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-646
COMMONWEALTH
vs.
DERRICK BLAKNEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Derrick Blakney, appeals from a conviction
of assault and battery on a person sixty years of age or older,
causing serious bodily injury.1 The defendant contends that his
attorney provided ineffective assistance of counsel by failing
to request a jury instruction on the defense of accident and
that the judge erred by failing to order the redaction of the
word "pushed" from the victim's medical records. We affirm.
Background. On May 20, 2020, the defendant went to visit a
friend who was renting a second-floor apartment in a building
owned by the victim's wife. The defendant knocked on the
1The jury found the defendant not guilty of assault and battery by means of a dangerous weapon, to wit, a shod foot, causing serious bodily injury. victim's door, and the victim's wife opened the door. The
defendant asked if his friend was there. The victim's wife
replied that no one by that name was there and closed the door.
The victim saw the defendant on the porch of the house and
became concerned because he had never seen him before. The
victim went to the top of the stairs and asked the defendant "if
[he] could help him, [and] was he looking for somebody
particular," but the defendant did not respond. The defendant
then pushed the victim's chest with his hand. As the victim
fell off the stairs and onto the sidewalk, he grabbed the
defendant, who landed on top of him. An ambulance responded and
treated the victim at the scene. The victim was admitted to the
hospital for a leg fracture and underwent surgery. He also
suffered other broken bones in his face, including a broken
nose.
Prior to the start of trial, defense counsel told the judge
that he would assert either an accident defense or self-defense
"depending on the facts as they come in." During the charge
conference, defense counsel requested a self-defense instruction
after the judge confirmed that the instruction on assault and
battery "includes accident." The judge stated, "I don't know
that . . . those facts fit the self-defense instruction," and
that "it may be arguably an accident." Defense counsel
responded that "part of the self-defense instruction is that the
2 amount of force that you use is only to match the . . . amount
of force that is necessary," and that the case is "sort of a
'tweener with accident and self-defense." Defense counsel
argued that the evidence supported his request for the self-
defense instruction, and the judge agreed to provide it to the
jury.
Discussion. 1. Ineffective assistance of counsel. The
defendant contends that his trial counsel provided him
ineffective assistance when he failed to request a jury
instruction on the defense of accident when there was evidence
at trial that the victim's fall was accidental. The defendant
cites to his testimony that the victim grabbed the defendant's
shoulder, and when the defendant brushed the victim's arm away,
the victim fell down the stairs. We find the argument
unavailing.
The defendant raises the claim of ineffective assistance
for the first time on appeal. To sustain a claim of ineffective
assistance of counsel, the defendant must show that "behavior of
counsel [fell] measurably below that which might be expected
from an ordinary fallible lawyer," and that such behavior
"likely deprived the defendant of an otherwise available,
substantial ground of [defense]." Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). "[T]he preferred method for raising a
claim of ineffective assistance of counsel is through a motion
3 for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810
(2006). "[A]n ineffective assistance of counsel challenge made
on the trial record alone is the weakest form of such a
challenge because it is bereft of any explanation by trial
counsel for his actions and suggestive of strategy contrived by
a defendant viewing the case with hindsight." Commonwealth v.
Peloquin, 437 Mass. 204, 210 n.5 (2002). Therefore, a "claim of
ineffective assistance may be resolved on direct appeal of the
defendant's conviction when the factual basis of the claim
appears indisputably on the trial record." Zinser, supra at
811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339,
344 (1994). Because the defendant's claim involves a tactical
judgment made by trial counsel, he must show that counsel's
decision was "manifestly unreasonable" when made. Commonwealth
v. Miller, 101 Mass. App. Ct. 344, 348 (2022), quoting
Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
The defendant contends that only the accident instruction,
as opposed to the assault and battery instruction, "anticipates
sudden and unexpected actions such as the one between the
[defendant and victim] at the top of the stairs." However, the
assault and battery instruction given by the judge contained
language that addresses the concept of accident. The judge
instructed the jury that "[a] person intends to touch another
person if he does it on purpose, as opposed to accidentally."
4 See Commonwealth v. Torres, 420 Mass. 479, 484 (1995)
("[a]lthough the judge may not have used the particular words
requested by the defendant, he adequately explained the concept"
in giving jury instruction). The jury instruction given by the
judge included language addressing the concept of accident --
the exact jury instruction the defendant, on appeal, claims
trial counsel failed to pursue. While it is possible that
counsel did not request a separate accident instruction because
the assault and battery instruction explained the concept of
accident, we cannot make such a determination because the
factual basis of the claim does not appear "indisputably on the
trial record" (citation omitted). Zinser, 446 Mass. at 811.
Without additional evidence, such as an affidavit from trial
counsel, there is no basis to conclude that his strategic choice
was "manifestly unreasonable" (citation omitted). Miller, 101
Mass. App. Ct. at 348.
2. Admissibility of statement in the medical records. The
defendant contends that the judge abused her discretion when she
declined to order the redaction of the word "pushed" from the
victim's medical records, which were admitted as evidence at
trial. We are not persuaded.
"Certified medical records 'may be admitted by the court in
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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-646
COMMONWEALTH
vs.
DERRICK BLAKNEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Derrick Blakney, appeals from a conviction
of assault and battery on a person sixty years of age or older,
causing serious bodily injury.1 The defendant contends that his
attorney provided ineffective assistance of counsel by failing
to request a jury instruction on the defense of accident and
that the judge erred by failing to order the redaction of the
word "pushed" from the victim's medical records. We affirm.
Background. On May 20, 2020, the defendant went to visit a
friend who was renting a second-floor apartment in a building
owned by the victim's wife. The defendant knocked on the
1The jury found the defendant not guilty of assault and battery by means of a dangerous weapon, to wit, a shod foot, causing serious bodily injury. victim's door, and the victim's wife opened the door. The
defendant asked if his friend was there. The victim's wife
replied that no one by that name was there and closed the door.
The victim saw the defendant on the porch of the house and
became concerned because he had never seen him before. The
victim went to the top of the stairs and asked the defendant "if
[he] could help him, [and] was he looking for somebody
particular," but the defendant did not respond. The defendant
then pushed the victim's chest with his hand. As the victim
fell off the stairs and onto the sidewalk, he grabbed the
defendant, who landed on top of him. An ambulance responded and
treated the victim at the scene. The victim was admitted to the
hospital for a leg fracture and underwent surgery. He also
suffered other broken bones in his face, including a broken
nose.
Prior to the start of trial, defense counsel told the judge
that he would assert either an accident defense or self-defense
"depending on the facts as they come in." During the charge
conference, defense counsel requested a self-defense instruction
after the judge confirmed that the instruction on assault and
battery "includes accident." The judge stated, "I don't know
that . . . those facts fit the self-defense instruction," and
that "it may be arguably an accident." Defense counsel
responded that "part of the self-defense instruction is that the
2 amount of force that you use is only to match the . . . amount
of force that is necessary," and that the case is "sort of a
'tweener with accident and self-defense." Defense counsel
argued that the evidence supported his request for the self-
defense instruction, and the judge agreed to provide it to the
jury.
Discussion. 1. Ineffective assistance of counsel. The
defendant contends that his trial counsel provided him
ineffective assistance when he failed to request a jury
instruction on the defense of accident when there was evidence
at trial that the victim's fall was accidental. The defendant
cites to his testimony that the victim grabbed the defendant's
shoulder, and when the defendant brushed the victim's arm away,
the victim fell down the stairs. We find the argument
unavailing.
The defendant raises the claim of ineffective assistance
for the first time on appeal. To sustain a claim of ineffective
assistance of counsel, the defendant must show that "behavior of
counsel [fell] measurably below that which might be expected
from an ordinary fallible lawyer," and that such behavior
"likely deprived the defendant of an otherwise available,
substantial ground of [defense]." Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). "[T]he preferred method for raising a
claim of ineffective assistance of counsel is through a motion
3 for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810
(2006). "[A]n ineffective assistance of counsel challenge made
on the trial record alone is the weakest form of such a
challenge because it is bereft of any explanation by trial
counsel for his actions and suggestive of strategy contrived by
a defendant viewing the case with hindsight." Commonwealth v.
Peloquin, 437 Mass. 204, 210 n.5 (2002). Therefore, a "claim of
ineffective assistance may be resolved on direct appeal of the
defendant's conviction when the factual basis of the claim
appears indisputably on the trial record." Zinser, supra at
811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339,
344 (1994). Because the defendant's claim involves a tactical
judgment made by trial counsel, he must show that counsel's
decision was "manifestly unreasonable" when made. Commonwealth
v. Miller, 101 Mass. App. Ct. 344, 348 (2022), quoting
Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
The defendant contends that only the accident instruction,
as opposed to the assault and battery instruction, "anticipates
sudden and unexpected actions such as the one between the
[defendant and victim] at the top of the stairs." However, the
assault and battery instruction given by the judge contained
language that addresses the concept of accident. The judge
instructed the jury that "[a] person intends to touch another
person if he does it on purpose, as opposed to accidentally."
4 See Commonwealth v. Torres, 420 Mass. 479, 484 (1995)
("[a]lthough the judge may not have used the particular words
requested by the defendant, he adequately explained the concept"
in giving jury instruction). The jury instruction given by the
judge included language addressing the concept of accident --
the exact jury instruction the defendant, on appeal, claims
trial counsel failed to pursue. While it is possible that
counsel did not request a separate accident instruction because
the assault and battery instruction explained the concept of
accident, we cannot make such a determination because the
factual basis of the claim does not appear "indisputably on the
trial record" (citation omitted). Zinser, 446 Mass. at 811.
Without additional evidence, such as an affidavit from trial
counsel, there is no basis to conclude that his strategic choice
was "manifestly unreasonable" (citation omitted). Miller, 101
Mass. App. Ct. at 348.
2. Admissibility of statement in the medical records. The
defendant contends that the judge abused her discretion when she
declined to order the redaction of the word "pushed" from the
victim's medical records, which were admitted as evidence at
trial. We are not persuaded.
"Certified medical records 'may be admitted by the court in
its discretion, as evidence . . . so far as such records relate
to the treatment and medical history of such cases . . . but
5 nothing therein contained shall be admissible as evidence which
has reference to the question of liability.'" Commonwealth v.
McGann, 484 Mass. 312, 320 (2020), quoting G. L. c. 233, § 79.
Admission of a medical record that relates directly and
primarily to the patient's treatment and medical history is
permitted "even though incidentally the facts recorded may have
some bearing on the question of liability." McGann, supra,
quoting Commonwealth v. Torres, 479 Mass. 641, 653 (2018). The
statute is liberally construed to allow the admission of medical
records. See McGann, supra.
The defendant filed a motion in limine to preclude the
Commonwealth from introducing inadmissible hearsay. Trial
counsel requested redaction of the statement contained in the
victim's medical records stating "1 kick primarily to the face
and head also involving the patient being pushed off of a low
deck landing on his right leg." The judge denied the motion,
ruling that the statement was admissible under the medical
treatment exception to the hearsay rule. She found that the
statement provided a factual basis as it related to the
potential cause of the injuries for which the victim was
receiving treatment.
We discern no error in the judge's ruling that the word
"pushed" should not have been redacted. The victim suffered
several fractures, including a broken leg and broken bones in
6 his face. The victim's description of being pushed off a deck
"constitute[d] 'fact-specific references to the reported cause
of [the victim's] injuries' made for purposes of obtaining
medical treatment." Commonwealth v. Dargon, 457 Mass. 387, 396
(2010), quoting Commonwealth v. DiMonte, 427 Mass. 233, 242
(1998). See McGann, 484 Mass. at 320 ("repeatedly beat him
about the head/face and bit him several times in arms" and "came
after him with steak knife" admissible statements as cause of
injuries and relevant to medical treatment).2
Judgment affirmed.
By the Court (Rubin, Neyman & Tan, JJ.3),
Clerk
Entered: July 31, 2025.
2 Even assuming, arguendo, that the word "pushed" should have been redacted, the defendant nonetheless fails to demonstrate any prejudice. The jury found the defendant not guilty of the assault and battery by means of a dangerous weapon, suggesting that they were not persuaded by the statement in the medical record, which also included the victim stating he had been kicked in the face.
3 The panelists are listed in order of seniority.