NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1301
COMMONWEALTH
vs.
CHRISTOPHER HENRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Christopher Henry, appeals from a
conviction, after a jury waived trial in Superior Court, of
assault and battery by means of a dangerous weapon, G. L.
c. 265, § 15A (b), and from orders of two Superior Court judges
denying his motions for new trial. Concluding that, where the
defendant's newly discovered evidence consists of an eyewitness
who observed that the defendant was unarmed, the defendant is
entitled to an evidentiary hearing on his motion for a new
trial, we vacate the denial of the defendant's second motion for
a new trial.
1. Newly discovered evidence. a. Standard of review.
"Rule 30 (b) of the Massachusetts Rules of Criminal Procedure, as appearing in 435 Mass. 1501 (2001), authorizes a judge to
'grant a new trial at any time if it appears that justice may
not have been done.'" Commonwealth v. Watkins, 486 Mass. 801,
803-804 (2021). "To prevail on a motion for a new trial based
on new evidence, a defendant must establish 'both that the
evidence is newly discovered [or newly available] and that it
casts real doubt on the justice of the conviction.'"
Commonwealth v. Bonnett, 482 Mass. 838, 844 (2019), quoting
Commonwealth v. Grace, 397 Mass. 303, 305 (1986). "New evidence
will cast real doubt on the justice of the conviction if there
is a substantial risk that the jury would have reached a
different conclusion had the evidence been admitted at trial."
Commonwealth v. Sullivan, 469 Mass. 340, 350 (2014).
The trial judge denied the defendant's first motion for a
new trial, but a different judge (motion judge) denied his
second motion for a new trial which raised, inter alia, his
claim of newly discovered evidence. "Where . . . the motion
judge was not the trial judge, did not conduct an evidentiary
hearing, and instead relied on the trial transcripts,
affidavits, and other documentary evidence, we review de novo
the denial of a motion for a new trial." Commonwealth v. Pope,
489 Mass. 790, 793-794 (2022). Accord Commonwealth v. Duguay,
492 Mass. 520, 531 (2023).
2 A motion for a new trial may be denied without an
evidentiary hearing "if no substantial issue is raised by the
motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as
appearing in 435 Mass. 1501 (2001). "In determining whether a
substantial issue exists, 'a judge considers the seriousness of
the issues raised and the adequacy of the defendant's showing on
those issues.'" Commonwealth v. Upton, 484 Mass. 155, 162
(2020), quoting Commonwealth v. Barry, 481 Mass. 388, 401
(2019). "Although a defendant's motion and affidavits 'need not
prove the issue raised,' to be adequate 'they must at least
contain sufficient credible information to cast doubt on the
issue.'" Commonwealth v. Lys, 481 Mass. 1, 5 (2018), quoting
Commonwealth v. Denis, 442 Mass. 617, 629 (2004).
b. Eyewitness account. The evidence at trial was that the
defendant sliced the face of another inmate with a razor blade.
The eyewitness inmate, who saw the altercation, averred that he
"did not see [the defendant] with anything in his hands at any
point." The motion judge found that, although the eyewitness
inmate's affidavit "appears to be newly discovered . . . . it
would not have been a real factor in the case," as the inmate's
account of events was largely contradicted by the officer's
trial testimony. The fact that the inmate's account contradicts
the officer's trial testimony, however, is the very reason that
it might have been valuable to the defendant. See Commonwealth
3 v. Smith, 90 Mass. App. Ct. 261, 269 (2016) ("Although it may
very well be that [the inmate's] allegations are not credible,[]
where, as here, the credibility of the affiant cannot be gleaned
solely from the contents of the affidavit, it is only through
the crucible of direct and cross-examination that such a
judgment can be made").
More to the point, the motion judge stated that the
eyewitness's proposed testimony "would not likely be material to
the decision-making process because it is unclear how far away
from the altercation he was." It is, indeed, difficult to tell
from this record how far away the eyewitness was and whether he
had a proper vantage point to make credible observations. Those
difficulties, however, are precisely why an evidentiary hearing
is warranted. The defendant has made an adequate showing that
an eyewitness to the crime observed that he was unarmed.
Whether this eyewitness's testimony would have wilted under
cross-examination or provided enough heft to be a real factor in
the trier of fact's decision-making is something that can be
determined in an evidentiary hearing. See Commonwealth v.
Drayton, 473 Mass. 23, 36 (2015), S.C., 479 Mass. 479 (2018)
(evidentiary hearing required where "affidavit [if admissible]
directly contradicts" sole percipient witness's testimony). We
accordingly vacate the denial of the defendant's second motion
4 for a new trial and remand to the Superior Court for an
evidentiary hearing.
c. Other claims of newly discovered evidence. Without
intending to limit the motion judge's consideration on remand of
the second motion for a new trial, we add some observations
about the other claims of newly discovered evidence. We discern
no error in the motion judge's finding that the unit logs were
not newly discovered. Trial counsel's statement that he "did
not seek the unit logs" fails to explain why the logs could not
have been found with reasonable diligence. This is particularly
so where trial counsel requested other documents from the same
correctional facility prior to trial. See Commonwealth v.
Elangwe, 85 Mass. App. Ct. 189, 194-195 (2014).
In support of his motion for new trial, the defendant
proffered a search policy dated June 16, 2021, well after the
2015 assault. It accordingly has no relevance to the charges at
issue. The defendant's speculation about what a contemporary
search policy would have stated is just that. In any event,
even if the defendant was searched upon reentering the unit, he
could have armed himself in the ten minutes between reentry and
the assault. Moreover, even if such a search policy did exist
in 2015, it would not be considered newly discovered evidence as
the defendant fails to explain why trial counsel would not have
been able to discover the contemporaneous policy with reasonable
5 diligence.1 See Commonwealth v. Teixeira, 486 Mass. 617, 640
(2021).
2. Ineffective assistance of counsel. a. Standard of
review. "Where a motion for a new trial is based on ineffective
assistance of counsel, the defendant must show that (1) the
'behavior of counsel [fell] measurably below that which might be
expected from an ordinary fallible lawyer' and (2) such failing
'likely deprived the defendant of an otherwise available,
substantial ground of defence.'" Commonwealth v. Tavares, 491
Mass. 362, 365 (2023), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). "A strategic decision amounts to
ineffective assistance 'only if it was manifestly unreasonable
when made.'" Teixeira, 486 Mass. at 637, quoting Commonwealth
v. Montez, 450 Mass. 736, 754 (2008).
b. Medical expert. The defendant has not shown that trial
counsel's conduct regarding a medical expert fell below that of
an ordinary fallible lawyer. Trial counsel averred that he
tasked his investigator with informally consulting a doctor
about the possible causes of the victim's wounds. This doctor
1 The defendant's corresponding claims that trial counsel's failure to secure the unit logs or search policy prior to trial amounts to ineffective assistance of counsel fail as the defendant has not demonstrated that he was deprived of a "substantial ground of defense." Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
6 stated, based on the investigator's description of the case,
that the victim's ear injury could have been caused by the sole
of a boot. After reviewing this information in the light of all
evidence available to him, notably the photographs of the
wounds, trial counsel decided not to obtain a formal opinion,
believing it "entirely implausible that the injuries at issue
could have been caused by the sole of a boot or a closed fist."
Trial counsel evaluated the information available to him and
made a reasoned decision. This was not manifestly unreasonable.
See Commonwealth v. Kolenovic, 471 Mass. 664, 674-675 (2015)
("The manifestly unreasonable test . . . is essentially a search
for rationality in counsel's strategic decisions, taking into
account all the circumstances known or that should have been
known to counsel . . . and not whether counsel could have made
alternative choices").
Moreover, the defendant has not demonstrated a viable claim
of prejudice. The doctor whose affidavit was filed in support
of the defendant's motion for a new trial explicitly stated that
it was "not possible to determine the origin of the injuries to
[the victim]," and that he "could not determine without
speculating whether the wounds depicted in the photographs here
were caused by a razor or a shod foot, or had some other
origin." In short, the posttrial expert provided essentially
the same equivocal view as the pretrial expert. Moreover, even
7 if an opinion was offered, it would not have affected the
trial's outcome as the judge credited the officer's testimony
that he witnessed the defendant holding a razor blade.
Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 326 (2023) ("We
give particular deference to the decision of a motion judge who
was also the trial judge").2
c. Constitutional right to a speedy trial. "To determine
whether either prong of the Saferian test is implicated here, we
consider the merits of the defendant's claim that the delay in
bringing him to trial violated his constitutional right to a
speedy trial." Commonwealth v. Butler, 464 Mass. 706, 709
(2013). "Because the motion judge did not preside over the
trial or conduct an evidentiary hearing, . . . we review the
denial of the motion for a new trial de novo." Commonwealth v.
Mazza, 484 Mass. 539, 547 (2020).
"Both the Sixth Amendment [to the United States
Constitution], incorporated through the Fourteenth Amendment [to
the United States Constitution], and art. 11 [of the
Massachusetts Declaration of Rights] guarantee criminal
defendants the right to a speedy trial. We interpret art. 11
through the lens of Sixth Amendment analysis." Commonwealth v.
2 The motion judge who presided over the defendant's first motion for new trial, which considered only the defendant's claim of ineffective assistance of counsel based on the failure to obtain a medical opinion, was also the trial judge.
8 McNair, 98 Mass. App. Ct. 750, 754 (2020), quoting Commonwealth
v. Dirico, 480 Mass. 491, 505 (2018). "[T]o trigger a speedy
trial analysis, an accused must allege that the interval between
accusation and trial has crossed the threshold dividing ordinary
from 'presumptively prejudicial' delay." Commonwealth v.
Wallace, 472 Mass. 56, 60 (2015), quoting Doggett v. United
States, 505 U.S. 647, 651-652 (1992). See also Barker v. Wingo,
407 U.S. 514, 530-533 (1972) (establishing four-factor balancing
test). "Once a defendant has established presumptive prejudice,
courts apply the four-factor Barker test to evaluate whether the
defendant's constitutional right to a speedy trial has, in fact,
been violated." Butler, 464 Mass. at 710. "Under the Barker
test, a reviewing court weighs the length of the delay, the
reason for the delay, the defendant's assertion of his right to
a speedy trial, and prejudice to the defendant." Dirico, supra
at 506, citing Barker, supra at 530.
Here, the nearly four-year long delay between the issuance
of the complaint in December 2015 and the defendant's trial in
2019 establishes both the threshold presumptive prejudice and
weighs heavily against the Commonwealth under the first Barker
factor. Butler, 464 Mass. at 715, quoting Doggett, 505 U.S. at
651 ("Length of delay 'is actually a double enquiry'").
Both the Commonwealth and the defendant contributed to the
pretrial delay. The Commonwealth appropriately concedes that it
9 was negligent in failing to file a detainer under the Interstate
Agreement on Detainers before the defendant was to be released
from Federal custody in 2018. Cf. Butler, 446 Mass. at 715,
quoting Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964-965
(1986) ("The Commonwealth, in the performance of its public
trust . . . [has] some 'duty to coordinate the efforts of its
various criminal divisions'"). Although the Commonwealth's
negligence is not excused, it weighs only lightly against the
Commonwealth as there is no evidence of purposeful delay on its
part. See Wallace, 472 Mass. at 61 ("Weighing most heavily
against the government are deliberate attempts at delay").
Conversely, "[o]f equal weight but opposite import to a
defendant are 'delays requested or otherwise orchestrated by the
defendant, such as evading capture by authorities.'" Wallace,
472 Mass. at 61, quoting Commonwealth v. Carr, 464 Mass. 855,
861 (2012). Although we recognize that the defendant asserted
his speedy trial right on multiple occasions prior to his
release from Federal custody, we likewise note that the
defendant did not subsequently assert this right upon his
release from Federal custody prior to trial. See Butler, 464
Mass. at 716 ("we do require more than the defendant's soft
assertion of his right to a speedy trial"). Indeed, after his
release from Federal custody in March 2018, the defendant
defaulted in August 2018. After appearing in court the
10 following month, the defendant then agreed to a continuance for
the subsequent pretrial hearing scheduled in November 2018. On
the day of his trial in December 2018, the defendant requested
new representation. The defendant's default and other delaying
actions between August and December 2018 weigh heavily against
the defendant, suggesting that he was not eager for a speedy
trial.
Finally, although the nearly four-year long delay
established a presumption of prejudice, it did not result in
prejudice particularized to the defendant. See Wallace, 472
Mass. at 60, quoting Doggett, 505 U.S. at 655-656 ("The
presumption of prejudice derived from a delay cannot be the sole
basis of a speedy trial claim but rather is 'part of the mix of
relevant facts'"). "Prejudice to the defendant 'should be
assessed in the light of the interests of defendants which the
speedy trial right was designed to protect,' which include the
interests '(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be
impaired.'" Dirico, 480 Mass. at 507, quoting Butler, 464 Mass.
at 717. Here, the defendant did not suffer oppressive pretrial
incarceration as he was held in Federal custody until 2018 and
was subsequently released on bail. Moreover, the defendant's
general claim that he suffered anxiety and concern is belied by
11 the defendant's delaying tactics between August and December
2018 and his failure to assert his right thereafter.
Furthermore, the defendant's claim that the delay "caused
key witnesses' memories to fade, and potentially exculpatory
evidence to become stale, . . . and compromised the reliability
of a trial in ways neither party can prove or identify" is
unpersuasive as it is unsupported by the record. Indeed, the
defendant points only to a Commonwealth's witness's memory as
affected by the pretrial delay. See also Butler, 464 Mass. at
717-718 ("the passage of time is a double-edge sword"). The
defendant's argument that the delay prevented his immediate
communication with percipient inmate witnesses is simply
contrary to the evidence. The defendant was removed from the
Plymouth County House of Corrections within three months of the
crime and within two months of his being charged, delays that do
not raise any constitutional speedy trial concerns. See Dirico,
480 Mass. at 506 (speedy trial right comes into play as delay
"approaches one year").3 Accordingly, the defendant has failed
to show he suffered particularized harm from the pretrial delay.
3 For the same reason, the defendant's claim of prejudicial preindictment delay fails. The defendant's claim that "the delay was the result of an intentional and / or reckless failure of the Commonwealth" is unsupported by any evidence. See Commonwealth v. Dame, 473 Mass. 524, 530, cert. denied, 580 U.S. 857 (2016), quoting Commonwealth v. George, 430 Mass. 276, 281 (1999) ("A defendant seeking dismissal of an indictment due to
12 Considering the Barker factors as a whole, we find that the
defendant's constitutional right to a speedy trial was not
violated. Accordingly, the defendant was not deprived of a
substantial ground of defense. See Commonwealth v. Diaz, 448
Mass. 286, 289 (2007) ("An ineffective assistance claim based on
the failure to bring a motion requires the defendant to show
that the motion would likely have been granted"); Commonwealth
v. Mathews, 450 Mass. 858, 873 (2008) ("Ultimately, the
defendant must demonstrate that trial counsel would have been
successful had he filed a motion to dismiss").
3. Opening statement. Under Mass. R. Crim. P. 24 (a) (1),
378 Mass. 895 (1979), a "defendant may present an opening
statement of his defense after the opening statement of the
Commonwealth or after the close of the Commonwealth's evidence."
A defendant, however, is not required to make an opening
statement, as "waiver of an opening statement has been held to
be 'trivial', a 'tactical decision', and a 'matter of
professional judgment', as well as 'within the realm of trial
strategy.'" Commonwealth v. Scott, 430 Mass. 351, 357 (1999),
quoting Commonwealth v. Cohen, 412 Mass. 375, 391 (1992).
preindictment delay 'must demonstrate that he suffered substantial, actual prejudice to his defense, and that the delay was intentionally or recklessly caused by the government'"). For this reason, the corresponding ineffective assistance of counsel claim fails.
13 Because the defendant did not object, we review for a
substantial risk of a miscarriage of justice. See Commonwealth
v. McDermott, 493 Mass. 403, 416 (2024).
The prosecutor waived his opening statement and asked to
"[j]ust call a witness at this point." The prosecutor then
offered an exhibit, and defense counsel said, "No objection as
redacted." The prosecutor then asked to call a witness, and
again defense counsel had no objection. There is no way to
understand this chain of events as anything other than defense
counsel's waiver of an opening statement as well. Accordingly,
the defendant's reliance on Commonwealth v. Dupree, 16 Mass.
App. Ct. 600 (1983), is misplaced. There, "[d]efense counsel
immediately stated his intention to make an opening," and the
judge "stated he would not permit the defendant to open until
after the Commonwealth had rested." Id. at 601. Accord United
States v. Hershenow, 680 F.2d 847, 857 (1st Cir. 1982) (judge
denied defendants' opening statements before government's case
over objections of both counsel).
4. Rule 17 motion. The defendant argues that the trial
judge improperly denied his pretrial motion to subpoena
documents. To obtain a Mass. R. Crim. P. 17 subpoena, "the
moving party must establish good cause for the production of
third-party documents, which is 'satisfied by a showing
"(1) that the documents are evidentiary and relevant; (2) that
14 they are not otherwise procurable reasonably in advance of trial
by exercise of due diligence; (3) that the party cannot properly
prepare for trial without such production and inspection in
advance of trial and that the failure to obtain such inspection
may tend unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as a
general 'fishing expedition.'"'" Commonwealth v. Hunt, 86 Mass.
App. Ct. 494, 498 (2014), quoting Commonwealth v. Lampron, 441
Mass. 265, 269 (2004).4 We review for an abuse of discretion.
See Commonwealth v. Michalski, 95 Mass. App. Ct. 520, 522
(2019).
Here, the defendant was not seeking documents that were
evidentiary and relevant. See Commonwealth v. Olivier, 89 Mass.
App. Ct. 836, 845 (2016) ("The standard of relevance applied to
rule 17[a][2] motions is the same standard applied to evidence
at trial"). Instead, he was seeking to "identify[] potential
witnesses" that he could then interview. "[R]ule 17(a)(2) is
not a discovery tool, and . . . the limited purpose of rule
4 We recognize that there is a colorable claim that the prison personnel were part of the prosecution team under the facts of this case. See Commonwealth v. Beal, 429 Mass. 530, 531 (1999) (prosecution team involves "those individuals acting, in some capacity, as agents of the government in the investigation and prosecution of the case"). Because the defendant did not move for these records under Mass. R. Crim. 14 (a) (2), as appearing in 442 Mass. 1518 (2004), and makes no argument on appeal regarding that rule, we do not reach it.
15 17 (a) (2) is to authorize a court 'to expedite the trial by
providing a time and place before trial for the inspection of
the subpoenaed materials'" (citation omitted). Commonwealth v.
Dwyer, 448 Mass. 122, 142 (2006). Accord Commonwealth v. Jones,
478 Mass. 65, 68-69 (2017). See also Olivier, supra, quoting
Dwyer, supra ("This standard -- rather than the broad discovery
standing -- applies because 'rule 17[a][2] is not a discovery
tool'"). Accordingly, the trial judge acted within his
discretion in denying the motion.5
5. Conclusion. The judgment is affirmed. The order dated
November 17, 2020, denying the defendant's first motion for a
new trial is affirmed. The order dated August 11, 2023, denying
the defendant's second motion for a new trial is vacated, and
5 In light of our rejection of all of the defendant's claims of errors except for the first, his claim of cumulative error is without merit. See Commonwealth v. Robinson, 493 Mass. 775, 795 (2024).
16 the case is remanded for further proceedings consistent with
this decision.
So ordered.
By the Court (Ditkoff, Grant & Toone, JJ.6),
Clerk
Entered: September 12, 2025.
6 The panelists are listed in order of seniority.