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SJC-10079
COMMONWEALTH vs. DENNIS M. BATEMAN.
Franklin. October 14, 2025. - February 20, 2026.
Present: Budd, C.J., Kafker, Wendlandt, Georges, & Wolohojian, JJ.
Homicide. Evidence, Sound recording, Disclosure of evidence, Exculpatory, Impeachment of credibility, Expert opinion. Practice, Criminal, Disclosure of evidence, Assistance of counsel, New trial. Witness, Impeachment, Expert.
Indictments found and returned in the Superior Court Department on July 8, 2005.
Following review by this court, 492 Mass. 404 (2023), a motion for a new trial, filed on December 4, 2020, was heard by John A. Agostini, J.
Amy L. Codagnone for the defendant. Steven E. Gagne, Assistant District Attorney, for the Commonwealth.
KAFKER, J. The defendant, Dennis M. Bateman, was convicted
of two counts of murder in the first degree for the deaths of
Brandy Waryasz and her viable, unborn child. The defendant
appealed from the convictions and filed a motion for a new trial 2
alleging numerous issues, which we remitted to the Superior
Court. The motion judge, who was also the trial judge, denied
the motion, and the defendant appealed. The direct appeal was
joined with the appeal from the denial of the motion for a new
trial. After plenary review, we affirmed the murder convictions
and the denial of the motion for a new trial, and we declined to
grant extraordinary relief pursuant to G. L. c. 278, § 33E. See
Commonwealth v. Bateman, 492 Mass. 404, 405-406 (2023).
While the consolidated appeal was pending, the defendant
filed a second motion for a new trial, and he amended that
motion twice prior to the issuance of the rescript for the
consolidated appeal. We remitted the second motion for a new
trial to the Superior Court; the same judge who had presided at
the trial denied the motion, and the defendant appealed. The
defendant now argues that the judge erred in concluding he was
not entitled to a new trial due to (1) the Commonwealth's
failure to disclose a segment of an audio recording of a police
interview with a potential trial witness, (2) newly discovered
anomalies that cast doubt on the authenticity of audio
recordings of the defendant's second interview with police
officers, or (3) ineffective assistance of both trial and prior
appellate counsel. We affirm. 3
1. Background. We present the relevant factual background
as proven at trial,1 as well as the procedural history. We
reserve certain facts from the record for the instant appeal for
later discussion.
a. The homicide. On Saturday, April 16, 2005, Waryasz,
who was thirty to thirty-two weeks pregnant, was working a shift
from 2 P.M. to 9 P.M. as the sole attendant at a gasoline
station located in Deerfield. The defendant, a forty year old,
African-American man with a history of "crack" cocaine use,
stopped by the gasoline station during Waryasz's shift --
although his precise arrival and departure times are unclear.
Between 5 P.M. and 6:30 P.M., however, several witnesses saw the
defendant's distinctive, black 1988 Ford Econoline van parked
outside of the gasoline station's office building and the
defendant speaking to Waryasz.2 During a lull in customers
sometime around 6:30 P.M., the defendant attacked Waryasz,
1 The evidence presented in the defendant's trial is summarized in more detail in Commonwealth v. Bateman, 492 Mass. 404, 406-410 (2023). We provide a condensed version of events here, with a particular focus on facts, as the jury could have found them, relevant to the issues before us.
2 One of these witnesses was David Williams, who reported seeing the van at approximately 6:30 P.M. Williams "immediately" recognized the van as the defendant's because he had sold black spray paint to the defendant, and when making the purchase, the defendant showed Williams the van and said he intended to paint his van black. Williams thus recognized the van's distinctive "spray can paint job." 4
tightly wrapping a ligature -- a black nylon-like belt or strap
-- around her neck and tying it in a knot in the rear. He left
her lying in one of the gasoline station's service bays, took
the cash register to his van, and drove away. At approximately
6:42 P.M., a customer entered the gasoline station's office
building to purchase gasoline but found no one inside. The
customer then walked into the service bay adjoining the office
and found Waryasz's body lying on the ground. Both Waryasz and
her unborn child died as a result of the ligature cutting off
Waryasz's airflow. The cash register, as well as the
approximately $350 that had been in it, were never recovered.
The defendant, meanwhile, had driven back to Greenfield.
He was observed with "lots of money" at various points
throughout the night, and he purchased and smoked $250 worth of
crack cocaine with multiple companions. The defendant also
periodically asked his companions to make sure his family was
taken care of "if anything happen[ed] to him" because he had
"messed things up." In the days that followed, the defendant
pressed some of those he encountered on April 16 to confirm that
he was in Greenfield at or about the time of the murders. All
those he approached, however, had seen him either before or
after the time of the murders.
b. The investigation. On April 18, 2005, police officers
interviewed the defendant at the district attorney's office in 5
Greenfield. Approximately the first hour of the interview was
not audio recorded. Instead, police drafted a written statement
based on what the defendant revealed during that hour, which the
defendant reviewed, signed, and then read aloud so that it could
be audio recorded. While at the district attorney's office, the
defendant made several unsolicited, incriminating statements to
the officers. The defendant told one interviewing officer, "You
know, we were only horsing around, [Waryasz] and I, pushing and
shoving." The officer asked the defendant what he meant, and
the defendant explained that Waryasz had been snapping a black
belt at him. The defendant had not mentioned the belt during
the interview, and the police had not yet publicly disclosed
that Waryasz had been strangled. Shortly thereafter, the
defendant again brought up the belt without prompting when
another interviewing officer drove him back to his house. These
statements led the officers to identify the defendant as a
potential person of interest. Two days later, on April 20,
2005, the defendant agreed to a follow-up interview at the
district attorney's office with Detective Lieutenant John
Gibbons and Sergeant Gary Gadreault. Unlike his first
interview, this interview was recorded.
Later in the investigation, a deoxyribonucleic acid (DNA)
profile was generated from the biological material found on the
ligature with which Waryasz was strangled. Analysis of the 6
profile revealed that it contained a mixture of DNA, and the
defendant's DNA matched the major profile in the mixture. The
defendant was also identified as a potential contributor to a
mixture of DNA recovered from Waryasz's fingernails.
Before the defendant was indicted for the murders, he was
incarcerated after an arrest on other charges. During this
time, he made several incriminating statements to two fellow
detainees. In a conversation with one such detainee, the
defendant confessed to murdering Waryasz.
c. The trial and consolidated appeal. On July 8, 2005,
the defendant was indicted for the murders of Waryasz and her
unborn child, as well as for armed robbery. The defendant's
trial took place over the course of twelve days in May 2007. At
trial, the defendant argued in part that the police
investigation was inadequate and unduly focused on him as the
perpetrator (Bowden defense). See Commonwealth v. Bowden, 379
Mass. 472, 485-486 (1980).
On May 25, 2007, a jury convicted the defendant of murder
in the first degree for the killing of Waryasz, on theories of
deliberate premeditation and felony-murder; murder in the first
degree for the killing of Waryasz's unborn child, on a theory of
felony-murder; and armed robbery. The defendant timely
appealed. On August 31, 2018, the defendant filed his first
motion for a new trial, which was remitted to the Superior 7
Court. At the same time, the defendant filed a motion to amend
the motion for a new trial at a later date, and a motion for
funds for an audio analysis expert to analyze the audio
recordings of the defendant's second interview with the police,
both of which the court allowed. On October 4, 2018, the
defendant filed an amended motion for a new trial, raising three
additional issues unrelated to the audio recordings. Throughout
2019, the defendant filed further motions for funds for an audio
analysis expert, which were granted each time.
On August 21, 2019, the defendant sought to amend his
motion for a new trial a second time with an audio expert's
analysis, which the Commonwealth moved to strike as unreasonably
late. On August 30, 2019, the judge granted the Commonwealth's
motion to strike the supplement and denied the defendant's
motion for a new trial in a written decision. The defendant
appealed from the decision, and that appeal was consolidated
with the direct appeal from his convictions.
On July 17, 2023, we affirmed the murder convictions and
the denial of the first motion for a new trial, and we vacated
the armed robbery conviction as duplicative of the conviction of
murder of Waryasz's unborn child. See Bateman, 492 Mass. at 438
("Except where a conviction of murder in the first degree is
based on a theory in addition to a theory of felony-murder, a
separate conviction of an underlying felony is duplicative of 8
the felony-murder conviction"). We also conducted plenary
review of the record pursuant to G. L. c. 278, § 33E, and found
no ground for relief. Id.
d. The second motion for a new trial. On December 4,
2020, while the direct appeal was pending, the defendant filed a
pro se second motion for a new trial, which we remitted to the
Superior Court for consideration in the first instance. He
later amended the motion, represented by current counsel,
asserting three claims. First, the defendant argued that he was
prejudiced by the Commonwealth's failure to timely disclose a
segment of an audio recording of a police interview with a
potential trial witness, which he viewed as exculpatory.
Second, the defendant argued that the expert analysis of the
audio recordings of the defendant's interview with police
constitutes newly discovered evidence, because it reveals
anomalies indicating that the recordings are not authentic and
have been manipulated. Third, the defendant raised two
ineffective assistance of counsel claims based on trial
counsel's failure to interview or call two witnesses, who had
made a U-turn at the gasoline station around the time of the
murders and did not recall seeing the defendant's van. The
defendant also argued that his prior appellate counsel was
ineffective for not arguing that trial counsel was ineffective
for these reasons. 9
On April 18 and 19, 2024, the judge conducted an
evidentiary hearing on whether the "anomalies" in the audio
recording of the defendant's April 20, 2005, interview suggested
that the recording was inaccurate or inauthentic. On September
17, 2024, the judge issued a written decision denying the
defendant's second motion for a new trial, rejecting all three
arguments raised by the defendant.
On November 12, 2024, the defendant filed a gatekeeper
petition in this court, pursuant to G. L. c. 278, § 33E, seeking
leave to appeal from the denial of his second motion for a new
trial. A single justice took no action on the defendant's
application because the defendant had filed the motion before
the issuance of the rescript following our decision concerning
his direct appeal. See G. L. c. 278, § 33E. Accordingly, the
defendant timely appealed, and the defendant's appeal from the
denial of his second motion for a new trial is before us
pursuant to § 33E.3
3 General Laws c. 278, § 33E, states, in pertinent part:
"In a capital case . . . the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence. . . . After the entry of the appeal in a capital case and until the filing of the rescript by the supreme judicial court motions for a new trial shall be presented to that court and shall be dealt with by the full court . . ." (emphases added). 10
2. Discussion. a. Scope and standard of review. "'[A]
motion for a new trial is addressed to the sound discretion of
the trial judge,' who may grant a new trial 'if it appears that
justice may not have been done.'" Commonwealth v. Jacobs, 488
Mass. 597, 600 (2021), quoting Commonwealth v. Kolenovic, 471
Mass. 664, 672 (2015), S.C., 478 Mass. 189 (2017). This court
reviews "a judge's denial of a motion for a new trial to
determine whether there was 'a significant error of law or other
abuse of discretion,' according 'special deference to the action
of a motion judge who was also the trial judge.'" Commonwealth
v. Morin, 478 Mass. 415, 424 (2017), quoting Commonwealth v.
Grace, 397 Mass. 303, 307 (1986). A judge's decision
constitutes an abuse of discretion when it results from "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). "A trial judge is
entitled to rely on [his] knowledge of what occurred at trial
when ruling on a motion for a new trial." Commonwealth v.
Chatman, 466 Mass. 327, 333-334 (2013), S.C., 473 Mass. 840
(2016).
b. Nondisclosure of exculpatory evidence. The defendant
first argues that the judge erred in denying his second motion
for a new trial because the Commonwealth failed to produce an 11
exculpatory portion of an audio recording of a police interview
with a witness. The witness, Mark Whalen, spent time with the
defendant on the day of the murders, and the Commonwealth
identified Whalen as a potential trial witness.
We review the relevant background. On April 26, 2005, ten
days after the murders, investigators interviewed Whalen. The
interview was recorded and consisted of three segments: (1) a
fifty-one minute and fifty-nine second segment, during which the
officers asked Whalen about what he did on the day of the
murders and his interactions with the defendant; (2) a fourteen
minute and forty-seven second segment, during which the officers
noted "technical difficulties" with the recorder and composed a
written statement summarizing what Whalen told them during the
first segment; and (3) a forty-one minute and fifty-eight second
segment, consisting of the reading aloud of the written
statement. The Commonwealth had disclosed the second and third
audio segments and Whalen's written statement to the defense
during pretrial discovery, but it had not disclosed the first
audio segment. The first audio segment was eventually taped
over with an unrelated interview -- an error that went
undiscovered until fifteen years after the trial in 2022.4
4 As the motion judge explained, "The [compact disc] which should have contained the initial segment of Whalen's audio recorded interview had been taped over with an unrelated 12
In the undisclosed audio segment, Whalen's account of the
day of the murders shifted several times. Eventually, he
described having two separate interactions with the defendant in
Greenfield on April 16. The first occurred "sometime in the
afternoon" when "it was light out" and the defendant, walking on
the side of the road, flagged down a pickup truck driven by
Wendy Miller in which Whalen was a passenger. The defendant got
into the back of the truck, Whalen sold the defendant one
hundred dollars' worth of crack cocaine, and Whalen noticed that
the defendant had a lot of money in his wallet. Later that day,
an acquaintance called Whalen and asked him to come to her
apartment. When Whalen arrived at the apartment, the defendant
was inside, and Whalen gave someone crack cocaine in exchange
for one hundred dollars.
At one point during the interview, an officer told Whalen
that the police had "reason to believe" the defendant brought a
cash register up to the apartment. Indeed, three days before
Whalen's interview, police officers had interviewed Greenfield
resident Mollie Simanski. Simanski told police officers that
Whalen had told her he had seen the defendant with a cash
register on the day of the murders. However, throughout the
interview. In 2022, the prosecution, during a Zoom [online video conferencing platform] meeting with the defendant's expert and Massachusetts State Police Trooper [Sergeant] Gary Darling, found the missing audio recording in cloud storage." 13
undisclosed recording, whenever the investigating officers asked
whether Whalen had seen the defendant with a cash register,
Whalen repeatedly said, "No."
The defendant posits that the nondisclosure of the
recording prejudiced him in three ways: (1) Whalen's recorded
statements about seeing the defendant in Greenfield in the
"afternoon" during "daylight" would have put his counsel on
notice that Whalen was a potential alibi witness; (2) the
officers' repetitive questioning about whether Whalen saw the
defendant with a cash register and failure to inquire into a
possible alibi for the defendant would have supported the
defendant's Bowden defense; and (3) the investigators'
interrogation tactics could have been used to impeach other
witnesses' testimony and undermine the credibility of the
investigation generally. Because the failure to disclose the
recording was not prejudicial, we conclude that denying the
defendant's motion for a new trial was not an abuse of
discretion or other error.
"A defendant seeking a new trial based on undisclosed
evidence has the burden to show that he or she was prejudiced by
the nondisclosure." Commonwealth v. Imbert, 479 Mass. 575, 582
(2018). The judge correctly found that the defendant
specifically requested the undisclosed evidence during pretrial 14
discovery.5 The question then becomes whether "a 'substantial
basis exists for claiming prejudice from the nondisclosure.'"
Bateman, 492 Mass. at 419, quoting Commonwealth v. Lykus, 451
Mass. 310, 326 (2008). "The defendant can meet his burden 'with
record support for the conclusion that the jury would have been
influenced by timely disclosure of the evidence in question.'"
Imbert, supra, quoting Commonwealth v. Bly, 448 Mass. 473, 486
(2007). "Put differently, we must decide whether there is a
reasonable possibility that the nondisclosed evidence would have
made a difference." Imbert, supra, quoting Commonwealth v.
Laguer, 448 Mass. 585, 594 (2007).6 In doing so, we "must
consider the strength of the case against the defendant."
Imbert, supra at 583, quoting Lykus, supra. We consider in turn
each type of prejudice claimed by the defendant.
i. Whether the defendant was prejudiced because the
recording would have put his counsel on notice that Whalen could
5 The judge correctly concluded that because Whalen was identified as a potential trial witness, the Commonwealth was required by Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501 (2005), to provide the defendant with all of Whalen's statements in its possession during pretrial discovery, and this requirement is "deemed a specific request for all 'statements of persons the party intends to call as witnesses.'" See Commonwealth v. Rodriguez-Nieves, 487 Mass. 171, 179 n.12 (2021), quoting Commonwealth v. Taylor, 469 Mass. 516, 521 (2014).
6 The defendant must also "show that the undisclosed evidence existed and was exculpatory . . . [and] the prosecution failed to produce it." See Bateman, 492 Mass. at 419. 15
serve as an alibi witness. The defendant first argues that he
was prejudiced because with the benefit of the undisclosed
recording, his trial counsel would have pursued Whalen as an
alibi witness. The defendant argues that Whalen's undisclosed,
recorded statements about when he first encountered the
defendant on the day of the murders, in contrast to his written
statement, indicate that Whalen could have testified that the
defendant was in Greenfield, not Deerfield, at the time of the
murders and thus provided an alibi.
This argument is unpersuasive. Whalen's statements in the
undisclosed recording are essentially identical to his written
statement, which was timely provided to the defense during
pretrial discovery. In his written statement, Whalen said that
he saw the defendant "in the afternoon during daylight," but he
did not know at what time. On the undisclosed recording, Whalen
stated that he first saw the defendant "sometime in the
afternoon" when "it was light out." The only difference the
defendant identifies between the undisclosed recording and
Whalen's written statement is that on the recording, when the
officers were inquiring about this encounter, Whalen also said,
"the time was" -- at which point an interviewing officer asked
another question before Whalen could complete his sentence. But
this difference does little to strengthen Whalen's possible
value as an alibi witness. Throughout the recording, Whalen 16
repeatedly claimed he did not remember numerous details about
the day of the murders -- including at what time he stopped
working for the day, the names of people with whom he spent
time, and what the defendant was wearing. Any value Whalen
might have had as an alibi witness was already evident from the
written statement the Commonwealth timely disclosed to the
defense. The undisclosed recording does not reveal anything
material that would have changed trial counsel's decision about
calling Whalen as a witness.
Further, the defendant failed to show prejudice because the
evidence against him at trial was overwhelming. See Bateman,
492 Mass. at 438 (disagreeing with defendant's contention that
evidence against him was "not overwhelming"); Imbert, 479 Mass.
at 583. Such evidence included, among other things, that the
defendant's DNA was the major profile in the genetic material on
the ligature with which Waryasz was strangled and was consistent
with DNA found under her fingernails; testimony from several
witnesses who saw a van resembling the defendant's distinctive
van at the gasoline station, including one who sold the
defendant the paint used on the van, and placed the van at the
station at the time of the murders; the defendant's detailed
confession to a fellow inmate; the defendant's own inculpatory
statements, including those he made to the police about the
murder weapon before the means of the victims' deaths was made 17
public; and credible evidence that the defendant had no money
before the murders but was seen with a lot of cash in the hours
following the murders. The defendant therefore has not shown
prejudice on this ground.
ii. Whether the defendant was prejudiced because he could
not use the recording to support his Bowden defense. The
defendant next argues that he was prejudiced by the
nondisclosure because the recording supports his Bowden defense
that the investigation was inadequate. Specifically, the
defendant contends that the officers' repeated questioning about
whether Whalen saw the defendant with a cash register, despite
Whalen's denials, and their failure to probe Whalen further
about when he first saw the defendant on the day of the murders,
which could have provided the defendant with an alibi, suggest
that the investigation was unduly focused on the defendant.
This argument is similarly unavailing. As explained supra,
throughout the undisclosed recording, Whalen asserted several
times that he did not recall specific details about the day of
the murders, and his timeline of the day's events changed.
Indeed, the officers asked Whalen "when" he first saw the
defendant on April 16 and whether he could "pinpoint a time" for
them, but when they did so, Whalen either did not respond or
merely stated that the meeting occurred "sometime in the
afternoon" when "it was light out." If the officers' failure to 18
probe further into the exact time when Whalen first saw the
defendant would have had any effect on the jury's perception of
thoroughness of investigation, such effect would have been
mitigated by these other statements -- which indicate that
Whalen was unable to provide a more specific time.
Additionally, using the recording to bolster the defendant's
Bowden defense would have permitted the Commonwealth to "offer
'testimony about why the investigators chose the particular
investigative path they did,' in order to rebut that defense."
Commonwealth v. Wardsworth, 482 Mass. 454, 478 (2019), quoting
Commonwealth v. Avila, 454 Mass. 744, 755 (2009). Thus, the
Commonwealth could have explained to the jury that the officers
repeatedly questioned Whalen about seeing the defendant with a
cash register because they were following up on the statement
from Simanski, an apparently disinterested witness, in which she
claimed that Whalen told her multiple times that he had seen the
defendant carrying a cash register. As the cash register was
missing from the gasoline station when Waryasz's body was
discovered, this statement would have been detrimental to the
defendant.
Moreover, as stated supra, any effect the nondisclosure
might have had on the defendant's Bowden defense would have been
more than outweighed by the compelling evidence inculpating him. 19
The defendant therefore cannot show prejudice on this ground,
either.
iii. Whether the defendant was prejudiced because he could
have used the recording to impeach trial witnesses and undermine
the credibility of the investigation. Finally, the defendant
argues that he was prejudiced because the undisclosed recording
reveals that the officers impermissibly threatened Whalen and
promised not to prosecute him for his drug crimes in order to
coerce him into providing inculpatory information about the
defendant.7 Even though Whalen did not testify at trial, the
defendant suggests that he could have used the recording to
impeach other trial witnesses and further undermine the
credibility of the investigation.
This argument, too, falls short. The judge found, and we
agree, that the officers' questioning style throughout the
undisclosed recording was reasonable and does not cast doubt on
the veracity of any witnesses' testimony or the investigation
generally. Whalen's account of the day of the murders changed
throughout the course of the interview, and at times it
contradicted what other witnesses, such as Simanski, had already
told the officers. The officers therefore had good reason to
7 For example, the officers forcefully and repeatedly asked Whalen about the cash register, questioned whether he was telling the truth, and suggested that he would be charged with a crime if they discovered he was lying to them. 20
continue to press Whalen and to convey to him the importance of
being truthful with them. In any case, to the extent anything
in the interview could be construed as a threat or inducement to
provide inculpatory information about the defendant, these
efforts ultimately appear to have been unsuccessful. The
officers pressed Whalen most on whether he had seen the
defendant with a cash register on the day of the murders, but
Whalen steadfastly denied that he had throughout the interview.
For these reasons, and because the evidence against the
defendant was overwhelming, we conclude that the defendant has
not shown that he was prejudiced by the Commonwealth's failure
to disclose the audio segment.8
c. "Newly" discovered evidence of anomalies in the
recording of the defendant's interview. The defendant next
argues that he is entitled to a new trial because his audio
analysis experts, who analyzed the recordings of the defendant's
second police interview and testified at the two-day evidentiary
hearing on April 18 and 19, 2024, opined that these recordings
8 The defendant also contends that Whalen's absence at trial was the result of police intimidation and thus a new trial is required. We are unpersuaded. As explained supra, the undisclosed recording does not reveal any impermissible police conduct. This claim otherwise rests purely on speculation, which is insufficient. See Commonwealth v. Laguer, 448 Mass. 585, 599 (2007) (finding defendant did not demonstrate substantial basis for claiming prejudice, where argument was based on "nothing more than speculation"). 21
were allegedly intentionally edited or manipulated. We recite
here some additional facts relevant to the recorded interview
and the experts' opinions.
i. The defendant's April 20, 2005, interview with the
police. As Gadreault affirmed in an affidavit, he recorded the
entirety of the defendant's second police interview on an
Olympus digital electronic recorder (Olympus). Gadreault
stopped the recording when the defendant took a bathroom break,
and he started it again when the defendant returned. This
caused there to be two recorded segments of the interview. The
defendant reviewed and signed a written summary confirming what
he told police at the end of the interview. Gadreault
subsequently transferred the recordings from the Olympus to a
computer and later downloaded the recordings to compact discs.
Gadreault attested that the recording accurately reflected the
interview, he did not know how to edit the recording, he did not
tamper with the recording, and he was unaware of anyone doing
so. The judge specifically credited his affidavit.
ii. Expert testimony and reports. Both the defendant's
and the Commonwealth's experts conducted forensic analysis on
the digital audio recordings from the Olympus used to record the
interview. The defendant utilized two experts, Lindsay Hawk and
Marisa Déry. Hawk identified numerous anomalies in the
recording, including truncated or repeated words, changes in 22
waveform, and abrupt changes of topic and volume. Hawk
concluded that these anomalies were "consistent with redaction"
and "possible active editing." Similarly, Déry opined that the
recording was "distorted and overloaded" and "poorly recorded";
the recording inexplicably did not have a visible ground hum;
and some purportedly duplicate files had different file names
and hash values, which indicated the files were not true
duplicates of each other. By contrast, the Commonwealth's
expert, Dante Fazio, concluded that any supposed anomalies were
"fairly standard" given the "noisy" and "reverberant" room in
which the interview took place, and all features of the file
were "consistent internally" and consistent to a sample
recording taken from the same recorder. Accordingly, Fazio
concluded that the recordings contained no traces of edits or
manipulation.
The defendant argues that his experts opined that the
recorded interview was consistent with editing and manipulation,
which therefore casts doubt on the authenticity of the
recordings and the integrity of the police investigation. To
prevail on his claim that he is entitled thereby to a new trial,
the defendant must show that "the evidence is in fact newly
discovered; the newly discovered evidence is credible and
material; and the newly discovered evidence casts real doubt on
the justice of the conviction[s]" (citation and quotations 23
omitted). Bateman, 492 Mass. at 437, quoting Commonwealth v.
Teixeira, 486 Mass. 617, 640 (2021). "Our review of a denial of
a motion for a new trial based on newly discovered evidence is
for abuse of discretion or other error of law." Commonwealth v.
Moore, 489 Mass. 735, 749 (2022). Where, as here, the judge
held an evidentiary hearing, the court "afford[s] deference to
the motion judge's findings that are 'drawn partly or wholly
from testimonial evidence' unless clearly erroneous."
Commonwealth v. Mercado, 495 Mass. 763, 766 (2025), quoting
Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).
iii. Whether the evidence is newly discovered. Evidence
is "newly discovered" where the evidence was "unknown to the
defendant or his counsel and not reasonably discoverable by them
at the time of trial (or at the time of the presentation of an
earlier motion for a new trial)." Grace, 397 Mass. at 306.
Here, the judge concluded that the anomalies in the audio
recordings were not newly discovered because "all of the tools,
such as software and machines [that the defendant's experts,
Hawk and Déry,] used to analyze the recordings" of the
defendant's interview "were available between 2008 and 2013,"
well before the defendant filed his first motion for a new
trial, on August 31, 2018.
We discern no abuse of discretion or other error. Even
assuming, as the judge did, that the defendant could not have 24
had the recordings analyzed before trial, this information about
anomalies in the recordings was reasonably discoverable well
before his first motion for a new trial in August 2018. Hawk
testified that "the idea of audio analysis is old" and that she
used the most modern versions of existing software. Although
advancements in the field since 2007 have made it easier to
detect anomalies, Hawk testified that detecting anomalies "is a
matter of the expertise of the person who's employing the tool."
Similarly, Déry testified that the tools she used were available
in 2008, and that the most important tool is critical and
careful listening.9
The defendant nevertheless argues that he raised this issue
in his first motion for a new trial because he amended his
motion by submitting an expert opinion but the judge refused to
consider it. This is inaccurate. The defendant was permitted
to amend his first motion for a new trial and was granted funds
for an audio analysis expert in October 2018. The defendant
filed his amended motion for a new trial on October 4, 2018,
adding three issues unrelated to the audio recordings. The
defendant continued to receive court-granted funds for the audio
analysis experts through 2019. The judge then conducted a two-
9 The defendant asserts that "[t]he specific software used here, such as SpectraLayers, did not exist until 2012," but Hawk testified that she did not use SpectraLayers. 25
day evidentiary hearing on May 30 and May 31, 2019, on the first
motion for a new trial. On August 21, 2019, three months after
the evidentiary hearing, the defendant attempted to amend or
supplement his motion for a new trial again, raising a claim of
edited audio recordings for the first time, among other issues.10
The Commonwealth filed a motion to strike the supplement as
waived under Mass. R. Crim. P. 30 (c) (2), as appearing in 435
Mass. 1501 (2001),11 arguing that the supplement raised a new
issue three months after the evidentiary hearing and nearly one
year after the motion for a new trial was filed, which the judge
granted.12 The judge did not abuse his discretion in granting
the Commonwealth's motion to strike the second supplement. The
defendant was afforded postconviction discovery and funds to
explore the issue over the course of one year. Moreover, the
defendant had amended his motion once in October 2018, and
10The supplement also stated that a more detailed supplementary report would be forthcoming the following month.
11Rule 30 (c) (2) of the Massachusetts Rules of Criminal Procedure, as appearing in 435 Mass. 1501 (2001), states: "All grounds for relief claimed by the defendant . . . shall be raised by the defendant in the original or amended motion. Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion."
12The judge granted the Commonwealth's motion in a footnote in his decision denying the defendant's first motion for a new trial for the reasons stated in the Commonwealth's motion. 26
further attempts to add issues were subject to the judge's
discretion. See Mass. R. Crim. P. 30 (c) (2). The judge acted
within his discretion in concluding that the supplement was
filed unreasonably late and added issues not previously raised.
See Commonwealth v. Crawford, 430 Mass. 683, 684 n.2 (2000).
Thus, the defendant has not shown that the information
concerning anomalies in the audio recordings was not reasonably
discoverable at the time he filed his first motion for a new
trial on August 31, 2018.
iv. Whether the evidence casts real doubt on the justice
of the convictions. Even if the experts' opinions concerning
anomalies in the audio recordings were newly discovered,
however, the defendant has failed to show that that information
casts real doubt on the justice of the convictions. The inquiry
is "not whether the verdict[s] would have been different, but
rather whether the new evidence would probably have been a real
factor in the jury's deliberations." Grace, 397 Mass. at 306.
Here, the judge concluded that the audio recordings had not been
manipulated because "[n]o expert testified conclusively that
portions of the taped interview had been destroyed or were
missing, or that the recording did not reflect accurately and
completely what had been said," and the defendant himself "does
not assert that the audio recording is missing any specific or
significant, much less exculpatory, statement that he may have 27
made." The defendant maintains that, to the contrary, the
experts opined that the recordings were "consistent with editing
and manipulation" and that "[b]oth experts testified the
recording had evidence it had been edited." As a result, the
defendant argues, this information raises doubts about the
police investigation and the credibility of the Commonwealth's
witnesses and thus this information would have been a real
factor in the jury's deliberations.
The defendant overstates the experts' conclusions. Both
Hawk and Déry repeatedly explained that they could not conclude
the recordings were edited; the presence of anomalies is not
necessarily proof of editing; anomalies can indicate innocuous
background noise, such as typing or a momentary increase in
volume; and anomalies were present across all the witness
interviews, not just the defendant's interview. The experts
attributed some of the anomalies to the fact that the recording
was a duplicate, and therefore necessarily not original, because
the interview was recorded on a handheld digital device and
uploaded to a computer. Both experts expressly concluded that
although editing was a possible explanation for the anomalies,
they could not rule out other causes. Moreover, as the judge
explained, the defendant did not describe what exculpatory or
otherwise significant statements were missing from the audio 28
recordings.13 All of this, coupled with the overwhelming
evidence of the defendant's guilt, discussed supra, shows that
this evidence would not have been a real factor in the jury's
deliberations.14 Accordingly, the experts' opinions do not cast
real doubt on the justice of the convictions.15
d. Ineffective assistance of counsel. Finally, we address
the defendant's argument that trial counsel was ineffective for
failing to interview or call two witnesses to testify who made a
U-turn at the gasoline station at around the time of the murders
and did not recall seeing the defendant's van. On the day of
the murders, Allison and Kenneth Hamilton were driving to a
restaurant for a dinner reservation. They missed the turn for
the restaurant, so they pulled into the gasoline station to make
a U-turn. Both Allison and Kenneth provided statements to the
13In a 2020 affidavit filed in the Superior Court, the defendant alleged that several specific words and phrases from the interview were omitted in the audio recording. However, these omissions, which include, for example, details about where his van broke down on the day of the murders, are not material.
14Because the experts did not conclude that the recordings were edited, we reject the defendant's argument that the audio recordings were inadmissible because they could not be authenticated.
15The defendant separately argues that trial counsel was ineffective by failing to retain an audio expert to review the recordings before trial or the first motion for a new trial. As explained supra, any failure to explore this issue was not prejudicial because the experts' testimony would not have produced anything material, and therefore counsel was not ineffective for failing to explore this issue earlier. 29
police. Allison said that the clock in their car indicated that
it was 6:30 P.M. when they turned around, and she was sure of
the time because she was worried they would be late for their
reservation. She also noted that there was a shiny, red pickup
truck in the gasoline station's parking lot. She did not recall
seeing a van in the parking lot, but she thought "[t]here may
have been another vehicle parked parallel to the [gasoline
station's] building . . . but it is hard to say for sure."
Kenneth told police he did not "remember any cars being in the
lot, but [he] didn't look either."
We review "claims of ineffective assistance of counsel in
cases of murder in the first degree for a substantial likelihood
of a miscarriage of justice." Commonwealth v. Moffat, 486 Mass.
193, 205 (2020). "We [also] 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). In particular, the "[f]ailure to call a witness will
not be considered ineffective assistance of counsel absent a
showing of prejudice." Commonwealth v. Vaughn, 471 Mass. 398,
413 (2015).
In this case, the Hamiltons made a quick U-turn at the
gasoline station at around the time the victims were killed.
Kenneth did not look or pay attention to whether there were any 30
cars in the parking lot. Allison noticed a red pickup truck in
the parking lot and did not recall seeing a van, but she told
police that there may have been another vehicle parked parallel
to the gasoline station's building. Allison's testimony would
have been helpful to the defendant to the extent that she did
not recall seeing the defendant's van in the parking lot at 6:30
P.M., which potentially casts doubt on another witness's
testimony that he saw Waryasz, the defendant, and his van at
approximately 6:30 P.M.16,17 However, the failure to interview
Allison or call her as a witness did not create a substantial
likelihood of a miscarriage of justice. Five other witnesses
testified that they saw a van matching the defendant's in the
gasoline station's parking lot in the minutes before and at the
16Indeed, trial counsel told the court that Allison Hamilton would potentially testify. On the next day, however, trial counsel incorrectly told the defendant that all of the witnesses who were scheduled to testify had refused. In fact, in 2022, Allison Hamilton told a licensed private investigator hired by postconviction counsel that she had received paperwork directing her to go to the court house during the trial, but when she did so, nobody spoke with her and she was not asked to testify.
17In an affidavit in support of the defendant's second motion for a new trial, the defendant's former postconviction counsel explained that he believed Allison's statement was exculpatory because it impeached the testimony of Williams, who said he saw Waryasz, the defendant, and his van in the parking lot at approximately 6:30 P.M. Counsel nevertheless chose not to investigate her account because he was focused "on the issues raised in the new trial motion, which [he] felt were very strong." 31
time of the murders. Allison's testimony would not have
directly contradicted the other witnesses' testimony because,
consistent with her statement to police, she would have
testified only that she did not recall seeing a van. See
Commonwealth v. Gonzalez, 473 Mass. 415, 424 (2015).
Particularly in light of the overwhelming evidence of the
defendant's guilt, detailed supra, Allison's testimony would
likely not have influenced the jury's verdicts.18,19
3. Conclusion. For the foregoing reasons, we affirm the
order denying the defendant's second motion for a new trial.
So ordered.
18Because trial counsel was not ineffective, prior appellate counsel was not ineffective for failing to argue that trial counsel was ineffective. See Breese v. Commonwealth, 415 Mass. 249, 252 (1993) ("If the defendant received effective assistance of counsel at trial, there can be no argument that either first or second appellate counsel was ineffective for failing to argue that trial counsel was ineffective").
19For substantially the same reasons as those discussed supra, we also reject the defendant's arguments that (1) the judge was required to hold evidentiary hearings regarding the undisclosed segment of the Whalen interview and the Hamiltons' statements, see Mass. R. Crim. P. 30 (c) (3) ("The judge may rule on the . . . issues presented by [a motion for a new trial] . . . without further hearing if no substantial issue is raised by the motion or affidavits); and (2) the defendant was prejudiced by the cumulative effect of any errors.