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-1423
COMMONWEALTH
vs.
CHAD J. LEBLANC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a District Court jury of larceny of property
valued at more than $1,200, G. L. c. 266, § 30 (1), the
defendant appeals from his conviction and from the denial of his
motion for a new trial. On appeal, he argues that his trial
lawyer was ineffective for not objecting when (1) witnesses
testified describing video footage that was not introduced at
trial, (2) the prosecutor called a witness added to the witness
list on the morning of trial, and (3) a police detective
identified the defendant as the person arrested, although a
different officer arrested him. We affirm.
Background. On the afternoon of January 15, 2022, at a
Walmart in Lynn, a display case in the jewelry department was broken into, jewelry was taken from it, and a hammer and crowbar
from the hardware department were left under it. Surveillance
video of the store interior depicted a white man wearing a mask,
a gray hooded sweatshirt, dark pants, and white sneakers
breaking into the jewelry display case with the hammer and
crowbar. A video of the parking lot was not admitted in
evidence, but loss prevention officer Enoc Pierresin testified
that it depicted the man getting into a gray Chevrolet Malibu; a
police detective could not recall if that video depicted the man
walking to the Malibu. From that video, a still image of the
Malibu and its license plate was admitted in evidence. The
detective determined that the Malibu was registered to the
defendant.
The next evening, January 16, 2022, surveillance video
inside the same Walmart recorded a white man breaking into
another display case in the jewelry department. The man was
wearing a red mask with a Door Dash logo, a gray jacket, and
blue jeans. He opened a jewelry case, took items valued at
$3,181, and left the store. Loss prevention officer Luis
Rivera-Toucet testified that surveillance video of the parking
lot depicted the man getting into the Malibu. Once again, the
parking lot video was not admitted in evidence, but only a still
image of the Malibu and its license plate.
2 Police obtained a warrant for the defendant's arrest. On
January 28, 2022, about one-half mile from the Walmart, police
stopped the Malibu and arrested the defendant.
In closing, defense counsel conceded that the defendant's
Malibu was in the Walmart parking lot on January 15 and 16,
2022, but argued that the Commonwealth had not proven that the
defendant was in it, because someone could have borrowed his
car, the still images taken from the parking lot videos were not
clear, and no witness identified him at trial as the person on
the videos. The prosecutor argued that the jury should compare
images of the man inside the store to the defendant's Registry
of Motor Vehicles photograph and his appearance in the
courtroom. The jury convicted the defendant of the January 16
larceny and acquitted him of the January 15 larceny, and the
defendant filed a timely notice of appeal.
Represented by new counsel, the defendant filed a motion
for a new trial, arguing that trial counsel was ineffective for
not seeking to exclude the testimony of Pierresin and Rivera-
Toucet that the parking lot videos depicted the man who had been
in the jewelry department getting into the Malibu. The
defendant pointed out that police body camera footage provided
to the defense in pretrial discovery showed that when a Walmart
employee had offered to give police the parking lot videos, a
3 detective replied that police needed only still images from each
date showing the Malibu's license plate.
The same judge who had presided over the trial held an
evidentiary hearing at which trial counsel testified. However,
trial counsel did not remember much about the trial nearly two
years before, including whether he had reviewed the body camera
videos, and the defendant's new counsel did not attempt to
refresh his memory with trial transcripts or exhibits. The
judge denied the motion for a new trial, ruling that the
defendant had not shown ineffective assistance under the test
set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant appeals.
Discussion. 1. Motion for a new trial. "A motion for new
trial may be granted only 'if it appears that justice may not
have been done.'" Commonwealth v. Gil, 104 Mass. App. Ct. 124,
135 (2024), quoting Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2021). "[We] review the denial of a motion for
a new trial for a significant error of law or other abuse of
discretion" (quotation and citation omitted). Commonwealth v.
Erler, 106 Mass. App. Ct. 149, 151 (2025). "Reversal for abuse
of discretion is particularly rare where, [as here], the judge
acting on the motion was also the trial judge" (citation
omitted). Gil, supra. "To prevail on a claim of ineffective
4 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" (quotations
and citations omitted). Commonwealth v. Gardner, 102 Mass. App.
Ct. 299, 308 (2023). See Saferian, 366 Mass. at 96.
2. Best evidence rule. The defendant contends that his
lawyer was ineffective for failing to object to the testimony of
Pierresin and Rivera-Toucet that the parking lot videos depicted
the man who had been in the jewelry department walking to the
Malibu. He argues that admission of that testimony without the
parking lot videos violated the best evidence rule, and absent
that testimony the Commonwealth could not have proven that the
defendant was the person who stole the jewelry on January 16.
As for the first Saferian prong, it is not at all clear
that an ordinary fallible lawyer would have objected to the
testimony of Pierresin and Rivera-Toucet on best evidence
grounds. "The best evidence rule provides that, where the
contents of a document are to be proved, the party must either
produce the original or show a sufficient excuse for its
nonproduction." Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001).
See Mass. G. Evid. § 1002 (2025). A sufficient excuse for
nonproduction may arise when evidence "is lost or destroyed, and
5 not by the proponent acting in bad faith" (citation omitted).
Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 585 (2017). As
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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-1423
COMMONWEALTH
vs.
CHAD J. LEBLANC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a District Court jury of larceny of property
valued at more than $1,200, G. L. c. 266, § 30 (1), the
defendant appeals from his conviction and from the denial of his
motion for a new trial. On appeal, he argues that his trial
lawyer was ineffective for not objecting when (1) witnesses
testified describing video footage that was not introduced at
trial, (2) the prosecutor called a witness added to the witness
list on the morning of trial, and (3) a police detective
identified the defendant as the person arrested, although a
different officer arrested him. We affirm.
Background. On the afternoon of January 15, 2022, at a
Walmart in Lynn, a display case in the jewelry department was broken into, jewelry was taken from it, and a hammer and crowbar
from the hardware department were left under it. Surveillance
video of the store interior depicted a white man wearing a mask,
a gray hooded sweatshirt, dark pants, and white sneakers
breaking into the jewelry display case with the hammer and
crowbar. A video of the parking lot was not admitted in
evidence, but loss prevention officer Enoc Pierresin testified
that it depicted the man getting into a gray Chevrolet Malibu; a
police detective could not recall if that video depicted the man
walking to the Malibu. From that video, a still image of the
Malibu and its license plate was admitted in evidence. The
detective determined that the Malibu was registered to the
defendant.
The next evening, January 16, 2022, surveillance video
inside the same Walmart recorded a white man breaking into
another display case in the jewelry department. The man was
wearing a red mask with a Door Dash logo, a gray jacket, and
blue jeans. He opened a jewelry case, took items valued at
$3,181, and left the store. Loss prevention officer Luis
Rivera-Toucet testified that surveillance video of the parking
lot depicted the man getting into the Malibu. Once again, the
parking lot video was not admitted in evidence, but only a still
image of the Malibu and its license plate.
2 Police obtained a warrant for the defendant's arrest. On
January 28, 2022, about one-half mile from the Walmart, police
stopped the Malibu and arrested the defendant.
In closing, defense counsel conceded that the defendant's
Malibu was in the Walmart parking lot on January 15 and 16,
2022, but argued that the Commonwealth had not proven that the
defendant was in it, because someone could have borrowed his
car, the still images taken from the parking lot videos were not
clear, and no witness identified him at trial as the person on
the videos. The prosecutor argued that the jury should compare
images of the man inside the store to the defendant's Registry
of Motor Vehicles photograph and his appearance in the
courtroom. The jury convicted the defendant of the January 16
larceny and acquitted him of the January 15 larceny, and the
defendant filed a timely notice of appeal.
Represented by new counsel, the defendant filed a motion
for a new trial, arguing that trial counsel was ineffective for
not seeking to exclude the testimony of Pierresin and Rivera-
Toucet that the parking lot videos depicted the man who had been
in the jewelry department getting into the Malibu. The
defendant pointed out that police body camera footage provided
to the defense in pretrial discovery showed that when a Walmart
employee had offered to give police the parking lot videos, a
3 detective replied that police needed only still images from each
date showing the Malibu's license plate.
The same judge who had presided over the trial held an
evidentiary hearing at which trial counsel testified. However,
trial counsel did not remember much about the trial nearly two
years before, including whether he had reviewed the body camera
videos, and the defendant's new counsel did not attempt to
refresh his memory with trial transcripts or exhibits. The
judge denied the motion for a new trial, ruling that the
defendant had not shown ineffective assistance under the test
set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant appeals.
Discussion. 1. Motion for a new trial. "A motion for new
trial may be granted only 'if it appears that justice may not
have been done.'" Commonwealth v. Gil, 104 Mass. App. Ct. 124,
135 (2024), quoting Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2021). "[We] review the denial of a motion for
a new trial for a significant error of law or other abuse of
discretion" (quotation and citation omitted). Commonwealth v.
Erler, 106 Mass. App. Ct. 149, 151 (2025). "Reversal for abuse
of discretion is particularly rare where, [as here], the judge
acting on the motion was also the trial judge" (citation
omitted). Gil, supra. "To prevail on a claim of ineffective
4 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" (quotations
and citations omitted). Commonwealth v. Gardner, 102 Mass. App.
Ct. 299, 308 (2023). See Saferian, 366 Mass. at 96.
2. Best evidence rule. The defendant contends that his
lawyer was ineffective for failing to object to the testimony of
Pierresin and Rivera-Toucet that the parking lot videos depicted
the man who had been in the jewelry department walking to the
Malibu. He argues that admission of that testimony without the
parking lot videos violated the best evidence rule, and absent
that testimony the Commonwealth could not have proven that the
defendant was the person who stole the jewelry on January 16.
As for the first Saferian prong, it is not at all clear
that an ordinary fallible lawyer would have objected to the
testimony of Pierresin and Rivera-Toucet on best evidence
grounds. "The best evidence rule provides that, where the
contents of a document are to be proved, the party must either
produce the original or show a sufficient excuse for its
nonproduction." Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001).
See Mass. G. Evid. § 1002 (2025). A sufficient excuse for
nonproduction may arise when evidence "is lost or destroyed, and
5 not by the proponent acting in bad faith" (citation omitted).
Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 585 (2017). As
applied to electronic records such as videos, "[t]he best
evidence rule does not forbid the use of 'copies' of electronic
records . . . because there is no 'original' in the traditional
sense." Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 356 n.10
(2013). See Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294
(2006) (best evidence rule inapplicable to images stored on
computer hard drive and then transferred to compact disk).
"However, oral testimony designed to prove the contents of an
electronic record is barred for the same reasons as those
underlying the best evidence rule." Salyer, supra.
Because the defendant did not question trial counsel at the
evidentiary hearing about why he did not object at trial on best
evidence grounds, the record before us does not establish that
trial counsel's decision fell below the standard of an ordinary
fallible lawyer. The record contains no information about
whether the parking lot videos still existed at the time of
trial, which took place about six months after the thefts. Nor
is there information about whether the police acted in bad faith
by not obtaining the parking lot videos. For the purposes of
our analysis, we assume that the testimony of Pierresin and
Rivera-Toucet describing the contents of the parking lot videos
6 should have been "barred for the same reasons as those
underlying the best evidence rule," Salyer, 84 Mass. App. Ct. at
356 n.10.
As to the second Saferian prong, whether the defendant has
shown prejudice, we conclude that he has not. After trial
counsel refrained from objecting to Pierresin's testimony that
the January 15 parking lot video depicted the man who had been
in the jewelry department getting into the Malibu, counsel
elicited from a police detective that he could not recall if
that video depicted the man walking across the parking lot to
the Malibu, and "I don't believe that [it] did." In closing,
trial counsel capitalized on that discrepancy, arguing that the
Commonwealth's case amounted to "just I saw a guy get into a car
that happened to be going around the jewelry area." Trial
counsel also pointed out that Pierresin claimed that the January
15 parking lot video was "crystal clear," but the Commonwealth
only provided the jury with "photographs that looked just like
this," displaying the blurry still images taken from the videos.
The jury acquitted the defendant of the January 15 theft. Thus,
trial counsel's strategy succeeded as to the January 15 charge;
that it was unsuccessful as to the January 16 one "does not make
it manifestly unreasonable." Gil, 104 Mass. App. Ct. at 136.
7 As to the best evidence issue, we discern no abuse of
discretion in the trial judge's denial of the motion for a new
trial.
3. Late-disclosed witness. The defendant argues that
trial counsel was ineffective for not precluding the testimony
of Rivera-Toucet, because the Commonwealth's witness list
originally stated that a different Walmart employee, Lisa
Martin, would testify, and his testimony went beyond that of a
keeper of records.
On the morning of trial, the prosecutor informed the judge
and defense counsel that Martin would not be available until
that afternoon and Rivera-Toucet would testify instead; his name
was handwritten on the witness list. Defense counsel objected.
The prosecutor represented that Rivera-Toucet would "essentially
. . . just be testifying as a keeper of the records" to
authenticate the January 16 surveillance video, and he had
reviewed it and was present when Martin downloaded it. The
judge ruled to permit Rivera-Toucet to testify based on his
personal knowledge, and if trial counsel had any "objection in
regards to the hearsay . . . the Court would rule." See
Commonwealth v. Carter, 475 Mass. 512, 519 (2016) ("A judge has
significant discretion in deciding whether late-discovered or
late-disclosed witnesses should be excluded from testifying as a
8 remedy for the late disclosure" [quotation and citation
omitted]).1
As mentioned, Rivera-Toucet testified, without objection,
that the January 16 parking lot video depicted the man who had
been in the jewelry department getting into the Malibu. In his
motion for a new trial, the defendant argued that trial counsel
was ineffective for not objecting to that testimony on the
ground that it went beyond that of a keeper of the records. We
are not persuaded that trial counsel's failure to object was
conduct below that of an ordinary fallible lawyer. At the
evidentiary hearing on the motion for a new trial, the defendant
did not ask trial counsel whether he considered objecting to
Rivera-Toucet's testimony on the ground that it went beyond that
of a keeper of the records, or show counsel the pages of the
trial transcript pertaining to the issue.
As discussed above, even assuming that Rivera-Toucet's
testimony describing the January 16 parking lot video was
objectionable, the defendant has not shown prejudice. Trial
counsel made the absence of the parking lot videos a key part of
the defense theory. In those circumstances, we discern no abuse
1 We note that the prosecutor had represented that Martin "may end up being available at 2 P.M." Rivera-Toucet's testimony began at about 2:45 P.M., but there was no further discussion of Martin's availability.
9 of discretion in the trial judge's denial of the motion for a
new trial on this ground.
4. Police testimony identifying defendant as person
arrested. Finally, the defendant argues that his trial lawyer
was ineffective for failing to object to the testimony of
Detective Ralph Sirois about the defendant's arrest, when in
fact a different officer had stopped the Malibu and arrested the
defendant. As a result, the defendant argued, Sirois's
identifying the defendant as the person arrested was hearsay in
violation of the right to confrontation under the Sixth
Amendment to the United States Constitution.
On trial counsel's objection, the judge ruled to preclude
Detective Sirois from testifying about sneakers seized pursuant
to a search warrant, because of the Commonwealth's late
disclosure of that evidence. During that discussion, trial
counsel told the judge that Detective Sirois "may testify that
he arrested [the defendant], which is fine. I don't have a
problem with that, I don't find that prejudicial anyways because
he was arrested. That's a fact."
Detective Sirois testified that "[a] motor vehicle stop was
[e]ffected on that car by Officer Edos of the traffic unit, and
subsequently the operator was identified as [the defendant]."
Detective Sirois then identified the defendant in court as the
10 person he saw in custody. The defendant argues that the
testimony was inadmissible hearsay because Detective Sirois did
not actually arrest the defendant, but only saw him after he was
taken into custody.
In Commonwealth v. Crayton, 470 Mass. 228, 242 (2014), the
court held that an in-court identification might be permitted
"where the witness is an arresting officer who was also an
eyewitness to the commission of the crime, and the
identification merely confirms that the defendant is the person
who was arrested for the charged crime." However, "[a]n officer
who did not participate in the arrest of a defendant cannot make
such an assertion." Commonwealth v. Ortiz, 487 Mass. 602, 609
(2021). We need not resolve the question whether Detective
Sirois's seeing the defendant after he was taken into custody
amounted to participating in his arrest, thus permitting an in-
court identification, because we conclude that the defendant was
not prejudiced.
Instead of objecting to Detective Sirois's testimony about
the defendant's arrest, trial counsel elicited on cross-
examination that no stolen jewelry was found in the Malibu or on
the defendant's person. And the fact that, twelve days after
January 16, the defendant was driving the Malibu that was
registered to him was not particularly prejudicial. In those
11 circumstances, we see no abuse of discretion in the trial
judge's determination that trial counsel's handling of Detective
Sirois's testimony did not amount to ineffective assistance.
Judgment affirmed.
Order denying motion for a new trial affirmed.
By the Court (Blake, C.J., Neyman & Grant, JJ.2),
Clerk
Entered: January 16, 2026.
2 The panelists are listed in order of seniority.