Commonwealth v. Daniel P. Tompkins.

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

24-P-26

COMMONWEALTH

vs.

DANIEL P. TOMPKINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order allowing the

defendant's motion for a new trial pursuant to Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). In 2011,

following a bench trial, the defendant was found guilty of two

counts of manslaughter while operating a motor vehicle under the

influence, in violation of G. L. c. 265, § 13 1/2; two counts of

involuntary manslaughter, in violation of G. L. c. 265, § 13;

two counts of felony motor vehicle homicide, in violation of

G. L. c. 90, § 24 G (a); and one count of negligently operating

a motor vehicle while under the influence resulting in serious

bodily injury, in violation of G. L. c. 90, § 24 L.
These convictions arose from a car accident in which the

defendant was allegedly driving while intoxicated and which

resulted in the deaths of two passengers. In 2019, the

defendant filed a motion for a new trial claiming his trial

attorney was ineffective for, inter alia, failing to consult or

call a blood spatter expert and a medical expert, whose

testimony would have collectively created a reasonable doubt as

to whether the defendant was the driver of the vehicle at the

time of the accident. After conducting a nonevidentiary

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

the motion in a written decision. On appeal from the motion, a

panel of this court reversed the judge's order and remanded the

case back to the Superior Court for an evidentiary hearing.

Following a three-day evidentiary hearing before the same judge,

the judge issued a comprehensive eighteen-page decision in which

he reversed his prior ruling and allowed the defendant's motion

for a new trial. We affirm.

Background. We summarize the relevant facts while

reserving certain facts for discussion below.

This case involved a horrific automobile crash on the

evening of June 20, 2007. The primary question at trial was

whether the defendant or Jeffrey Blake (Blake), another occupant

in the vehicle, was driving the defendant's sport utility

vehicle (SUV) at the time of the crash. Tragically, their

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girlfriends, Melissa Duff and Heather Buffum, were killed in the

accident. At the evidentiary hearing, Elizabeth Laposata, M.D.

(Laposata), and forensic consultant Paul Kish (Kish) provided

expert testimony on behalf of the defendant, and Jacob L.

Fisher, Ph.D., P.E., testified on behalf of the Commonwealth.

In his written decision allowing the defendant's motion for a

new trial, the judge summarized the testimony of each of the

experts and ultimately concluded that the defendant's trial

counsel was ineffective for failing to consult with or call a

blood spatter expert especially where the "quantity and location

of Blake's blood found around the driver's seat . . . was the

core of his defense."1 The judge specifically relied on the

testimony of Kish and Laposata who each concluded, inter alia,

that Blake's bloodstains found in the driver's compartment were

consistent with his bleeding in the driver's seat after the

vehicle had come to rest, as opposed to the blood being

transferred from Blake to the driver's compartment during the

crash.2 In evaluating whether this missing testimony "might have

have influenced the jury's conclusions," the trial judge wrote:

1 Neither party takes issues with the judge's summary of the
experts' testimony.

2 The trial judge did not credit Laposata's biomechanical
accident reconstruction testimony, finding she failed to meet
the requisite criteria pursuant to Daubert/Lanigan to offer such
an opinion.

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"This bloodstaining testimony of the defendant's
experts was not so devoid of credibility that a fact
finder could not have believed it. In fact, the
testimony is compelling. Although expressed as expert
scientific testimony, it displays a commonsense
quality of believability. The blood droplets appear
to be free from the physical forces associated with
the rolling, tumbling and crashing of the vehicle;
forces that you would expect would smear and distort
the droplets. Such a display would not be expected if
the shedding of the blood occurred before the vehicle
came to rest.

". . .

"A motion for a new trial is seldom granted and for
good reason; such motions should only be granted with
great reticence considering the prejudice to the
Commonwealth and society's interest in resolving
yesterday's problems with finality. Here, however,
the nature of the Commonwealth's evidence, along with
the performance of trial counsel which fell measurably
below that which might be expected from an ordinary
fallible lawyer, leaves the Court with a compelling
belief that justice may not have been done in this
case. I am not confident that the verdict would have
been the same, were it not for trial counsel's
'failure to introduce the most compelling evidence of
the defendant's [theory].' Commonwealth v Salazar,
481 Mass. 105, 113 (2018)."

Discussion. The Commonwealth argues that the trial judge

erred and abused his discretion in allowing the defendant's

motion for a new trial because trial counsel's decision to forgo

a blood spatter expert was a reasonable strategic decision, and

the blood spatter evidence would not have provided the defendant

with a substantial ground of defense. The arguments are

unavailing.

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A defendant may obtain a new trial under Mass. R. Crim. P.

30 (b), "if it appears that justice may not have been done."

However, an appellate court will review the decision "only to

determine whether there has been a significant error of law or

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

303, 307 (1986). A defendant may prevail on a motion for new

trial claiming ineffective assistance of counsel only after

showing "serious incompetency, inefficiency, or inattention of

counsel . . . falling measurably below that which might be

expected from an ordinary fallible lawyer," which "likely

deprived the defendant of an otherwise available, substantial

ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). A defense is substantial if a reviewing court has

"serious doubt[s] whether the jury verdict would have been the

same had the defense been presented." Commonwealth v. Millien,

474 Mass. 417, 432 (2016).

When the ineffective assistance claim is "based on a

tactical or strategic decision, the test is whether the decision

was '"manifestly unreasonable" when made.'" Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v.

Acevedo, 446 Mass. 435, 442 (2006). Manifestly unreasonable

decisions refer only to "strategy and tactics which lawyers of

ordinary training and skill in the criminal law would not

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consider competent." Kolenovic, supra, quoting Commonwealth v.

Pillai, 445 Mass. 175, 186-187 (2005).

The Commonwealth contends that it was a reasonable strategy

for the defendant's trial counsel to proceed to trial without

consulting or calling a blood spatter expert because, even in

the absence of expert testimony, the defendant was still

equipped with ample exculpatory evidence. According to the

Commonwealth, this evidence included Blake's blood in the

driver's compartment, testimony from three different witnesses

that Blake had a steering wheel shaped bruise on his chest, and

eyewitness testimony from a civilian who saw two women sitting

in the backseat of the SUV when it left a boat ramp shortly

before the crash. The Commonwealth also cites an affidavit

provided by the defendant's appellate counsel detailing a

conversation with his trial counsel who explained that he

thought that consulting a blood stain expert was unnecessary

because "he believed that the DNA results alone -– showing only

Blake's DNA in the blood tested in and around the driver's seat

area –- would be enough for a fact-finder to conclude there was

reasonable doubt about who was driving." Given this affidavit

as well as the purported abundance of exculpatory evidence, the

Commonwealth asserts that the trial judge impermissibly relied

on hindsight to mischaracterize a merely unsuccessful defense as

a manifestly unreasonable one. We disagree.

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In light of the undisputed facts of the crash, the trial

judge did not need the benefit of hindsight to conclude that

trial counsel was ineffective for failing to consult a blood

spatter expert. In fact, it was the blood experts' testimony

which formed the foundation for his changed conclusion. For

example, it was undisputed at trial that the SUV struck a

guardrail traveling in excess of eighty-five miles per hour,

rolled over multiple times, and that at least three of the four

occupants were ejected from the vehicle. It seems self-evident

from the brutality of the accident that DNA evidence from any of

the occupants could be found in any part of the vehicle; a fact

that was seized on by the Commonwealth during trial as a "strong

and convincing rebuttal" to the evidence that only Blake's DNA

was found in the driver's compartment. Therefore, we agree with

the judge that trial counsel's decision to forgo any expert

consultation or analysis of the DNA evidence in favor of

presenting readily controvertible evidence was manifestly

unreasonable. Kolenovic, 471 Mass. at 674. Furthermore, expert

testimony that Blake was bleeding in the driver's seat following

the crash, while not dispositive of the fact that Blake was the

driver of the vehicle, would have substantially bolstered the

core of the defendant's defense. Accordingly, we find no abuse

of discretion in the trial judge's decision allowing the

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defendant's motion for a new trial following the evidentiary

hearing. Grace, 397 Mass. at 307.

Order allowing motion for a
new trial affirmed.

By the Court (Meade,
Desmond & D'Angelo, JJ.3),

Clerk

Entered: April 25, 2025.

3 The panelists are listed in order of seniority.

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