23, 36 (2015), S.C., 479 Mass. 479 (2018)

(evidentiary hearing required where "affidavit [if admissible]

directly contradicts" sole percipient witness's testimony). We

accordingly vacate the denial of the defendant's second motion

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for a new trial and remand to the Superior Court for an

evidentiary hearing.

c. Other claims of newly discovered evidence. Without

intending to limit the motion judge's consideration on remand of

the second motion for a new trial, we add some observations

about the other claims of newly discovered evidence. We discern

no error in the motion judge's finding that the unit logs were

not newly discovered. Trial counsel's statement that he "did

not seek the unit logs" fails to explain why the logs could not

have been found with reasonable diligence. This is particularly

so where trial counsel requested other documents from the same

correctional facility prior to trial. See Commonwealth v.

Elangwe, 85 Mass. App. Ct. 189, 194-195 (2014).

In support of his motion for new trial, the defendant

proffered a search policy dated June 16, 2021, well after the

2015 assault. It accordingly has no relevance to the charges at

issue. The defendant's speculation about what a contemporary

search policy would have stated is just that. In any event,

even if the defendant was searched upon reentering the unit, he

could have armed himself in the ten minutes between reentry and

the assault. Moreover, even if such a search policy did exist

in 2015, it would not be considered newly discovered evidence as

the defendant fails to explain why trial counsel would not have

been able to discover the contemporaneous policy with reasonable

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diligence.1 See Commonwealth v. Teixeira, 486 Mass. 617, 640

(2021).

2. Ineffective assistance of counsel. a. Standard of

review. "Where a motion for a new trial is based on ineffective

assistance of counsel, the defendant must show that (1) the

'behavior of counsel [fell] measurably below that which might be

expected from an ordinary fallible lawyer' and (2) such failing

'likely deprived the defendant of an otherwise available,

substantial ground of defence.'" Commonwealth v. Tavares, 491

Mass. 362, 365 (2023), quoting Commonwealth v. Saferian, 366

Mass. 89, 96 (1974). "A strategic decision amounts to

ineffective assistance 'only if it was manifestly unreasonable

when made.'" Teixeira, 486 Mass. at 637, quoting Commonwealth

v. Montez, 450 Mass. 736, 754 (2008).

b. Medical expert. The defendant has not shown that trial

counsel's conduct regarding a medical expert fell below that of

an ordinary fallible lawyer. Trial counsel averred that he

tasked his investigator with informally consulting a doctor

about the possible causes of the victim's wounds. This doctor

1 The defendant's corresponding claims that trial counsel's
failure to secure the unit logs or search policy prior to trial
amounts to ineffective assistance of counsel fail as the
defendant has not demonstrated that he was deprived of a
"substantial ground of defense." Commonwealth v. Kolenovic, 471
Mass. 664, 673 (2015), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974).

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stated, based on the investigator's description of the case,

that the victim's ear injury could have been caused by the sole

of a boot. After reviewing this information in the light of all

evidence available to him, notably the photographs of the

wounds, trial counsel decided not to obtain a formal opinion,

believing it "entirely implausible that the injuries at issue

could have been caused by the sole of a boot or a closed fist."

Trial counsel evaluated the information available to him and

made a reasoned decision. This was not manifestly unreasonable.

See Commonwealth v. Kolenovic, 471 Mass. 664, 674-675 (2015)

("The manifestly unreasonable test . . . is essentially a search

for rationality in counsel's strategic decisions, taking into

account all the circumstances known or that should have been

known to counsel . . . and not whether counsel could have made

alternative choices").

Moreover, the defendant has not demonstrated a viable claim

of prejudice. The doctor whose affidavit was filed in support

of the defendant's motion for a new trial explicitly stated that

it was "not possible to determine the origin of the injuries to

[the victim]," and that he "could not determine without

speculating whether the wounds depicted in the photographs here

were caused by a razor or a shod foot, or had some other

origin." In short, the posttrial expert provided essentially

the same equivocal view as the pretrial expert. Moreover, even

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if an opinion was offered, it would not have affected the

trial's outcome as the judge credited the officer's testimony

that he witnessed the defendant holding a razor blade.

Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 326 (2023) ("We

give particular deference to the decision of a motion judge who

was also the trial judge").2

c. Constitutional right to a speedy trial. "To determine

whether either prong of the Saferian test is implicated here, we

consider the merits of the defendant's claim that the delay in

bringing him to trial violated his constitutional right to a

speedy trial." Commonwealth v. Butler, 464 Mass. 706, 709

(2013). "Because the motion judge did not preside over the

trial or conduct an evidentiary hearing, . . . we review the

denial of the motion for a new trial de novo." Commonwealth v.

Mazza, 484 Mass. 539, 547 (2020).

"Both the Sixth Amendment [to the United States

Constitution], incorporated through the Fourteenth Amendment [to

the United States Constitution], and art. 11 [of the

Massachusetts Declaration of Rights] guarantee criminal

defendants the right to a speedy trial. We interpret art. 11

through the lens of Sixth Amendment analysis." Commonwealth v.

2 The motion judge who presided over the defendant's first
motion for new trial, which considered only the defendant's
claim of ineffective assistance of counsel based on the failure
to obtain a medical opinion, was also the trial judge.

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McNair, 98 Mass. App. Ct. 750, 754 (2020), quoting Commonwealth

v. Dirico, 480 Mass. 491, 505 (2018). "[T]o trigger a speedy

trial analysis, an accused must allege that the interval between

accusation and trial has crossed the threshold dividing ordinary

from 'presumptively prejudicial' delay." Commonwealth v.

Wallace, 472 Mass. 56, 60 (2015), quoting Doggett v. United

States, 505 U.S. 647, 651-652 (1992). See also Barker v. Wingo,

407 U.S. 514, 530-533 (1972) (establishing four-factor balancing

test). "Once a defendant has established presumptive prejudice,

courts apply the four-factor Barker test to evaluate whether the

defendant's constitutional right to a speedy trial has, in fact,

been violated." Butler, 464 Mass. at 710. "Under the Barker

test, a reviewing court weighs the length of the delay, the

reason for the delay, the defendant's assertion of his right to

a speedy trial, and prejudice to the defendant." Dirico, supra

at 506, citing Barker, supra at 530.

Here, the nearly four-year long delay between the issuance

of the complaint in December 2015 and the defendant's trial in

2019 establishes both the threshold presumptive prejudice and

weighs heavily against the Commonwealth under the first Barker

factor. Butler, 464 Mass. at 715, quoting Doggett, 505 U.S. at

651 ("Length of delay 'is actually a double enquiry'").

Both the Commonwealth and the defendant contributed to the

pretrial delay. The Commonwealth appropriately concedes that it

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was negligent in failing to file a detainer under the Interstate

Agreement on Detainers before the defendant was to be released

from Federal custody in 2018. Cf. Butler, 446 Mass. at 715,

quoting Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964-965

(1986) ("The Commonwealth, in the performance of its public

trust . . . [has] some 'duty to coordinate the efforts of its

various criminal divisions'"). Although the Commonwealth's

negligence is not excused, it weighs only lightly against the

Commonwealth as there is no evidence of purposeful delay on its

part. See Wallace, 472 Mass. at 61 ("Weighing most heavily

against the government are deliberate attempts at delay").

Conversely, "[o]f equal weight but opposite import to a

defendant are 'delays requested or otherwise orchestrated by the

defendant, such as evading capture by authorities.'" Wallace,

472 Mass. at 61, quoting Commonwealth v. Carr, 464 Mass. 855,

861 (2012). Although we recognize that the defendant asserted

his speedy trial right on multiple occasions prior to his

release from Federal custody, we likewise note that the

defendant did not subsequently assert this right upon his

release from Federal custody prior to trial. See Butler, 464

Mass. at 716 ("we do require more than the defendant's soft

assertion of his right to a speedy trial"). Indeed, after his

release from Federal custody in March 2018, the defendant

defaulted in August 2018. After appearing in court the

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following month, the defendant then agreed to a continuance for

the subsequent pretrial hearing scheduled in November 2018. On

the day of his trial in December 2018, the defendant requested

new representation. The defendant's default and other delaying

actions between August and December 2018 weigh heavily against

the defendant, suggesting that he was not eager for a speedy

trial.

Finally, although the nearly four-year long delay

established a presumption of prejudice, it did not result in

prejudice particularized to the defendant. See Wallace, 472

Mass. at 60, quoting Doggett, 505 U.S. at 655-656 ("The

presumption of prejudice derived from a delay cannot be the sole

basis of a speedy trial claim but rather is 'part of the mix of

relevant facts'"). "Prejudice to the defendant 'should be

assessed in the light of the interests of defendants which the

speedy trial right was designed to protect,' which include the

interests '(i) to prevent oppressive pretrial incarceration;

(ii) to minimize anxiety and concern of the accused; and

(iii) to limit the possibility that the defense will be

impaired.'" Dirico, 480 Mass. at 507, quoting Butler, 464 Mass.

at 717. Here, the defendant did not suffer oppressive pretrial

incarceration as he was held in Federal custody until 2018 and

was subsequently released on bail. Moreover, the defendant's

general claim that he suffered anxiety and concern is belied by

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the defendant's delaying tactics between August and December

2018 and his failure to assert his right thereafter.

Furthermore, the defendant's claim that the delay "caused

key witnesses' memories to fade, and potentially exculpatory

evidence to become stale, . . . and compromised the reliability

of a trial in ways neither party can prove or identify" is

unpersuasive as it is unsupported by the record. Indeed, the

defendant points only to a Commonwealth's witness's memory as

affected by the pretrial delay. See also Butler, 464 Mass. at

717-718 ("the passage of time is a double-edge sword"). The

defendant's argument that the delay prevented his immediate

communication with percipient inmate witnesses is simply

contrary to the evidence. The defendant was removed from the

Plymouth County House of Corrections within three months of the

crime and within two months of his being charged, delays that do

not raise any constitutional speedy trial concerns. See Dirico,

480 Mass. at 506 (speedy trial right comes into play as delay

"approaches one year").3 Accordingly, the defendant has failed

to show he suffered particularized harm from the pretrial delay.

3 For the same reason, the defendant's claim of prejudicial
preindictment delay fails. The defendant's claim that "the
delay was the result of an intentional and / or reckless failure
of the Commonwealth" is unsupported by any evidence. See
Commonwealth v. Dame, 473 Mass. 524, 530, cert. denied, 580 U.S.
857 (2016), quoting Commonwealth v. George, 430 Mass. 276, 281
(1999) ("A defendant seeking dismissal of an indictment due to

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Considering the Barker factors as a whole, we find that the

defendant's constitutional right to a speedy trial was not

violated. Accordingly, the defendant was not deprived of a

substantial ground of defense. See Commonwealth v. Diaz, 448

Mass. 286, 289 (2007) ("An ineffective assistance claim based on

the failure to bring a motion requires the defendant to show

that the motion would likely have been granted"); Commonwealth

v. Mathews, 450 Mass. 858, 873 (2008) ("Ultimately, the

defendant must demonstrate that trial counsel would have been

successful had he filed a motion to dismiss").

3. Opening statement. Under Mass. R. Crim. P. 24 (a) (1),

378 Mass. 895 (1979), a "defendant may present an opening

statement of his defense after the opening statement of the

Commonwealth or after the close of the Commonwealth's evidence."

A defendant, however, is not required to make an opening

statement, as "waiver of an opening statement has been held to

be 'trivial', a 'tactical decision', and a 'matter of

professional judgment', as well as 'within the realm of trial

strategy.'" Commonwealth v. Scott, 430 Mass. 351, 357 (1999),

quoting Commonwealth v. Cohen, 412 Mass. 375, 391 (1992).

preindictment delay 'must demonstrate that he suffered
substantial, actual prejudice to his defense, and that the delay
was intentionally or recklessly caused by the government'").
For this reason, the corresponding ineffective assistance of
counsel claim fails.

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Because the defendant did not object, we review for a

substantial risk of a miscarriage of justice. See Commonwealth

v. McDermott, 493 Mass. 403, 416 (2024).

The prosecutor waived his opening statement and asked to

"[j]ust call a witness at this point." The prosecutor then

offered an exhibit, and defense counsel said, "No objection as

redacted." The prosecutor then asked to call a witness, and

again defense counsel had no objection. There is no way to

understand this chain of events as anything other than defense

counsel's waiver of an opening statement as well. Accordingly,

the defendant's reliance on Commonwealth v. Dupree, 16 Mass.

App. Ct. 600 (1983), is misplaced. There, "[d]efense counsel

immediately stated his intention to make an opening," and the

judge "stated he would not permit the defendant to open until

after the Commonwealth had rested." Id. at 601. Accord United

States v. Hershenow, 680 F.2d 847, 857 (1st Cir. 1982) (judge

denied defendants' opening statements before government's case

over objections of both counsel).

4. Rule 17 motion. The defendant argues that the trial

judge improperly denied his pretrial motion to subpoena

documents. To obtain a Mass. R. Crim. P. 17 subpoena, "the

moving party must establish good cause for the production of

third-party documents, which is 'satisfied by a showing

"(1) that the documents are evidentiary and relevant; (2) that

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they are not otherwise procurable reasonably in advance of trial

by exercise of due diligence; (3) that the party cannot properly

prepare for trial without such production and inspection in

advance of trial and that the failure to obtain such inspection

may tend unreasonably to delay the trial; and (4) that the

application is made in good faith and is not intended as a

general 'fishing expedition.'"'" Commonwealth v. Hunt, 86 Mass.

App. Ct. 494, 498 (2014), quoting Commonwealth v. Lampron, 441

Mass. 265, 269 (2004).4 We review for an abuse of discretion.

See Commonwealth v. Michalski, 95 Mass. App. Ct. 520, 522

(2019).

Here, the defendant was not seeking documents that were

evidentiary and relevant. See Commonwealth v. Olivier, 89 Mass.

App. Ct. 836, 845 (2016) ("The standard of relevance applied to

rule 17[a][2] motions is the same standard applied to evidence

at trial"). Instead, he was seeking to "identify[] potential

witnesses" that he could then interview. "[R]ule 17(a)(2) is

not a discovery tool, and . . . the limited purpose of rule

4 We recognize that there is a colorable claim that the
prison personnel were part of the prosecution team under the
facts of this case. See Commonwealth v. Beal, 429 Mass. 530,
531 (1999) (prosecution team involves "those individuals acting,
in some capacity, as agents of the government in the
investigation and prosecution of the case"). Because the
defendant did not move for these records under Mass. R. Crim.
14 (a) (2), as appearing in 442 Mass. 1518 (2004), and makes no
argument on appeal regarding that rule, we do not reach it.

15
17 (a) (2) is to authorize a court 'to expedite the trial by

providing a time and place before trial for the inspection of

the subpoenaed materials'" (citation omitted). Commonwealth v.

Dwyer, 448 Mass. 122, 142 (2006). Accord Commonwealth v. Jones,

478 Mass. 65, 68-69 (2017). See also Olivier, supra, quoting

Dwyer, supra ("This standard -- rather than the broad discovery

standing -- applies because 'rule 17[a][2] is not a discovery

tool'"). Accordingly, the trial judge acted within his

discretion in denying the motion.5

5. Conclusion. The judgment is affirmed. The order dated

November 17, 2020, denying the defendant's first motion for a

new trial is affirmed. The order dated August 11, 2023, denying

the defendant's second motion for a new trial is vacated, and

5 In light of our rejection of all of the defendant's claims
of errors except for the first, his claim of cumulative error is
without merit. See Commonwealth v. Robinson, 493 Mass. 775, 795
(2024).

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the case is remanded for further proceedings consistent with

this decision.

So ordered.

By the Court (Ditkoff,
Grant & Toone, JJ.6),

Clerk

Entered: September 12, 2025.

6 The panelists are listed in order of seniority.

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