Commonwealth v. Demetrius Goshen.

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-237

COMMONWEALTH

vs.

DEMETRIUS GOSHEN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Demetrius Goshen, was indicted for murder in

the first degree and, after a jury trial in the Superior Court,

convicted of the lesser included offense of voluntary

manslaughter. The defendant was eighteen years old at the time

he fatally stabbed the victim, Dwayne Borges. The defendant

appealed, and while his appeal was pending, he filed motions for

a new trial, or in the alternative, new sentencing, based

primarily on claims of ineffective assistance of counsel.

Following an evidentiary hearing, the motion judge, who was not

the trial judge, 1 denied the defendant's motion for a new trial,

but granted his request for the alternative relief of a new

sentencing hearing. Before us is the defendant’s direct appeal,

1 The trial judge had retired.
his appeal from the order denying his new trial motion, and the

Commonwealth's appeal from the order allowing the defendant a

new sentencing hearing. We affirm.

Background. We summarize the facts the jury could have

found, reserving certain facts for later discussion.

Shortly before noon on October 8, 2014, the defendant and

three friends -- Latroy Hairston, Adrian Garcia, and Jared Frye

-- were at a Cumberland Farms store in Wareham. The four young

men had grown up together and were members of "Mpyre," a music

group that identified its members through the carrying of

bandanas, referred to as "flags." All four youths carried

knives on a regular basis, and each had a knife with him on

October 8 at the Cumberland Farms.

As the defendant stood in the store's doorway, the victim

and his girlfriend drove into its parking lot. The victim went

into the store. As the victim passed Garcia, he pulled the

"flag" from Garcia's pocket. Garcia responded by "tackl[ing]"

the victim, who put Garcia in a headlock. Frye, Hairston, and

finally, the defendant joined in the fight and pushed the victim

into the corner of the store. 2 The victim was stabbed eight

times and died later that day.

2 Much of this altercation was recorded on the store's video
surveillance system.

2
The defendant and his companions fled but were soon

apprehended by the police. Law enforcement officers discovered

several items they believed to have been discarded by the

defendant and his friends as they fled, including a large

kitchen knife with a blue handle and a knife sheath. Garcia had

a knife in his possession when he was apprehended by the police;

a third knife was found in the footwell of Frye's seat in the

police cruiser. The blue-handled kitchen knife (knife) later

tested positive for blood; the DNA profile obtained from the

blood sample matched that of the victim.

The defendant was indicted for murder by a Plymouth County

grand jury in January 2015, and his three friends were each

charged with armed assault with intent to murder.

At trial, the defendant neither testified nor presented any

evidence. Through argument and cross-examination, he contended

that the Commonwealth had failed to prove that he inflicted "any

fatal wound." Defense counsel argued that the surveillance

video showed the defendant was unarmed, was the last to join in

the altercation, and engaged in a fleeting struggle of a

duration inadequate to inflict the victim's wounds. He further

argued that the alleged murder weapon belonged to Hairston, who

negotiated a deal with the prosecution to pin the killing on the

defendant. As noted, the jury returned a verdict of voluntary

manslaughter.

3
At sentencing, approximately one month after the jury's

verdict, defense counsel argued for a five-to-seven-year

sentence and highlighted mitigating circumstances including the

fact that "[the defendant] was 18 years of age at the time [of

the crime]." The judge responded, "I respect what you say. You

did an excellent job representing your client." After

considering the "senseless" nature of the killing, the use of

the knife, and the serious wounds, the judge concluded, "I don't

think there are mitigating circumstances," and sentenced the

defendant to eighteen to twenty years.

Discussion. 1. Defendant's direct appeal. a.

Cooperation agreements. At or near the time of the grand jury

presentation, Hairston, Garcia, and Frye signed plea and

cooperation agreements with the Commonwealth. 3 At trial,

Hairston and Garcia testified for the Commonwealth. Their

cooperation agreements set forth in several places each

witness's obligation to testify truthfully before the grand jury

and at trial. The defendant did not object to the admission

into evidence of the two cooperation agreements, but later

argued that references in them to "truthful" testimony amounted

to improper vouching and should be redacted. The judge

3 Each of them agreed to plead guilty and testify on behalf of
the prosecution in exchange for, among other concessions, a
reduction in the charges and the Commonwealth's recommendations
of favorable dispositions.

4
disagreed, concluding that there was no vouching, and because he

had provided the jury with a limiting instruction at the time

the agreements were introduced, "[the jury] should see the

entire [cooperation agreement]." Additionally, on direct

examination, the prosecutor elicited from each codefendant a

brief explanation of his understanding of his agreement. Garcia

said, "That I am to cooperate with the Commonwealth and

testify." Hairston, however, testified that he understood his

cooperation agreement to require that "I tell the truth." The

defendant did not object to any of this testimony.

The defendant argues, and the Commonwealth correctly

recognizes, that the better practice would have been for the

judge to redact the agreements as requested by the defendant.

Likewise, Hairston should not have been permitted to testify on

direct examination that his agreement with the government

required him to "tell the truth" about the events surrounding

the stabbing. See Commonwealth v. Ciampa, 406 Mass. 257, 262,

263 (1989). Cf. Commonwealth v. Charles, 428 Mass. 672, 680-681

(1999). Treating both objections as preserved, 4 we consider

whether the error was prejudicial. See Commonwealth v. Cheng

Sun, 490 Mass. 196, 219 (2022).

4 Despite the unpreserved nature of some of these objections, we
apply the same standard for ease of analysis.

5
Before admitting the first of the two cooperation

agreements, the judge gave the "specific[] and forceful[]"

instructions required under Ciampa, "tell[ing] the jury to study

the witness's credibility with particular care," and he repeated

those instructions in his final jury charge. Ciampa, 406 Mass.

at 266. See Commonwealth v. Correia, 65 Mass. App. Ct. 597, 602

(2006). In doing so, the judge explicitly instructed the jury

that the Commonwealth did not know whether the witnesses were

testifying truthfully. These instructions cured any prejudice

created either by Hairston's testimony about his obligation to

testify truthfully or the failure to redact the cooperation

agreements. 5 See Commonwealth v. Rosario, 460 Mass. 181, 189

(2011).

b. Autopsy photographs. i. Substitute medical examiner's

testimony. By the time of trial, the medical examiner who had

conducted the autopsy, Dr. Renee Robinson, was not available.

The Commonwealth therefore called another medical examiner, Dr.

Anand Shah, as a substitute witness.

On direct examination, the prosecutor properly elicited Dr.

Shah's opinion about the cause of the victim's death, as well as

opinions derived from Dr. Shah's review of the autopsy

5 The verdict further supports our conclusion that any error was
not prejudicial. Ultimately, the jury convicted the defendant
of manslaughter, not murder. See Commonwealth v. Stephens, 44
Mass. App. Ct. 940, 942 (1998).

6
photographs. See Commonwealth v. Leiva, 484 Mass. 766, 792-793

(2020). The prosecutor misstepped, however, by eliciting Dr.

Shah's testimony about details gathered from the report of the

medical examiner who performed the autopsy, Dr. Robinson, which

was not in evidence. "A substitute medical examiner may

not . . . testify to facts in the underlying autopsy report

where that report has not been admitted." Commonwealth v.

Reavis, 465 Mass. 875, 883 (2013). Dr. Shah's testimony about

these facts violated the defendant's right to confront Dr.

Robinson and was thus inadmissible. See Commonwealth v.

Greineder, 464 Mass. 580, 584, cert. denied 571 U.S. 865 (2013);

Commonwealth v. Durand, 457 Mass. 574, 584-585 (2010).

Even treating the objection as preserved, however, 6 we

conclude that the impact of the error was minimal. The

testimony was cumulative of other properly admitted evidence --

the autopsy photographs, Dr. Shah's opinion that wounds nos. 3

and 7 caused the defendant's death, Dr. Shah's testimony about

the wound sizes, and Dr. Shah's opinion about "the

characteristics of the object probably used to inflict the type

of injury observed." Commonwealth v. Emeny, 463 Mass. 138, 146

6 Until prompted by the judge, the defendant did not object to
Dr. Shah's testifying to the facts underlying his own opinion.

7
(2012), quoting Commonwealth v. Avila, 454 Mass. 744, 761

(2009). 7

ii. Authentication. At trial, the judge permitted the

Commonwealth to introduce eight photographs of the victim's

autopsy into evidence without objection. Three of the

photographs now challenged by the defendant, exhibit nos. 36,

38, and 39, were properly admitted through Dr. Bedabrata Sarkar,

the surgeon who treated the victim on the afternoon of the

stabbing. Dr. Sarkar properly authenticated those photographs

by testifying about his observations of the victim during

surgery; he confirmed that each photograph was a fair and

accurate representation of what he saw. See Commonwealth v.

Housen, 458 Mass. 702, 712 (2011); Mass. G. Evid. § 901 (a)

(2023).

We reach a different conclusion as to the remaining five

photographs (exhibit nos. 75 through 79) admitted through Dr.

Shah, the physician whom we have noted was called by the

Commonwealth to testify as a substitute medical examiner. See

Reavis, 465 Mass. at 883. Dr. Shah had not seen the victim's

7 The defendant's passing reference in his brief to the erroneous
introduction of the victim's death certificate through the
substitute medical examiner is not supported by any record
citations and does not rise to the level of appellate argument.
We do not address it further.

8
body when the photographs were taken or, indeed, at any time, 8

and the Commonwealth did not demonstrate that Dr. Shah was

competent to testify "that the [photographs] [were] what the

proponent claim[ed] [they] [were]." 9 Mass. G. Evid. § 901 (a).

See Commonwealth v. Rodriguez, 457 Mass. 461, 476 (2010),

abrogated on other grounds, Marshall v. Commonwealth, 463 Mass.

529, 535 (2012).

Although improper, the admission of exhibit nos. 75 through

79 did not create a substantial risk of a miscarriage of

justice. See Commonwealth v. Rivera, 464 Mass. 56, 78 & n.22,

cert. denied, 570 U.S. 907 (2013). The evidentiary value of

those three photographs was cumulative of other admissible

evidence -- specifically, Dr. Sarkar's testimony about the size

and general placement of the victim's wounds in the aftermath of

the stabbing. See Reavis, 465 Mass. at 883-884. There was no

dispute about the victim's cause of death, see id., and the

photographs did not bear on the defendant's claim that someone

8 The victim's autopsy was performed before Dr. Shah joined the
Office of the Chief Medical Examiner.
9 The Commonwealth did not authenticate those photographs with

testimony of a witness to the autopsy, such as a police officer
or photographer. See Commonwealth v. Rivera, 464 Mass. 56, 78 &
n.22, cert. denied 570 U.S. 907 (2013). Although the
Commonwealth moved to expand the record on appeal to provide
documentation of the lead investigator's presence at the
victim's autopsy, that motion was denied.

9
other than he administered the fatal wounds. See Rodriguez, 457

Mass. at 477.

iii. Unfair prejudice apart from authentication. We are

likewise unpersuaded that the photographs were unfairly

prejudicial based on either their depiction of the body before

the autopsy or because of markings made on some of the

photographs. 10 "The question whether the inflammatory quality of

a photograph outweighs its probative value and precludes its

admission is determined in the sound discretion of the trial

judge." Commonwealth v. Alleyne, 474 Mass. 771, 779 (2016),

quoting Commonwealth v. Amran, 471 Mass. 354, 358 (2015). The

photographs here were clearly probative of the elements of

murder. See Commonwealth v. Walters, 485 Mass. 271, 283 (2020);

Alleyne, supra at 779. This was true even where the images

depicted evidence of pre- and postmortem surgical procedures,

rulers for scale, and numerals for identifying wounds. The

photographs themselves were not "inflammatory." Cf.

Commonwealth v. St. Peter, 48 Mass. App. Ct. 517, 523 (2000).

We cannot say the judge abused his discretion in admitting the

photographs.

10Additionally, we do not agree that in this case, the failure
of the judge to give a sua sponte "limiting/cautioning"
instruction amounted to an abuse of discretion. Commonwealth v.
St. Peter, 48 Mass. App. Ct. 517, 523 n.3 (2000), cited by the
defendant, is not to the contrary.

10
c. Victim's girlfriend's testimony. The victim's

girlfriend (girlfriend) testified before the grand jury about

the victim's adversarial relationship with the defendant and

with Mypre's members generally. She also testified that the

victim had a criminal history and that he held a grudge against

the defendant based on his belief that the defendant had

participated in stealing drugs from the victim's brother. Prior

to trial, the prosecutor and defense counsel discussed "bringing

up past history" and agreed "not [to] get[] into any of that."

On direct examination at trial, the girlfriend denied any

familiarity with Mpyre, any awareness that "[the victim] had any

issues with these Mpyre kids," and any knowledge the victim

carried weapons on him that day. The girlfriend testified to

her view of the victim as "[s]o loving, caring, very smart,

caring so much for his mother, his grandmother, brothers, aunts

and uncles, family and friends. He was awesome."

The defendant's first challenge to the girlfriend's

testimony -- that it "erroneously suggest[ed] [that] [the

victim] was not the aggressor and . . . falsely suggest[ed]

[that] [the defendant] acted with a pre-existing intent to start

a fight" -- was not preserved at trial. In any event, trial

counsel's failure to object to it was consistent with the

defense theory that Hairston, and not the defendant, committed

the fatal stabbing. The defendant did not argue either self-

11
defense or defense of another and accordingly, as trial counsel

made clear, did not rely on Adjutant evidence. 11 See

Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005). See also

Commonwealth v. Souza, 492 Mass. 615, 620-621 (2023).

The defendant's second challenge to the girlfriend's

testimony was not preserved at trial and fares no better. The

girlfriend's "misleading" trial testimony did not entitle the

defendant to cross-examine her by asking about the victim's

prior bad acts. The inconsistent testimony about which the

defendant now complains (disclaiming knowledge of "what Mpyre

was" or "that [the victim] had any issues with these Mpyre

kids") was the result of a pretrial agreement between the

prosecutor and defense counsel to avoid any reference to the

"drug rip" that was the source of the victim's ill will toward

the defendant. Even if the prosecutor could have conducted the

direct examination so as to avoid soliciting testimony about the

victim's prior criminal behavior, any inconsistencies in the

girlfriend's testimony did not create a substantial risk of a

11"Adjutant evidence constitutes evidence of 'specific acts of
prior violent conduct that the victim is reasonably alleged to
have initiated,' Commonwealth v. Adjutant, 443 Mass. 649, 664
(2005) . . . , offered by the defendant 'for the limited purpose
of supporting the defendant's self-defense claim that the victim
was the first aggressor.' Id. at 660." Commonwealth v.
Chambers, 465 Mass. 520, 521 n.1 (2013).

12
miscarriage of justice. See Commonwealth v. Valentin, 470 Mass.

186, 188-189 (2014).

We are similarly unpersuaded that the girlfriend's

testimony that, after seeing the defendant in the doorway of the

Cumberland Farms store, the victim told her to wait in the car

because "the Mpyre kids [were] in the store and [] if they were

going to start with somebody, to have them start with him," was

inadmissible hearsay. Even if it was hearsay, however, its

admission did not create a substantial risk of a miscarriage of

justice where the jury rejected the first-degree murder charge.

Commonwealth v. Evans, 438 Mass. 142, 152-153 (2002). The

victim's statement did no more than signal a mutual dislike

between the victim and members of the Mpyre group; to the extent

it also suggested that the victim was the aggrieved party,

nothing turned on who started the fight between the victim and

the codefendants. See Souza, 492 Mass. at 621.

Finally, to the extent that the defendant raises a

challenge to the judge's refusal to allow trial counsel to

cross-examine the girlfriend about the victim's prior bad acts,

based on her brief description of the victim as "a loving, kind

guy," nothing about that aspect of the girlfriend's testimony

"blew the door open on [the victim's] prior reputation," as

defense counsel argued at trial. "[T]he prosecutor is entitled

to tell the jury something of the person whose life ha[s] been

13
lost in order to humanize the proceedings." 12 Commonwealth v.

Santiago, 425 Mass. 491, 495 (1997), S.C., 427 Mass. 298 and 428

Mass. 39, cert. denied, 525 U.S. 1003 (1998). See Commonwealth

v. Holliday, 450 Mass. 794, 816, cert. denied sub nom. Mooltrey

v. Massachusetts, 555 U.S. 947 (2008).

d. Testimony on "pointed structure." The fight between

the victim and Garcia, Hairston, Frye, and the defendant was

recorded from several angles by a video surveillance system

inside the Cumberland Farms store. The videos were admitted in

evidence and played for the jury. The lead investigator,

Massachusetts State Trooper Paul MacDonald, testified that he

reviewed the video recordings frame by frame as part of his

effort to determine whether any of the participants in the fight

had a knife. He testified, without objection and in response to

questions about what he saw, "There was a dark pointed structure

in [the defendant's] hand." 13 The next day, defense counsel

moved to strike Trooper MacDonald's testimony about the object.

The judge agreed that the testimony should not have been

admitted and provided a curative instruction in his final charge

to the jury: "Witnesses may have testified to their opinions as

12 Defense counsel did not seek to revisit the prior agreement by
examining the girlfriend about her grand jury testimony on the
grounds that it was inconsistent with her trial testimony that
the defendant was "nice" and "awesome."
13 He reviewed the video in sequential frames and concluded that

the object "wasn't just a marking on the video or on the floor."

14
to what is depicted in the surveillance photographs. You are to

discard such opinion evidence. It is for you to decide what is

shown in those photographs." Assuming without deciding that the

issue was preserved and that Trooper MacDonald's testimony about

seeing an object should not have been admitted, we are confident

that the judge's instruction coupled with the ability of jurors

to view the video for themselves obviated any risk of prejudice.

Commonwealth v. Silva, 482 Mass. 275, 290 (2019) (jury presumed

to follow all instructions given).

e. Jury instruction. While providing the instruction on

the intent required to prove murder in the second degree, the

judge started to include a portion of an instruction on the

crime of assault with a dangerous weapon, but he immediately

recognized his error. 14 Specifically, the judge said, "You

should consider whether based on the objective conditions

existing at the time of the assault, the exhibition of the

instrument could reasonably engender the victim's fear and

whether the perpetrator --." At that point, the judge said,

"I'm sorry," and went on to the next jury instruction. The

defendant did not object.

14The misplaced instruction followed on the judge's proper
provision of a definition for "dangerous weapon" in the context
of the murder charge.

15
"[E]valuat[ing] the instruction as a whole, looking for the

interpretation a reasonable juror would place on the judge's

words," Commonwealth v. Vargas, 475 Mass. 338, 349 (2016),

quoting Commonwealth v. Young, 461 Mass. 198, 207 (2012), we are

satisfied that the error did not create a substantial risk of a

miscarriage of justice. Commonwealth v. Curran, 488 Mass. 792,

794 (2021); Commonwealth v. Ortiz, 487 Mass. 602, 611-612, 614-

615 (2021). Reading the trial transcript in a common-sense way,

we are confident that a reasonable juror would understand the

judge's abrupt abandonment of that strand of the instruction,

and his apology, to mean that the instruction was a mistake. In

any event, we fail to see how this particular sentence could

have prejudiced the defendant. The fact that he was ultimately

convicted of manslaughter, and not murder, contributes to our

conclusion that it did not do so. See Commonwealth v. Grinkley,

75 Mass. App. Ct. 798, 806 (2009).

f. Prosecutor's closing argument. We discern no merit in

the defendant's argument that the prosecutor improperly referred

to facts not in evidence in her closing argument. First, the

prosecutor did not "misstate[] the trial evidence" when she

argued that of the Mpyre members present at the Cumberland Farms

when the victim arrived there, "[the jury] heard testimony that

the person that [the victim] had an issue with was the

defendant," and that neither Hairston nor Garcia knew who the

16
victim was. The girlfriend testified that immediately upon

arriving in the Cumberland Farms parking lot the victim

recognized the defendant as an "Mpyre kid[]," and suggested to

her that the "Mypre kids" might cause trouble if she went into

the store. This evidence, along with the testimony of both

Hairston and Garcia denying that they had ever seen the victim

before he entered the store, permitted the inferences that the

prosecutor suggested. See Commonwealth v. Niemic, 483 Mass.

571, 592 (2019) (prosecutor may argue reasonable inferences

drawn from the evidence); Commonwealth v. Mack, 482 Mass. 311,

323 (2019) (same).

There was likewise proper grounding for the prosecutor's

argument that the blue-handled knife was "the only knife"

"capable of inflicting the injuries that killed [the victim]."

The jury heard that the fatal wounds were "deep," going through

the heart and, separately, into the victim's abdomen "almost to

the spine." Based on Hairston's testimony that the defendant

went to the Cumberland Farms with a "long hunting knife" with a

blue handle in a "harness," the video recordings depicting the

defendant with a scabbard on his hip, the recovery of a ten to

twelve inch scabbard on the path followed by the codefendants as

they fled from the site of the stabbing, and the evidence that

both of the other knives connected to the codefendants were less

than four inches long, this argument, too, was a reasonable

17
inference drawn from the evidence. 15 See Niemic, 483 Mass. at

592; Mack, 482 Mass. at 323.

Finally, the prosecutor's statement "that [the victim]

never struck any blows" was an accurate observation. Neither

the witnesses' testimony nor the surveillance video showed the

victim "striking any blows." 16 Indeed, the evidence was

uncontroverted that after the initial scuffle with Garcia, the

defendant did little more than cover himself defensively with

his hands. 17

g. Sufficiency of the evidence. As relevant to this case,

"[v]oluntary manslaughter is an unlawful killing arising not

from malice, but from . . . sudden passion induced by . . .

sudden combat[.]" Commonwealth v. Yat Fung Ng, 489 Mass. 242,

257 (2022), quoting Commonwealth v. Acevedo, 446 Mass. 435, 443

(2006). Viewing the evidence in the light most favorable to the

Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677

15 Additionally, although not indicative of the "capab[ility]" of
the knife with the blue handle to inflict the fatal injuries
here, there was evidence at trial that the blade of that knife -
- and only that one -- bore traces of the victim's DNA and other
indicia of having been introduced into a person's body.
16 Both Hairston and Garcia affirmatively denied that the victim

ever "struck" them or Frye.
17 We discern no merit in the defendant's argument that he was

prejudiced at the 2016 trial in this matter by a statement the
trial prosecutor made nearly a year later, as part of a 2017
plea colloquy in Jared Frye's case, that "the testimony at
Goshen's trial showed [the victim] landed one or two blows."

18
(1979), we are satisfied that the evidence was sufficient to

support the defendant's conviction.

Hairston's testimony put the blue-handled knife in the

defendant's possession before the Mpyre group arrived at the

Cumberland Farms, and Garcia testified that while the victim was

being beaten by Hairston and Frye inside the Cumberland Farms,

he saw the defendant "enter[] the fight" with the blue-handled

knife and stab the victim four or five times with it. Hairston

testified that after he and the others fled from the Cumberland

Farms, the defendant bragged about stabbing the victim, saying,

"I poked that n----; I poked that n----." Later, he apologized

and told Garcia "He didn't know why he did it." When the blue-

handled knife was found, forensic testing revealed on it both

the victim's DNA and a "greasy substance" consistent with its

having been used to stab someone in the body. Viewed in the

light most favorable to the Commonwealth, this evidence was

sufficient to meet the Latimore standard.

That there was other evidence from which a jury could have

drawn a different conclusion is of no consequence on appeal.

See Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 832 (2008).

Where the evidence pointed to the defendant as the only person

to have stabbed the victim, and the only one whose knife bore

the indicia of having been used for that purpose, the

Commonwealth was not required to rule out all other

19
possibilities. See Commonwealth v. Morgan, 449 Mass. 343, 349

(2007).

2. Motion for a new trial. a. Ineffective assistance.

To prevail on a claim of ineffective assistance of counsel, a

defendant must show that trial counsel's representation fell

"measurably below that which might be expected from an ordinary

fallible lawyer," and that the defendant was "likely

deprived . . . of an otherwise available, substantial ground of

defence" as a result. Commonwealth v. Saferian, 366 Mass. 89,

96 (1974). See Commonwealth v. Kolenovic, 471 Mass. 664, 673

(2015). "[W]e review a judge's decision on a defendant's motion

for a new trial based on the common-law claim of newly

discovered evidence for a significant error of law or other

abuse of discretion." Commonwealth v. Vaughn, 471 Mass. 398,

404 (2015), quoting Commonwealth v. Sullivan, 469 Mass. 340, 351

(2014).

i. Reasonableness of counsel's strategic decisions. The

defendant's claims that trial counsel fell short in failing to

hire a pathology expert, request a jury instruction on defense

of another, and -- "interconnected with" the decision not to

pursue such an argument -- introduce evidence of the victim's

prior antagonism toward the defendant and Mpyre, all challenge

20
his lawyer's strategic decisions. 18 Accordingly, "the test is

whether the decision was 'manifestly unreasonable' when made."

Kolenovic, 471 Mass. at 674, quoting Acevedo, 446 Mass. at 442.

"Although our cases applying the manifestly unreasonable test

have not precisely marked the limits of a trial attorney's

prerogative to make strategic decisions, we have been clear that

reasonableness does not demand perfection." Kolenovic, supra at

674.

At the hearing on the defendant's motion for a new trial,

Elizabeth Laposata, M.D., testified as an expert witness in

forensic pathology. While the judge found, consistent with Dr.

Laposata's opinion, that only one of the victim's wounds was

fatal, that none of the three knives recovered after the

stabbing could be ruled out as the fatal weapon, 19 and that the

presence of blood or biological material on a weapon was only

one factor important to the determination of whether a

particular knife was used in the stabbing, he rejected the

defendant's argument that trial counsel was ineffective in

failing to call an expert pathologist to testify to these

points. We discern no abuse of discretion in the judge's

18 To the extent that the defendant suggests that the failure to
consult or call a pathology expert was not a strategic decision,
we read the affidavit of trial counsel to support a different
conclusion.
19 And that the same was true of the missing fourth knife.

21
conclusion. Such testimony would not have aided the defense

theory of the case -- that the defendant "didn't do anything"

and only entered the fray with the victim after "[the] stabbing

[was] over and done." See Commonwealth v. Jacobs, 488 Mass.

597, 606-607 (2021); Commonwealth v. Montez, 450 Mass. 736, 758-

759 (2008). "An unsuccessful defense strategy does not amount

to ineffective assistance of counsel, even if different

strategies were available or conceivable." Commonwealth v.

Denson, 489 Mass. 138, 152 (2022).

Likewise, the motion judge acted within his discretion in

rejecting the defendant's challenge to his trial counsel's

decision not to argue or request an instruction on defense of

another. "The elements of defense of another are well settled:

'An actor is justified in using force against another to protect

a third person when (a) a reasonable person in the actor's

position would believe his intervention to be necessary for the

protection of the third person, and (b) in the circumstances as

that reasonable person would believe them to be, the third

person would be justified in using such force to protect

himself.'" Commonwealth v. Castillo, 485 Mass. 852, 856 (2020),

quoting Commonwealth v. Allen, 474 Mass. 162, 168 (2016).

First, as to the reasonableness of trial counsel's decision, the

motion judge considered "the obstacles to admitting into

evidence [the victim's] prior threats and acts of violence" --

22
namely, the defendant's decision not to testify and the

unavailability of other witnesses to the victim's prior

threatening conduct. 20 Without that evidence and given the

jury's ability to watch the fight unfold on the surveillance

video, the motion judge acted well within his discretion in

concluding that trial counsel made a reasonable tactical

decision not to argue defense of another. See Commonwealth v.

Boria, 460 Mass. 249, 253 (2011).

Even if that were not the case, the defendant has not shown

that he was prejudiced. The evidence at trial was undisputed

that at the time the defendant entered the fight between the

codefendants and the victim, the victim was sheltering himself

from the blows of the codefendants and was not fighting anyone,

making it unlikely that a jury would have found the defendant's

use of deadly force to be either reasonable or justified. See

Castillo, 485 Mass. at 856.

20Additionally, the motion judge considered that introducing
evidence of the victim's antagonistic relationship with the
defendant and Mypre ran an obvious risk of inviting the
Commonwealth to introduce responsive evidence suggesting that
the defendant had participated in the theft of drugs from the
victim's brother. See Mass. G. Evid. § 804 (b) (3). See also
Montez, 450 Mass. at 758 (not manifestly unreasonable for
defense counsel to deemphasize prior bad act evidence).
Likewise, by introducing evidence of the victim's misconduct
toward the defendant and his Mpyre associates, defense counsel
would have risked suggesting to the jury that the defendant had
a motive to retaliate against the victim. See Commonwealth v.
Hensley, 454 Mass. 721, 741-742 (2009).

23
ii. Failure to object. The defendant points to trial

counsel's failure to object to the introduction of the autopsy

photographs, Dr. Shah's testimony about the details of the

autopsy, Trooper MacDonald's lay opinion about the "dark,

pointed object," and the girlfriend's account of what the victim

said to her before he entered the Cumberland Farms store as

evidence of ineffective assistance at trial. Where we have

considered the subject matter of each of these claims as part of

our previous analysis and have determined that any error in the

admission of the evidence did not create a substantial risk of a

miscarriage of justice, we are satisfied that the motion judge

acted within his discretion in rejecting the defendant's

ineffective assistance argument on these points. See

Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).

iii. Notice of sentencing appeal and constitutionality of

sentence. In his motion for new trial, the defendant argued

that trial counsel provided him with ineffective assistance of

counsel by failing to ensure that a timely sentencing appeal was

filed with the Appellate Division of the Superior Court as

provided in G. L. c. 278, § 28A. He also challenged the

constitutionality of his sentence. Because, as we discuss

infra, we conclude that the motion judge did not abuse his

discretion in allowing the defendant's motion for a new

24
sentencing hearing, we need not address either of these

arguments. 21

3. Commonwealth's appeal. 22 The defendant's motion for a

new trial included an alternative request for a new sentencing

hearing. Although the judge denied the defendant's request for

a new trial, he allowed the defendant's alternative request by

granting him a new sentencing hearing based upon ineffective

assistance of counsel. 23 The Commonwealth appealed from that

decision. Treating the motion for resentencing as filed under

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

see Commonwealth v. Talbot, 444 Mass. 586, 593 (2005), we cannot

21 We likewise decline the defendant's invitation to extend the
constitutional protections extended to juvenile offenders in
Commonwealth v. Perez, 477 Mass. 677, 688 (2017) to eighteen
year old offenders. We are aware that the issue framed by the
defendant is presently under consideration by the Supreme
Judicial Court in Commonwealth v. Mattis, SJC-11693.
22 Although it is unnecessary to detail the proceedings here, the

parties filed a flurry of motions before the single justice of
this court, all related to the Commonwealth's delay in filing
its brief in connection with its cross appeal. Ultimately, the
single justice allowed the Commonwealth to file its brief late;
he also allowed both parties to file nonconforming briefs, each
of which exceeded the page limits prescribed by Mass. R. A. P.
16 (h), as appearing in 481 Mass. 1628 (2019). The single
justice referred to this panel the defendant's renewed motion to
dismiss the Commonwealth's appeal. We do not condone the
Commonwealth's delay, but we deny the defendant's motion to
dismiss the Commonwealth's appeal.
23 On June 6, 2016, the defendant filed a timely motion to revise

and revoke his sentence under Mass. R. Crim. P. 29, as amended,
489 Mass. 1503 (2022). The trial judge took no action on the
motion. The defendant does not argue that he is entitled to
relief under rule 29, and we do not consider the question
further.

25
conclude that the motion judge erred or abused his discretion in

granting the defendant a new sentencing hearing. See

Commonwealth v. Plasse, 481 Mass. 199, 204 (2019). Because we

are satisfied that the motion judge's findings support a

conclusion that, in these circumstances, "justice may not have

been done," see Mass. R. Crim. P. 30 (b), at the original

sentencing, we affirm. 24

At the sentencing hearing, defense counsel argued for

leniency, citing "mitigating circumstances" including the

defendant's age, family circumstances, and lack of criminal

record. In support of the defendant's motions for a new trial

and a new sentencing hearing, Frank DiCataldo, Ph.D., a clinical

psychologist, testified that research existed at the time of

sentencing that would have supported an additional proposition:

that is, at the time of the stabbing, the defendant was, for the

purposes of brain development, an adolescent, not an adult. In

his testimony and in an affidavit supporting the defendant's

motion for a new trial, Dr. DiCataldo averred that the defendant

lacked the brain development, maturity, judgment, and impulse

control of an adult. Dr. Cataldo stated that he "regularly"

24In doing so, we need not and do not reach the question whether
trial counsel was ineffective in failing to develop and present
evidence concerning adolescent brain development at the
sentencing hearing. See Commonwealth v. Henry, 488 Mass. 484,
495 (2021) (appellate court may affirm on grounds different from
those relied upon by the motion judge).

26
testified about brain development in adolescents -- a category

he testified was defined in the relevant scientific community to

include eighteen year olds -- and had done so for nearly a

decade before the defendant's case went to trial.

It is apparent from the judge's memorandum of decision that

he credited Dr. DiCataldo's statements. We "defer[] to [the

motion] judge's assessment of the credibility of the witnesses."

See Commonwealth v. Cruz, 90 Mass. App. Ct. 60, 65 (2016),

quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

Considering Dr. DiCataldo's testimony, the motion judge could

properly have concluded that the defendant would have benefitted

from an opportunity to introduce available evidence suggesting

that the defendant's "psychosocial immaturity . . . [left him

potentially] more likely to act impulsively, to act

aggressively, to be influenced by peer pressure, to misread

social cues and perceived threats, and to overreact or react

excessively than an adult." The same research would have

provided the defendant with the opportunity to argue that

"because of [the defendant's] youth and psychosocial immaturity,

he ha[d] a greater overall capacity for maturation, behavior

change, personality development and desistence from violence

compared to adults." See Plasse, 481 Mass. at 205. The judge

was not compelled to reach the conclusion that he did, but we

27
are satisfied that he acted within his discretion in doing so.

See Talbot, 444 Mass. at 593; Mass. R. Crim. P. 30 (b).

Conclusion. The defendant's conviction is affirmed. The

orders denying the defendant's motion for a new trial and

allowing his motion for a new sentencing hearing are affirmed. 25

So ordered.

By the Court (Vuono, Hand &
Hodgens, JJ. 26),

Clerk

Entered: October 3, 2023.

25 In doing so, we express no opinion on the appropriateness of
the defendant's current sentence.
26 The panelists are listed in order of seniority.

28