Commonwealth v. Lamont Johnson.

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-413

COMMONWEALTH

vs.

LAMONT JOHNSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of five

crimes, including aggravated rape and abuse of a child, and

assault and battery by means of a dangerous weapon upon a child

under the age of fourteen.1 On appeal, the defendant argues that

the judge abused his discretion in denying his motion for a new

trial without an evidentiary hearing.2 Without expressing any

view of whether the defendant's motion for a new trial

ultimately should be granted, we conclude that the defendant

1 Specifically, the convictions were of three counts of
aggravated rape and abuse of a child, in violation of G. L.
c. 265, § 23A, and four counts of assault and battery by means
of a dangerous weapon upon a child under the age of fourteen, in
violation of G. L. c. 265, § 15A (c) (iv). The defendant was
acquitted of five related charges.
2 The appeal from the convictions was consolidated with the

appeal from the denial of the defendant's motion for a new
trial. On appeal, the defendant only challenges the denial of
his motion for a new trial.
raised a substantial issue warranting an evidentiary hearing.

We therefore vacate the order denying the motion for a new trial

and remand the matter to the Superior Court for further

proceedings consistent with this memorandum and order.

Background. 1. The Commonwealth's case. Two children,

whom we call Shaun and Colin, testified that the defendant, at

various times, abused them both sexually and physically when

they were between the ages of seven and eight, when the

defendant was living with Shaun and his family. At the time of

trial, Shaun was thirteen years old and Colin was twelve years

old.

According to Shaun, after he broke a glass light protector

in his sister's room, the defendant used a shard of the broken

glass to cut Shaun's bare buttocks as punishment. The defendant

also hit Shaun in the same area with a stick. At a different

time, the defendant forced Shaun to perform oral sex on him

while Shaun was kneeling on the floor and the defendant was

sitting on the bed. Shaun also testified that the defendant

forced him to perform anal sex on the defendant.

Colin was a friend of Shaun who would come over to his

apartment several times per week. Colin testified that the

defendant would sometimes punish Colin by hitting him on the

bare buttocks with a stick. Both Shaun and Colin stated that

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the defendant forced Shaun and Colin to perform oral sex on one

another.

In 2016, after Shaun's mother obtained a restraining order

against the defendant and the defendant left the home, Shaun

disclosed to his mother some of the abuse perpetrated by the

defendant. However, when asked by the police, during the

subsequent investigation in 2017, about being touched by the

defendant, Shaun stated that he did not want to remember. No

criminal charges were filed at that time. Colin testified that

sometime between 2017 and 2019, after learning that the

defendant was no longer living in Shaun's home, he disclosed the

acts that the defendant had done to him.

Shaun also testified at trial that he had observed the

defendant sexually abuse Erik3, another child friend of his.

Erik refused to participate in a forensic interview.

At trial, Dr. Stephanie Block, a research psychologist

specializing in child abuse, testified as an expert for the

Commonwealth. Dr. Block testified that children may disclose

sexual abuse immediately, delayed, partially, or not at all.4

3 A pseudonym.
4 The Commonwealth filed a motion in limine to admit the
testimony of Dr. Block. The Commonwealth proffered Dr. Block to
assist the jury in understanding "[w]hy a child might delay in
disclosing sexual abuse" when that might seem "discordant with
common sense." The judge allowed the Commonwealth's motion.

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Dr. Block testified that different factors affect a child's

disclosure such as the age of the child, shame and

embarrassment, consequences of their disclosure, relationship to

the perpetrator, and whether the perpetrator has threatened the

child. Dr. Block also educated the jury as to memory formation.

She testified that when an event is traumatic, individuals may

remember "central" details better than "peripheral" details.

She explained that, during a stressful moment, a person will

focus on what is centrally important to that person, at the

potential cost of other details that one might otherwise expect

them to remember. On cross-examination, Dr. Block conceded that

children sometimes lie about being victims of childhood sexual

assault.

2. The defendant's case. The defendant's trial counsel

impeached Shaun by bringing the jury's attention to numerous

discrepancies between Shaun's trial testimony and his prior

statements. These inconsistencies included the number of times

the defendant struck Shaun with the stick and cut him with

glass, whether Shaun's mother was present during the incident,

and the number of times Shaun claimed he and Colin were abused

together. Trial counsel impeached Colin by pointing out several

inconsistencies between his trial testimony and his prior

statements. Additionally, Erik testified that the defendant

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never sexually abused him and that he never saw the defendant

abuse Shaun.

3. Closing arguments. In his summation, defense counsel

argued that Shaun and Colin were lying. He pointed out their

trial testimony's inconsistencies and how their version of

events changed over time. Defense counsel suggested that the

children may have lied to assist Shaun's mother in obtaining a

restraining order against the defendant or for a reason that

only Shaun and Colin know. Defense counsel never attempted to

explain or put into context any of Dr. Block's testimony.

In her closing, the prosecutor argued that Dr. Block's

testimony regarding traumatic memory formation could explain the

inconsistencies in Shaun's testimony about the defendant cutting

him with glass and regarding the anal sex. She asked the jury

to consider Dr. Block's testimony that the important facts of

the children's testimony were "central details" to them while

others were not. The prosecutor also attempted to explain the

children's failure to disclose details at their initial

interviews by reminding the jury of Dr Block's testimony. She

stated that in deciding the credibility of Shaun, they should

utilize Dr. Block's testimony and "[l]ook at [the situation]

through the lens of Dr. Block and what she told you about

victims of child sexual assault and trauma. . . ."

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4. Motion for a new trial. The defendant filed a motion

for a new trial alleging that trial counsel's failure to file a

motion for funds and failure to consult with an expert to

counter the Commonwealth's expert constituted ineffective

assistance. In support of his motion, the defendant submitted

affidavits by trial counsel and Dr. Heather Price, an expert in

memory and child sexual abuse.

Trial counsel averred that he did not file a motion for

funds to hire an expert in the field of child sexual abuse

disclosures to consult with, despite knowing that the

Commonwealth intended on calling an expert in the field of child

sexual abuse disclosures and memory. Trial counsel had reviewed

a prior transcript of Dr. Block's testimony and her written

publications, and based on this, trial counsel "did not believe

that any expert would be able to credibly refute the general

principles that Dr. Block was expected to testify to."

In her affidavit, Dr. Price averred that children do

sometimes make false disclosures, that memories are prone to

error, and that there are various factors that can lead to false

disclosures and false memories. For example, a child may be

pressured into making a false disclosure by suggestive

questioning or internal motivations. She also noted there are

documented cases where children have lied about abuse to "obtain

secondary benefits or avoid unwanted contact with an adult."

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Dr. Price opined that Dr. Block's trial testimony about

traumatic memory was incomplete, in part because it did not

reference the fact that stress sometimes will enhance memory and

sometimes will impair memory. She also explained that not all

children experience abuse as traumatic because the child may not

understand the abuse at the time. She testified that "the

abusive acts may [instead] be experienced as odd, confusing, or

comfortable, but not traumatic."

The motion judge, who was also the trial judge, denied the

defendant's motion for a new trial without an evidentiary

hearing "because the defendant's motion fail[ed] to raise a

substantial issue."

Discussion. "We review a judge's decision to deny a motion

for a new trial without holding an evidentiary hearing for a

significant error of law or other abuse of discretion"

(quotation and citation omitted). Commonwealth v. Upton, 484

Mass. 155, 162 (2020). "We afford particular deference to a

decision on a motion for a new trial based on claims of

ineffective assistance where the motion judge was, as here, the

trial judge". Commonwealth v. Martin, 467 Mass. 291, 316

(2014). "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" (quotations and citation omitted). Commonwealth v. Lys,

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481 Mass. 1, 5 (2018). An evidentiary hearing should be

conducted "where a substantial issue is raised and is supported

by a substantial evidentiary showing." Commonwealth v. Stewart,

383 Mass. 253, 260 (1981). See Commonwealth v. Drayton, 473

Mass. 23, 36-38 (2015) (substantial issue raised regarding

admission of witness's affidavit that directly contradicted

incriminating testimony by purported eyewitness).

To prevail on a motion for a new trial based on a claim of

ineffective assistance of counsel, the defendant bears the

burden to show that the "behavior of counsel f[ell] measurably

below that which might be expected from an ordinary fallible

lawyer" and that such failing "likely deprived the defendant of

an otherwise available, substantial ground of defence."

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

tactics which may appear questionable from the vantage point of

hindsight, do not amount to ineffective assistance unless

manifestly unreasonable when undertaken" (quotation and citation

omitted). Commonwealth v. Haley, 413 Mass. 770, 777-778 (1993).

One situation where prejudice can be shown is where expert

testimony "is necessary to rebut critical expert testimony

relied upon by the Commonwealth." Commonwealth v. Jacobs, 488

Mass. 597, 606 (2021), citing Commonwealth v. Millien, 474 Mass.

417, 429-434 (2016).

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1. Trial counsel's performance. In this case, the judge

found that there was no basis for finding that trial counsel's

behavior fell measurably below that of an ordinary, fallible

lawyer because:

"The defendant's theory at trial was that the victims lied
to help their mother retain custody of them. Although
ultimately unsuccessful as to some of the charges, this
theory was plausible and was, in my view, the best theory
of defense given the evidence. The testimony or assistance
of an expert would have done little, if anything, to aid
defense counsel in advancing this theory."

The Commonwealth argues that trial counsel's failure to retain

funds to hire an expert and his decision not to call an expert

were "strategic decision[s]" because he "reasonably believed

that [an] expert could not credibly refute the general

principles to which he expected [the Commonwealth's expert] to

testify."

We fail to see, upon the materials submitted with the

motion for a new trial, how trial counsel's failure to

investigate an expert who could refute the Commonwealth's expert

could constitute a strategic decision. "Defense counsel has a

professional obligation to investigate all potential substantial

defenses. The extent of investigation required to explore each

potential defense depends on the strength of that defense

relative to the availability and strength of other potential

defenses" (citations omitted). Commonwealth v. Epps, 474 Mass.

743, 758 (2016). Here, defense counsel's review of Dr. Block's

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prior trial testimony and publications about disclosure seems to

be an incomplete investigation. He lacked the subject matter

expertise necessary to credibly conclude that Dr. Block's

opinions could not be refuted, and not doing any type of

investigation into a child sexual abuse expert could be behavior

that falls below what would be expected from a reasonably

prudent defense attorney.

Trial counsel's strategy was to challenge the credibility

of the two child victims. He pointed out numerous

inconsistencies between their trial testimony and prior

statements. However, Dr. Block offered potential explanations

as to why the children's memory issues did not necessarily

suggest that they were lying. If Dr. Price had been called as a

witness, the defendant would have been able to rebut with expert

testimony the Commonwealth's argument regarding the credibility

of the children.

We conclude that the defendant's motion for a new trial and

accompanying affidavits demonstrated a substantial issue:

whether trial counsel should have filed a motion for funds to

find an expert to investigate Dr. Block's assertions regarding

memory and child sexual abuse. Because his failure to file such

a motion and consult with an expert could be manifestly

unreasonable, an evidentiary hearing was required to gauge the

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credibility of trial counsel's assertions and Dr. Price's

potential testimony.

2. Prejudice to the defendant. Turning to the second

prong of the Saferian test, we consider whether appellate

counsel has supplied sufficient evidence for us to conclude that

trial counsel's failure to seek funds to retain an expert

witness prejudiced the defendant. "[W]here counsel was

ineffective for failing to present an available ground of

defense, that defense is 'substantial' for Saferian purposes

where we have a serious doubt whether the jury verdict would

have been the same had the defense been presented. The

defendant need not prove that he or she would have been found

not guilty if defense counsel had presented the jury with this

ground of defense." Millien, 474 Mass. at 432-433.

Based on the affidavit of Dr. Price, the defendant could

have challenged Dr. Block's expert opinion regarding childhood

traumatic memory formation and rebutted the Commonwealth's

multiple arguments as to why the children made inconsistent

statements. The opinion testimony of a defense expert could

potentially have influenced the jury's evaluation of whether the

Commonwealth had shown that the children were telling the truth

about the allegations. Although it is true that defense counsel

did challenge the veracity of the children's testimony by

pointing out inconsistencies, the judge, without hearing the

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testimony of Dr. Price, could not have ascertained whether the

defendant had met his burden of proving the second prong of

Saferian.

We acknowledge that a judge has discretion in deciding

whether to hold an evidentiary hearing. See Commonwealth v.

Meggs, 30 Mass. App. Ct. 111, 114 (1991). A judge also has

discretion in deciding whether to discredit affidavits submitted

in support of a motion for a new trial. Commonwealth v. Vaughn,

471 Mass. 398, 405 (2015). Although we express no view as to

the ultimate outcome of the defendant's motion for a new trial,

we conclude that an evidentiary hearing was required. We

accordingly vacate the order denying the defendant's motion for

a new trial, and remand the matter to the Superior Court for

proceedings consistent with this memorandum and order.

So ordered.

By the Court (Wolohojian,
Milkey & D'Angelo, JJ.5),

Assistant Clerk

Entered: February 1, 2024.

5 The panelists are listed in order of seniority.

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