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
25-P-201
COMMONWEALTH
vs.
DONALD WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Donald Williams, appeals from an order
denying his motion for a new trial. The defendant asserts that
the motion judge erred in concluding that (1) the conditions on
court room entry did not amount to a closure of the court room,
and thus did not constitute a structural error; (2) the trial
judge properly determined that the defendant had not established
a prima facie case of discrimination in the prosecution's use of
peremptory challenges; and (3) "newly available evidence"
submitted by the defendant did not warrant a new trial. For the
reasons herein, we affirm.
1. Background. On December 18, 2008, the defendant was
indicted for assault and battery by means of a dangerous weapon causing serious bodily injury, in violation of G. L. c. 265,
§ 15A (c) (i); armed assault with intent to murder, in violation
of G. L. c. 265, § 18 (b); unlawful possession of ammunition, in
violation of G. L. c. 269, § 10 (h) (1); carrying a firearm
without a license (second offense), in violation of G. L.
c. 269, § 10 (a) & (d); and unlawful possession of a loaded
firearm, in violation of G. L. c. 269, § 10 (n). Trial
commenced on April 1, 2011.
a. Conditions of court room entry. On the first day of
trial, the prosecutor requested that a court officer be placed
outside the court room to check entrants' identification, and to
sign in entrants as they entered the court room, citing concerns
about witness intimidation. Defense counsel objected on grounds
that such conditions would violate the defendant's right to a
public trial, and furthermore, that the conditions might lead to
the defendant's family members being excluded from the court
room if they could not produce identification. After
considering defense counsel's objection, the trial judge granted
the Commonwealth's request, noting,
"Based on the history of this case, based on what I find to be egregious witness intimidation, I'm going to grant the Commonwealth's request. The defendant has made affirmative steps to reach out to people on the other side to intimidate witnesses, and I’m not going to have that in my courtroom.
"To the extent that there's a family member or someone who doesn't have a picture ID, I'd ask that defense counsel
2 personally identify that person to the court officer . . . "And then we'll allow them in. . . . If the court is open, and if you're saying this issue regarding the possession of [a] picture ID is a problem, I'll address it and people will be allowed in with the representation by defense counsel that this person is who this person is."
b. Jury selection. During jury empanelment, the
prosecutor used a peremptory challenge on juror 196. Defense
counsel objected on the grounds that juror 196 was "the second
Black female the Commonwealth ha[d] challenged." The following
exchange ensued:
THE JUDGE: "I don't find any pattern that would raise a concern. There have been other African-Americans or people of color selected to be on the jury."
DEFENSE COUNSEL: "I don't think that the test is whether or not there are other black jurors that were seated . . . it's whether the Commonwealth's challenges in and of themselves are race-based."
THE JUDGE: "I'm aware of the legal standard . . . and I know that one person can be a pattern, but I don't detect any pattern whatsoever. The last juror that was chosen was a black female. I don't find there to be any pattern."
DEFENSE COUNSEL: "Just note my objection."
c. Trial, conviction, and postconviction motions. At
trial, the Commonwealth offered evidence to show that the
defendant shot T.S., a fellow member of the gang to which the
defendant belonged. The Commonwealth presented T.S.'s testimony
recounting the events leading up to the shooting, the shooting
itself (where T.S. identified the defendant as the shooter), and
the events after the shooting where T.S. once again identified
3 the defendant as the shooter. The defendant, in turn, offered
evidence that undermined T.S.'s testimony regarding the events
that occurred before the shooting.
Ultimately, the jury convicted the defendant on all counts. 1
The defendant appealed from his convictions, whereupon a panel
of this court affirmed the judgments in Commonwealth v.
Williams, 84 Mass. App. Ct. 1135 (2014). Further appellate
review was subsequently denied, 468 Mass. 1102 (2014).
In February of 2023, the defendant filed a motion for a new
trial wherein he argued, for the first time, that structural
error arose from the prosecution's peremptory challenges, and
from the judge's conditions on court room entry. After a
nonevidentiary hearing, a Superior Court judge denied the
defendant's motion for a new trial. The defendant appeals.
2. Discussion. a. Standard of review. Pursuant to Mass.
R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), a judge
may grant a new trial "if it appears that justice may not have
been done." We review the denial of a motion for a new trial to
determine whether there has been a significant error of law or
other abuse of discretion. Commonwealth v. Benson, 453 Mass.
90, 99 (2009). "Where, as here, the motion judge was not the
1 The unlawful possession of ammunition charge as well as the subsequent offense portion of the forth charge were dismissed following trial at the request of the Commonwealth.
4 trial judge and the motion judge did not make credibility
determinations arising from an evidentiary hearing, we consider
ourselves in as good a position as the motion judge to review
the trial record" (citation omitted). Commonwealth v. Vaughn,
471 Mass. 398, 404 (2015). "Motions for a new trial are granted
only in extraordinary circumstances." Commonwealth v. Comita,
441 Mass. 86, 93 (2004).
b. Peremptory challenge. "The use of peremptory
challenges to exclude potential jurors solely because of their
race is prohibited by the equal protection clause of the
Fourteenth Amendment to the United States Constitution."
Commonwealth v. Grier, 490 Mass. 455, 458 (2022), citing Batson
v. Kentucky, 476 U.S. 79, 89 (1986). "Article 12 of the
Massachusetts Declaration of Rights similarly proscribes the
'use of peremptory challenges to exclude prospective jurors
solely by virtue of their membership in, or affiliation with,
particular, defined groupings in the community.'" Grier, supra,
quoting Commonwealth v. Soares, 377 Mass. 461, 486 (1979).
When a party challenges the constitutionality of a
peremptory strike, they "must rebut the presumption that the
strike is constitutionally proper by making out a prima facie
case that the purpose for the strike is discriminatory." Grier,
490 Mass. at 458. "If the judge finds that a prima facie case
of discrimination has been established, the burden shifts to the
5 party seeking to exercise the peremptory strike to provide a
group-neutral explanation for the challenged strike." Id.
Here, defense counsel objected to the prosecutor's use of a
peremptory challenge to strike juror 196, a Black woman.
Defense counsel argued that the Commonwealth had also struck
juror 138, a Black woman, making juror 196 the second Black
woman for which the Commonwealth had used a peremptory
challenge. In response to the objection, the trial judge stated
that he found no "pattern" of discrimination and did not require
the prosecutor to state a non-discriminatory reason for the
challenge. We review the trial judge's determination for abuse
of discretion, and when doing so, "we do not ask 'whether the
judge was permitted to find that the presumption [of
constitutional propriety] had been rebutted,' but rather
'whether [the judge] was required to have so found'" (emphasis
omitted). Grier, 490 Mass. at 459, quoting Commonwealth v.
Issa, 466 Mass. 1, 10 (2013).
In assessing whether a party has established a prima facie
case for discrimination, the judge should consider "the totality
of relevant facts," guided by the following factors:
"(1) the number and percentage of group members who have been excluded; (2) the possibility of an objective group- neutral explanation for the strike or strikes; (3) any similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck; (4) differences among the various members of the allegedly targeted group who were struck; (5) whether those excluded
6 are members of the same protected group as the defendant or the victim; and (6) the composition of the jurors already seated" (citation omitted).
Grier, supra.
In light of the factors above, and on this record, we
discern no error or other abuse of discretion in the trial
judge's determination. First, given the incomplete information
available about the demographics of the jury pool, we cannot
determine whether a disproportionate number or percentage of
Black, female jurors was excluded from the jury. See Grier, 490
Mass. at 460 (record was insufficient to support whether strikes
disproportionately targeted Black jurors).
Second, viewing the prosecution's strikes in the context of
the entire empanelment, an objective, group-neutral explanation
emerges: concern regarding the potential jurors' impartiality
given that they had close relatives who were recently
prosecuted. Juror 138 disclosed that, a year prior, her son had
been prosecuted and convicted in the same court house.
Similarly, juror 196 revealed that her brother had recently been
charged and convicted by the Suffolk County District Attorney's
office, the same office prosecuting the defendant, and that he
had been incarcerated for "half his life."
Third, the record reveals no similarities between jurors
138 and 196, and the other two potential jurors struck by the
prosecutor. Fourth, we discern no differences between jurors
7 138 and 196 relevant to our analysis. Fifth, jurors 138 and
196, who are Black women, are of the same protected racial group
as the defendant and T.S., who are Black men. However, where
"the defendant shares the group membership of the jurors whose
exclusion is challenged as discriminatory, and the victim was
also a member of the protected group . . . this factor 'does
little to tip the balance in either direction.'" Grier, 490
Mass. at 462, quoting Commonwealth v. Jones, 477 Mass. 307, 322
n.27 (2017).
Lastly, regarding the composition of the members of the
jury already seated, the trial judge noted that there were other
people of color on the jury, and that the last juror seated was
a Black female. Although this factor cannot be the sole basis
for the judge's determination, see Commonwealth v. Sanchez, 485
Mass. 491, 512 & n.16 (2020), it is nonetheless relevant to the
"totality of the relevant facts" considered by the judge,
Grier, 490 Mass. at 459.
Thus, based on the above factors, we conclude that the
trial judge did not abuse his discretion in determining that
defense counsel had failed to raise a prima facie case for
discrimination. 2
2 The defendant also asserts ineffective assistance of appellate counsel for failing to raise the issue of the Commonwealth's peremptory challenges. Given our conclusion here, it follows that the defendant's appellate counsel did not
8 c. Conditions on entry to court room. Next, the defendant
asserts that the motion judge erred in concluding that the
conditions imposed by the trial judge on court room entry did
not amount to constitutional court room closure. In
Commonwealth v. Maldonado, 466 Mass. 742, 751 (2014), the
Supreme Judicial Court held, in factual circumstances similar to
those at issue here, that a trial judge's order requiring
spectators to show identification and sign in before entering
court was not a constitutional closure. In so holding, the
court provided a framework for analyzing the propriety of such
conditions, stating,
"Although we conclude that the conditions imposed by the judge of signing in and showing identification fell short of a constitutional closure, that does not mean that they may be imposed without justification or that they are exempt from judicial review. . . . [I]dentification may be required of spectators only where a judge sets forth on the record the reasons that justify imposing this condition on entry based on the special circumstances of the case and only where the conditions are no broader than needed to accomplish their purpose."
Id. at 751-752.
Here, the trial judge explicitly set forth his
justification for imposing the conditions on the record, stating
he had found "egregious witness intimidation," and that the
"fail[] to raise a significant and obvious issue . . . which . . . may have resulted in a reversal of the conviction, or an order for a new trial" (citation omitted). Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 232 (1993).
9 defendant had taken "affirmative steps . . . to intimidate
witnesses." Given the trial judge's concerns and the gang-
related nature of the crime, we conclude that he acted within
his discretion to require entrants to show identification and
sign in. See Maldonado, 466 Mass. at 752 ("A judge may
recognize that, when a member of a gang is alleged to have
committed a shooting, there is a risk that others associated
with the gang may attempt to intimidate witnesses to cause them
to exculpate, or at least avoid incriminating, the accused").
Moreover, where there had already been attempts to intimidate
witnesses, the trial judge acted within his discretion in
imposing the conditions despite defense counsel's statement that
"anyone that the Commonwealth was worried about . . . [was] in
custody." See id. at 753 ("A judge need not wait for a witness
to be intimidated, the court room to be disrupted, or a specific
threat before taking appropriate steps to address the risk of
such misconduct").
The defendant attempts to distinguish this case from
Maldonado, arguing that the alleged presence of a Boston police
officer, in addition to court officers, at the door of the court
room shows that the conditions had an "investigative purpose" --
namely, that the police must have been comparing names of
entrants against a list and set of photographs to "screen" their
connections to the defendant. In support of this argument, the
10 defendant submitted affidavits from three individuals recounting
their experiences as they approached the court room. Two of the
individuals averred that upon seeing an officer at the door,
they decided not to enter so as to avoid interaction with law
enforcement. The other affiant averred that she entered the
court room but was "aware" that a member of the defendant's
family was told by an officer that they were not permitted to
enter due to an outstanding warrant. 3 Upon reviewing the
affidavits, we agree with the motion judge that they merely
"establish that officers were checking identification and
requiring spectators to sign in before entering the court room."
Contrary to the defendant's characterization, the affidavits do
not show that the police were "using a list of names and
photographs from a law enforcement database to screen court room
entrants." Rather, the affidavits, at best, explain why the
affiants, upon seeing an officer at the door checking IDs and
requiring entrants to sign in, decided not to enter. Cf.
Commonwealth v. Andrade, 488 Mass. 522, 542 (2021) ("That some
spectators who were unable to produce identification were barred
from entry, as the defendant contends, does not change the
analysis").
3 The judge properly concluded that the affiant's statement about the alleged exclusion of a family member was inadmissible hearsay. The defendant does not argue otherwise.
11 We conclude that the motion judge acted within her
discretion in determining, without an evidentiary hearing, that
the conditions neither amounted to a closure nor were imposed in
error. 4 See Commonwealth v. Goodreau, 442 Mass. 341, 348-349
(2004) ("If the theory of the motion [for a new trial], as
presented by the papers, is not . . . persuasive, holding an
evidentiary hearing . . . will accomplish nothing"). 5
d. Newly available proposed testimony. Lastly, the
defendant asserts that the motion judge erred in not granting a
new trial based on newly available evidence, which purportedly
undercuts the "core aspects" of T.S.'s testimony.
"In a motion for a new trial based on new evidence, the
defendant must show that the evidence is either 'newly
discovered' or 'newly available' and that it 'casts real doubt'
on the justice of the defendant's conviction" (footnote
4 Given our conclusion that the affidavits did not give rise to an apparently meritorious claim, we also conclude that the motion judge did not err in denying the defendant's request for postconviction discovery. See Commonwealth v. Daniels, 445 Mass. 392, 407 (2005) ("In requesting [postconviction] discovery, the defendant must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial").
5 Because we conclude that there was no error or other abuse of discretion in the trial judge's ruling on the Commonwealth's peremptory challenges or in his imposition of conditions on entry (which did not amount to a closure), we need not opine as to whether the issues were waived as a result of defendant's appellate counsel's failure to raise the same issues on direct appeal.
12 omitted). Commonwealth v. Sullivan, 469 Mass. 340, 350 (2014).
"The standard is not whether the verdict would have been
different, but whether the evidence probably would have been a
'real factor' in the jury's deliberations." Id. at 350-351.
"We will reverse a judge's ruling on appeal only if the decision
is 'manifestly unjust'" (citation omitted). Id. at 351.
Here, the defendant submitted affidavits from M.L. and M.F.
-- witnesses who asserted their Fifth Amendment privilege at
trial -- that contradict T.S.'s account of the events leading up
to the shooting. 6 After considering the affidavits, the motion
judge concluded that the proffered testimony did not "cast[]
real doubt on the justice of the conviction" for two reasons:
(1) the proffered testimony would have contradicted T.S.'s
testimony regarding events that occurred solely before the
shooting, therefore leaving T.S.'s identification of the
defendant intact, and (2) this testimony would be cumulative of
evidence already presented at trial.
Based on the record, we discern no error in the motion
judge's conclusion and rationale. First, because the
6 M.F. -- who pleaded guilty to witness intimidation before trial -- averred that there was no "hang out" at his house prior to the shooting, and that in any event, he was in North Carolina at the time of the shooting. M.L.'s affidavit stated, contrary to T.S.'s testimony, that he was not present at a gathering at M.F.'s house prior to the shooting, and that he did not drive T.S. to the location of the shooting.
13 prosecution's case relied primarily on T.S.'s identification of
the defendant as his shooter -- both moments after the shooting
and upon being shown a photo array -- the proffered testimony,
while serving an impeachment purpose, only undermines T.S.'s
testimony as to collateral events which occurred before the
shooting. Contrast Commonwealth v. Drayton, 479 Mass. 479, 483,
490-491 (2018) (new evidence not only impeached witness but also
contradicted testimony that he saw murder and "undermine[d] the
Commonwealth's entire case against the defendant").
Furthermore, the proffered testimony treads the same ground as
evidence presented by the defendant at trial. At trial, the
defendant introduced records that showed M.L. had checked into a
hotel in South Boston on the night of the shooting, and that
M.F. had obtained a Greyhound bus ticket to North Carolina
several days before the shooting. Thus, the proffered
testimony, providing the witnesses' first-hand accounts of these
time frames, "carries less weight than new evidence different in
kind." Commonwealth v. Cintron, 435 Mass. 509, 518 (2001). See
Commonwealth v. McGee, 467 Mass. 141, 150 (2014) ("Newly
discovered evidence that tends to merely impeach the testimony
of a witness does not ordinarily warrant a new trial" [citation
omitted]).
14 We therefore conclude that the motion judge properly denied
the defendant's motion for a new trial based on newly available
evidence.
Order denying motion for a new trial affirmed.
By the Court (Shin, Walsh & Allen, JJ. 7),
Clerk
Entered: March 18, 2026.
7 The panelists are listed in order of seniority.