Commonwealth v. Gil

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22-P-550 Appeals Court

COMMONWEALTH vs. SALOME GIL.

No. 22-P-550.

Essex. January 17, 2024. - April 26, 2024.

Present: Meade, Blake, & Desmond, JJ.

Assault and Battery by Means of a Dangerous Weapon. Assault and
Battery. Constitutional Law, Identification, Assistance of
counsel. Due Process of Law, Identification, Assistance of
counsel. Evidence, Identification, Prior misconduct.
Practice, Criminal, Identification of defendant in
courtroom, Substitution of judge, Instructions to jury, New
trial, Assistance of counsel.

Complaint received and sworn to in the Lawrence Division of
the District Court Department on November 7, 2019.

The case was tried before Michael A. Uhlarik, J., and Mark
A. Sullivan, J.; and a motion for a new trial also was heard by
Mark A. Sullivan, J.

Alexander Conley for the defendant.
Jennifer D. Cohen, Assistant District Attorney, for the
Commonwealth.

BLAKE, J. The defendant, Salome Gil, was convicted by a

District Court jury of assault and battery by means of a
2

dangerous weapon and assault and battery.1 Her motion for a new

trial alleging ineffective assistance of counsel was denied

after a nonevidentiary hearing. In this consolidated appeal,

the defendant claims that she is entitled to a new trial for

four reasons. First, she contends that the judge erred in

allowing a witness to identify her at trial. Second, she claims

the trial judge erred in admitting certain testimony from a

police officer. Third, she contends that the substitution of

judges created a substantial risk of a miscarriage of justice.2

Finally, she claims that she received ineffective assistance of

counsel because trial counsel failed to object to the

substitution of judges, and failed to properly advise her about

the possibility of having her case continued without a finding

(CWOF), and thus the motion for a new trial was improperly

denied. We affirm.

1 The defendant was found not guilty of intimidation of a
witness. On the conviction of assault and battery by means of a
dangerous weapon, she was sentenced to six months in the house
of correction, thirty days to be served, with the balance
suspended for eighteen months. The committed portion of the
sentence was stayed pending appeal. On the conviction of
assault and battery, she was sentenced to eighteen months'
probation with certain conditions, including restitution.

2 As will be discussed in detail infra, three District Court
judges participated in this case: one judge ruled on pretrial
motions in limine on the day of trial, a second judge presided
over jury empanelment, and a third judge presided over the
trial.
3

Facts. On November 5, 2019, Paola Sapeda lived in a four-

bedroom apartment in Lawrence with her cousin, Juan Santiago,

and another roommate. (They used the fourth bedroom as a living

room.) Sapeda arrived at the apartment between 6 and 7 P.M.,

and found Santiago and another person drinking alcohol in the

living room, which they did regularly. Sapeda did not notice

anyone else in the apartment at that time. Sapeda went to her

bedroom around 7:30 P.M., and went to bed around 10:30 P.M. At

that time, she heard music and a party in the living room. At

approximately 11:30 P.M. Sapeda awoke to the sound of a "thump"

and could hear sounds like something was being dragged. Fearing

the dragging noise involved Santiago, she left her room and

"really got scared" because all the lights were turned off.

Sapeda went to Santiago's room and found him unconscious, on the

ground, with his pants pulled down. She took a photograph of

Santiago and sent it to family members, including Eddie Rafael

Munoz, whom she asked to come to the apartment.

Munoz arrived at the apartment and tried to pick Santiago

up, while Sapeda went to the living room, where the door was

locked. Someone opened the door, and Sapeda encountered a man

and woman who ignored Sapeda's questions about Santiago and

turned up the music. As Sapeda turned down the music, she was

confronted by the woman, who was later identified by Munoz as

the defendant. The defendant told Sapeda that she had no right
4

to turn down the music, that the apartment belonged to Santiago,

that Santiago was sleeping, and she told Sapeda to leave the

room. Sapeda told the defendant and the man to leave and if

they did not, she would call 911. The defendant then "lunged"

at Sapeda, pinned her against the wall, grabbed her by the hair

from behind, and hit her against the corner of the door. The

defendant then "stabbed" Sapeda in the head with the defendant's

car keys, pulled some of her hair out, and slapped her across

the face. She told Sapeda not to call 911.

After hearing Sapeda scream and call for him, Munoz arrived

in the living room where he saw that the defendant had cornered

Sapeda. Munoz witnessed the defendant "beating [Sapeda] . . .

pulling her hair out, . . . hit[ting] her over the head with

[the defendant's] key and cut[ting] [Sapeda's] head open."

Munoz did not know the defendant personally, but recognized her

as Salome because he "had just seen her before on videos and on

[Santiago's Snapchat] stories,"3 and in the past, he "would see

her out . . . in different businesses, different bars with

3 "Snapchat is a social media application [that allows
users] to publish . . . video recordings . . . [and] to share
text, photographs, and video recordings, collectively known as
'snaps'" (citation omitted). Commonwealth v. Carrasquillo, 489
Mass. 107, 108-109 (2022). A "story" is "shared with a larger
audience [than direct snaps], remain[s] visible for up to
twenty-four hours, and can be continuously replayed" (citation
omitted). Id. at 109.
5

[Santiago]." Munoz intervened by putting himself between the

defendant and Sapeda, and grabbing the defendant's hand. The

defendant dropped the keys at some point during the attack, and

Munoz picked them up so that the defendant could leave in her

car. Munoz "was able to take [the defendant] out of the

apartment, and lock[ed] the door." A wallet "that women . . .

usually use" was left behind, close to Sapeda's bedroom door.

Sapeda was treated at the hospital for, among other things,

a cut on her head that required staples to close it. Sapeda

brought the wallet to the police station the next day; the

wallet contained a Massachusetts identification card with the

defendant's name on it. A warrant issued for the defendant's

arrest.

Procedural background. Both the Commonwealth and the

defendant filed motions in limine regarding the in-court

identification of the defendant by Sapeda and Munoz. On the

morning of trial, after argument, a judge (motion judge) ruled

that she would not allow Sapeda to identify the defendant in

court. However, she ruled that Munoz could identify the

defendant in court "given that the representation is that

[Munoz] knew [the defendant] before the incident, saw her,

apparently, at the party, and recognized her."4 The motion judge

The Commonwealth represented that Munoz "is cousins with
4

someone the defendant knows. He has seen her multiple times at
6

then asked about a potential resolution to the case. The

defendant's attorney responded that she did not think a guilty

plea was likely. The prosecutor stated that the defendant did

not have a criminal record, and that she was "entitled to a

CWOF," but that Sapeda had some concerns about outstanding

medical bills. The motion judge then left to empanel a civil

case, said that she would "hold this" case, but never returned

to preside over the trial.

Approximately ninety minutes later, another judge appeared

and empanelled the jury (empanelment judge). He introduced

himself and said that his only role was to empanel the jury, and

that once the jury were selected, the motion judge would then

preside over the trial. After jury selection was completed, and

the jury were sworn, the empanelment judge provided preliminary

instructions to the jury. After a recess, neither the motion

judge nor the empanelment judge returned to the case. A

different judge presided over the remainder of the trial (trial

judge). The reasons for these changes do not appear in the

record. There was no objection to the substitutions of the

judges.

At trial, the Commonwealth called three witnesses: Sapeda,

Munoz, and Lawrence police Officer Jonathan Enriquez. On direct

events and parties . . . . He knows her name to be Salome . . .
and he'd recognized her voice [the night of the incident]."
7

examination, and in violation of the motion judge's pretrial

ruling, Sapeda spontaneously identified the defendant as a

person she saw inside the apartment on the night of the assault.5

The defendant objected, the trial judge struck the

identification from the record, and instructed the jury "not to

consider it." The defendant's theory at trial was that she was

misidentified as the person who perpetrated the crimes, and that

the identification card left at the apartment was either left

there at an earlier time, or was a fraudulent identification.

Discussion. 1. Trial issues. a. In-court

identification. We review the ruling to permit Munoz to make an

in-court identification of the defendant for an abuse of

discretion. See Commonwealth v. Dew, 478 Mass. 304, 315 (2017).

"[A] judge's discretionary decision constitutes an abuse of

discretion where we conclude the judge made 'a clear error of

judgment in weighing' the factors relevant to the decision, such

that the decision falls outside the range of reasonable

alternatives" (citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

5 When Sapeda was asked on direct examination if she saw
anybody else in the house, Sapeda responded, "Yes. I headed to
the living room. The living room was locked with keys, and when
I opened the door, that's when the young lady that's here came
out."
8

Relying on Commonwealth v. Crayton, 470 Mass. 228 (2014),

the defendant argues that the trial judge erred in allowing

Munoz to make an in-court identification of her because, where

there was no out-of-court identification procedure, there was no

other good reason for its admission. However, "there may be

'good reason' for the first identification procedure to be an

in-court showup where the eyewitness was familiar with the

defendant before the commission of the crime, such as where a

victim testifies to a crime of domestic violence." Id. at 242.

This is so because "the witness is not identifying the defendant

based solely on his or her memory of witnessing the defendant at

the time of the crime," and therefore "there is little risk of

misidentification arising from the in-court showup despite its

suggestiveness." Id. at 243. The defendant bears the burden of

proving there was not good reason for the in-court

identification. See id.

Here, there was no prior identification procedure, so the

question is whether the defendant met her burden to prove that

there was no good reason for the in-court identification

procedure. We conclude that she did not. The defendant

contends that in order for a witness to make an in-court

identification under the circumstances presented here, "some

kind of significant relationship between the defendant and the

witness" must exist. But this contention misreads Crayton and
9

its progeny. While Crayton explained that a case involving

domestic violence was the type of case where "good reason" may

exist for an in-court identification, see Crayton, 470 Mass. at

242, it did not exclude all other types of cases. To be sure,

in Crayton the court was concerned with in-court identifications

that were "based solely on [an eyewitness's] memory of

witnessing the defendant at the time of the crime." Id. at 243.

But this did not foreclose the possibility that good reason for

an in-court identification may exist in circumstances where the

identifying witness becomes more familiar with the defendant

during and in the moments immediately after the commission of

the crime. See id. at 242. Put differently, the inquiry is the

degree to which "the eyewitness [is or becomes] familiar with

the defendant." Id. Here, Munoz was familiar with the

defendant before the crime (from seeing her out with Santiago

and viewing her on social media), and he interacted with her

during the crime, including physically placing himself in such a

way as to prevent further injury to Sapeda.

Although the relationship between the defendant and Munoz

was perhaps less "extensive and intensive," Commonwealth v.

Fielding, 94 Mass. App. Ct. 718, 723 (2019), than the

relationships at issue in domestic violence cases, see Crayton,

270 Mass. at 243, it was nonetheless sufficient to meet the

"good cause" standard for these purposes. Although Munoz
10

testified that he did not know the defendant, he testified that

he had just seen her before on Santiago's "videos and . . .

stories," and in the past, he saw her "out, . . . in different

businesses, different bars with [Santiago]." Importantly, Munoz

heard Sapeda yell out for help, saw that the defendant had

cornered Sapeda, and witnessed the defendant punch Sapeda and

pull her hair. Munoz got in the middle of the two women, and

grabbed the defendant's hand to stop the attack. Eventually

Munoz was able to "take" the defendant out of the apartment and

lock the door. Munoz's prior familiarity with the defendant, as

contemplated by Crayton, alone supports the trial judge's

ruling. However, here, we have more. Munoz's interactions with

the defendant during and immediately after the crime provided

him with an "intensive opportunity to observe" the defendant.

Fielding, 94 Mass. App. Ct. at 723. This serves as additional

support for admitting the identification. Accordingly, we

conclude that the judge did not abuse his discretion in

permitting Munoz to identify the defendant. And although the

defendant's theory at trial was misidentification, it was up to

the "jury to decide what weight to give [Munoz's]

identification" of her (citation omitted). Commonwealth v.

Rivera, 91 Mass. App. Ct. 796, 801 (2017). In addition to

Munoz's testimony, among the other evidence for the jury to

consider as to whether the defendant was the perpetrator of the
11

crimes was the defendant's Massachusetts identification card

that was found in the apartment.

Finally, the defendant's reliance on Commonwealth v. Ortiz,

487 Mass. 602 (2021), is misplaced. There, the court concluded

that it was error for a police officer who engaged in one

undercover drug purchase from the defendant to make an in-court

identification, because there was no evidence that the

identifying officer had prior knowledge of or a subsequent

interaction with the defendant. Id. at 609-610. By contrast,

here Munoz had familiarity with the defendant before the night

of the assault, and from the assault itself, when he intervened

to prevent Sapeda from being further victimized.

b. Substitution of judges. The defendant next claims that

the substitution of judges was a violation of Mass. R. Crim. P.

38 (a), 387 Mass. 916 (1979) (rule 38), and thus created a

substantial risk of a miscarriage of justice. We are not

persuaded. Rule 38 (a) provides in pertinent part that

"[i]f by reason of death, sickness, or other disability the
judge before whom a jury trial has commenced is unable to
proceed with the trial, any other judge of that court,
. . . upon certifying in writing that he has familiarized
himself with the record of the trial, may proceed with and
finish the trial."

The purpose of this rule is to ensure that the judge making

decisions about jury instructions, admission of evidence, and

other such trial matters has the necessary knowledge of the
12

trial evidence to make informed rulings. Consistent with this

purpose, the rule, by its own terms, applies only once a jury

trial has commenced. A jury trial commences when jeopardy

attaches, and jeopardy attaches "when the jurors are sworn"

(citation omitted). Commonwealth v. Santa Maria, 97 Mass. App.

Ct. 490, 497 n.11 (2020). The defendant cites to no case, and

we have found none, that stands for the proposition that rule 38

applies before a jury are sworn.

With these principles in mind, we turn to the question of

when the trial commenced. The jury were sworn immediately upon

their empanelment, and therefore that is when the trial

commenced. In arguing a violation of rule 38, the defendant

claims that we must consider the three judges involved in this

case on the scheduled trial date: the motion judge, the

empanelment judge, and the trial judge. While the motion judge

ruled on pretrial motions that went to the heart of the defense

(identification), and inquired about the possibility of

resolving the case before trial, she had no role in the case

once the trial commenced, and therefore the motion judge is

excluded from the rule 38 analysis. It is hardly unusual for

judges other than the trial judge to make pretrial rulings that

govern what evidence will be admissible at trial, and this poses

no challenges to the efficient administration of justice, as

pretrial rulings are open to reconsideration by the trial judge.
13

See, e.g., Commonwealth v. Gonzalez, 469 Mass. 410, 415-416

(2014) (trial judge may revisit motion judge's denial of motion

to suppress); Commonwealth v. Spencer, 465 Mass. 32, 43 (2013)

("rulings on . . . motions in limine are preliminary and can be

revisited as the evidence unfolds at trial").

Our analysis is therefore limited to the empanelment judge

and the trial judge, both of whom were involved in this case

once the trial commenced, and therefore fall directly within the

ambit of rule 38. Here, there is no evidence in the record that

the empanelment judge was sick or disabled, requiring his

substitution under the rule. Indeed, the record suggests

otherwise. The empanelment judge introduced himself to the jury

venire, explained that his role would be limited to empanelling

the jury, and announced that another judge would handle the

trial. Following empanelment, he gave the jury preliminary

instructions, and recessed the case. When the case resumed,

neither the motion judge nor the empanelment judge returned.

Instead, the trial judge presided over the case from the opening

statements through the jury verdict. The trial judge did not

certify in writing that he had familiarized himself with the

record of the trial, such as it existed at that time, as

provided by rule 38, nor did the defendant object.

Rule 38 does not contemplate the substitution of a judge

once the jury trial begins unless the trial judge becomes
14

disabled from continuing (or the parties consent). See

Reporters' Notes to Rule 38, Mass. Ann. Laws Court Rules, Rules

of Criminal Procedure (LexisNexis 2023-2024). Nonetheless,

because the substitution occurred before evidence was taken, the

improper substitution did not intrude on the interests rule 38

is designed to protect. Moreover, although the motion judge

(who we conclude was not subject to rule 38) excluded Sapeda's

identification and allowed Munoz's identification pretrial, the

trial judge ruled properly on objections made as to these

identifications contemporaneously as the evidence unfolded at

trial. And there was no evidence that the Commonwealth sought

to exploit the change of judges. Consistent with these facts,

there was no substantial risk of a miscarriage of justice, as

the defendant suffered no prejudice.

The defendant claims that she was prejudiced by the

substitution of judges in two ways. First, she claims prejudice

because Sapeda identified the defendant in violation of the

motion judge's pretrial ruling. However, her objection was

sustained, the identification was stricken, and the jury were

instructed not to consider it. "We presume, as we must, that a

jury understand[] and follow[] limiting instructions" (citation

omitted). Commonwealth v. Martinez, 476 Mass. 186, 194 (2017).

That defense counsel explicated the basis of his objection at

sidebar does not change the result. There is no reason to think
15

that this would have been different had the empanelment judge

completed the trial. Moreover, the trial judge instructed the

jury in the preliminary charge that they were "not [to] look

negatively on any lawyer" for lodging an objection. He

reiterated in his final instructions that the jury were "not to

consider any answer that [he] struck from the record and told

[them] to disregard." The jury are presumed to follow the

judge's instructions. See Commonwealth v. Cheremond, 461 Mass.

397, 414 (2012).

Next the defendant claims that she was prejudiced because

the trial judge was "not positioned adequately to address

[Munoz's] identification testimony." Again, there is no reason

to believe that the empanelment judge would have been better

positioned. In any event, the trial judge was in the best

position to make contemporaneous rulings on objections. For

example, he overruled an objection to a question asked of Munoz

regarding his familiarity with the defendant. This is evidence

that the trial judge understood and was aware that Munoz's

familiarity with the defendant was necessary to properly admit

the in-court identification. The defendant points out that

Munoz did not testify that he recognized the defendant's voice,

which the prosecutor included in her proffer in connection with
16

the motion. While this is true,6 Munoz did testify about his

familiarity and recognition of the defendant consistent with the

prosecutor's proffer. See note 4, supra. This one discrepancy

does not render the in-court identification inadmissible. In

fact, whether Munoz could identify the defendant's voice was

hardly critical to the question of whether Munoz could identify

the defendant's appearance. There was no error, let alone a

substantial risk of a miscarriage of justice. See Commonwealth

v. Azar, 435 Mass. 675, 687 (2002) (substantial risk of

miscarriage of justice created where "we have a serious doubt

whether the result of the trial might have been different"

[citation omitted]).

c. Admission of testimony. The defendant claims that the

trial judge's failure to strike testimony elicited from Officer

Enriquez on cross-examination was error. Specifically, defense

counsel elicited testimony from Enriquez about the

identification information for the defendant that he listed in

his police report. Defense counsel asked if "under race,

[Enriquez] wrote 'black.'" Enriquez responded to defense

6 We note that in arguing the motions in limine, the
prosecutor represented that Munoz knew the defendant's name and
would recognize her voice. At the trial, Munoz testified that
he did not hear the defendant's voice on the night of the
assault, except when she said she did not want to leave. He was
not asked whether he knew the defendant's name or would
recognize her voice.
17

counsel's question as follows: "So I didn't -- So, that –- She

was already in our in-house system, which is entered -- may have

been entered by someone else. I don't know who entered it, but

she was already in there. We've had either some sort of other

involvement. I did not put the race in there." Defense

counsel's motion to strike the answer was denied.

"Questions of admissibility, probative value, and unfair

prejudice are left to the sound discretion of the trial judge,

and will not be overturned absent clear error." Commonwealth v.

Philbrook, 475 Mass. 20, 26 (2016). Although the defendant

suggests Enriquez's testimony was unresponsive to the question

asked, we note that Enriquez was asked whether he wrote "Black"

under race, and he responded that her race was already in the

"system." This answer explained why it was inaccurate to say

that Enriquez filled in the race information in the police

report.7 However, even if the answer was not responsive, it may

otherwise be admissible. See Commonwealth v. Errington, 390

Mass. 875, 879 (1984). The defense at trial was

misidentification. This evidence went directly to that defense

-- whether the correct person was charged with the crime.

Indeed, by challenging Enriquez's good faith actions in

7 We observe that the choice of the term "our in-house
system" was better left unsaid, or could have been put
differently.
18

investigating the assault, "defense counsel invited a fuller

explanation' of Enriquez's reasons for charging the defendant

(citation omitted). Commonwealth v. Harris, 481 Mass. 767, 782-

783 (2019).

Additionally, there are many reasons why someone's

information may be in the "system." See Commonwealth v. Martin,

447 Mass. 274, 286 (2006) (no error to show mugshot where

necessary for identification, because there was "nothing to

suggest that it was taken in connection with an arrest rather

than in relation to an application for a firearm, a taxicab

license, or any other police business"). The testimony did not

imply any past criminal action of the defendant and therefore it

did not constitute prior bad act evidence. See Commonwealth v.

Veiovis, 477 Mass. 472, 481-482 (2017). See also Mass. G. Evid.

§ 404(b) (2024).

Finally, the defendant did not meet her burden to prove

that she suffered prejudice based on this evidence. See

Commonwealth v. Grier, 490 Mass. 455, 476 (2022). The testimony

was not repeated, and the Commonwealth did not mention the

testimony in its closing argument. See id. at 477-478.

Moreover, experienced defense counsel did not request a limiting

instruction, suggesting that she did not want to call further

attention to this testimony. See Commonwealth v. Lao, 460 Mass.

12, 21 (2011). And the jury's acquittal of the defendant on one
19

charge suggests that they were not improperly influenced by this

testimony. See Commonwealth v. Sosnowski, 43 Mass. App. Ct.

367, 372 (1997).

2. Motion for a new trial. The defendant claims that her

trial counsel provided ineffective assistance because she failed

to properly advise the defendant about the possibility of a

CWOF.8 A motion for new trial may be granted only "if it appears

that justice may not have been done." Mass. R. Crim. P. 30 (b),

as appearing in 435 Mass. 1501 (2001). Such motions are

committed to the sound discretion of the judge, Commonwealth v.

Moore, 408 Mass. 117, 125 (1990), and "are granted only in

extraordinary circumstances," Commonwealth v. Comita, 441 Mass.

86, 93 (2004). "Reversal for abuse of discretion is

particularly rare where, [as here] the judge acting on the

motion was also the trial judge" (citation omitted).

Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018). When

8 In a footnote in her brief, the defendant also contends
that trial counsel's failure to object to the substitution of
judges was ineffective assistance. As to the latter claim, the
Commonwealth argues that the defendant did not preserve this
claim "as the issue was not properly briefed and is only
referenced in a footnote." We agree with the Commonwealth that
this does not rise to the level of appellate argument under
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019), and thus we need not consider it. See Commonwealth v.
Minon, 102 Mass. App. Ct. 244, 250 (2023). However, even if we
considered the merits of this claim, the defendant would fare no
better for the reasons addressed supra.
20

a motion for a new trial is based on ineffective assistance of

counsel, the defendant must show that the behavior of counsel

fell measurably below that of 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). See Commonwealth v. Millien,

474 Mass. 417, 432 (2016) (second prong of ineffective

assistance test met if there is substantial risk of miscarriage

of justice arising from counsel's failure).

The record does not support the defendant's contention that

she received ineffective assistance because trial counsel failed

to properly advise her about the possibility of a CWOF. While

trial counsel was required to communicate any formal plea offer

to her client, see Commonwealth v. Marinho, 464 Mass. 115, 127

(2013), no such offer was made here. In response to the motion

judge's inquiry about a potential resolution to the case, the

prosecutor stated that the defendant "doesn't have a Board of

Probation record, so, she is certainly entitled to a CWOF. I

think the victim's main concern is she's had some outstanding

medical bills, and just wants her held accountable."9 This was

9 It is true that the crime of assault and battery by means
of a dangerous weapon did not carry a mandatory minimum
sentence, see G. L. c. 265, § 15A (b), and that the defendant
could request a CWOF, even if the Commonwealth did not agree to
this disposition. See G. L. c. 278, § 18.
21

not a formal plea offer, as confirmed by the prosecutor's

statement at the sentencing hearing that she "did not offer a

CWOF in this case." More importantly, as discussed infra, there

is no reasonable probability that the defendant would have

accepted a plea offer that required her to admit to sufficient

facts. This is particularly true where the defendant pursued a

vigorous misidentification defense at trial.

In support of her motion for a new trial, the defendant

filed an affidavit from, among others, her trial attorney.

Trial counsel affirmed that shortly after meeting with the

defendant for the first time, she discussed "the possibility of

a plea, explained the types of pleas, including [CWOF],

probation and restitution." As it got closer to the time of

trial, trial counsel explained that she "did not spend as much

time as [she] usually would explaining the nuances of a [CWOF],

or of a felony conviction to [the defendant]. [Trial counsel]

was more focused on the trial." Trial counsel observed that the

defendant "had concerns regarding collateral consequences and

restitution. [Trial counsel] could not answer all of [the

defendant's] questions relative to if a CWOF would impact her

school and her career." As the affidavits of trial counsel and

of the defendant confirm, the defendant had never met Munoz and

therefore they believed the defense of misidentification was

strong. Although ultimately the defendant was convicted of some
22

of the charges, Sapeda was not permitted to identify her at

trial, Munoz's identification of the defendant was aggressively

challenged, and the jury were provided alternative theories

about the identification card left at the apartment. That this

approach was unsuccessful does not make it manifestly

unreasonable. See Commonwealth v. Watson, 455 Mass. 246, 258

(2009).

On the day of trial, trial counsel informed the motion

judge that she had confirmed with her client that the defendant

"still did not want to plea or admit to the facts." The choice

to plead guilty or to proceed to trial belongs solely to the

defendant, and trial counsel properly left that decision to her.

That the jury convicted the defendant is not evidence that trial

counsel was ineffective. See Commonwealth v. Norris, 483 Mass.

681, 690 (2019). Trial counsel's strategy was reasonable, and

"reasonableness does not demand perfection." Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015). It did not fall

measurably below that which might be expected from an ordinary

fallible lawyer. See Saferian, 366 Mass. at 96.

In addition, the defendant cannot demonstrate prejudice.

To meet her burden of establishing prejudice,

"in the plea context, the defendant must show a reasonable
probability that the result of the plea would have been
more favorable than the outcome of the trial. In
particular, the defendant must demonstrate a reasonable
probability that the prosecution would have made an offer,
23

that the defendant would have accepted it, and that the
court would have approved it." (Citations omitted.)

Marinho, 464 Mass. at 129.

As set forth supra, the Commonwealth did not offer a CWOF,

and perhaps more significantly, it was highly unlikely that the

defendant would have accepted such an offer. A CWOF disposition

"requires that the defendant tender a plea of guilty (or admit

to sufficient facts) as precondition to such a disposition."

Commonwealth v. Powell, 453 Mass. 320, 324 (2009). "An

'admission to sufficient facts' . . . means an admission to

facts sufficient to warrant a guilty finding." Commonwealth v.

Duquette, 386 Mass. 834, 838 (1982). Based on the defendant's

persistent and robust defense throughout this case that she had

been misidentified, she has failed to meet her burden to show

that she would have accepted a CWOF with a precondition of an

admission to sufficient facts. We therefore conclude that the

defendant failed to demonstrate prejudice, or put differently,

that "better work might have accomplished something material for

the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115

(1977).

Finally, the trial judge did not err in ruling on the

motion for new trial without an evidentiary hearing. "If the

theory of the motion, as presented by the papers, is not

credible or persuasive, holding an evidentiary hearing to have
24

the witnesses repeat the same evidence (and be subject to the

prosecutor's cross-examination further highlighting the

weaknesses in that evidence) will accomplish nothing."

Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004).

Judgments affirmed.

Order denying motion for
new trial affirmed.