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SJC-13232
COMMONWEALTH vs. VAN LEON DORSEY, JR.
Hampden. January 9, 2026. – July 30, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Dewar, JJ.
Homicide. Controlled Substances. Resisting Arrest. Self- Defense. Practice, Criminal, Assistance of counsel, New trial, Capital case. Evidence, Self-defense, Expert opinion, Prior violent conduct, Prior misconduct. Mental Health.
Indictments found and returned in the Superior Court Department on June 29, 2015.
The cases were tried before John S. Ferrara, J., and a motion for a new trial, filed on July 11, 2024, was heard by David M. Hodge, J.
Edward B. Gaffney for the defendant. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.
KAFKER, J. A jury convicted the defendant, Van Leon
Dorsey, Jr., of murder in the first degree on the theory of
deliberate premeditation for the death of Monique Vanzant
(victim), who was fatally stabbed in the apartment where she and 2
the defendant lived. The defendant was also convicted of
resisting arrest and possession of a class B substance.
Represented by new counsel, the defendant filed a motion for a
new trial, alleging ineffective assistance of counsel. The
motion was denied. The appeal from the denial was consolidated
with his direct appeal.
The defendant makes four claims of ineffective assistance
of counsel, which he contends require a new trial. He claims
that trial counsel unreasonably ended his investigation into the
defendant's posttraumatic stress disorder (PTSD), which the
defendant argues would have supported an additional substantial
defense, or a finding, "at worst," of murder in the second
degree. The defendant also argues counsel failed to adequately
investigate the victim's violent history, which would have
supported an Adjutant defense. See Commonwealth v. Adjutant,
443 Mass. 649 (2005). The defendant further claims that trial
counsel failed to introduce evidence of the victim's drug usage
immediately prior to her death and failed to introduce expert
testimony on the defendant's defensive hand wound that would
have further corroborated his testimony that he acted in self-
defense. Finally, the defendant argues that we should reduce
his conviction to murder in the second degree pursuant to G. L.
c. 278, § 33E. 3
We discern no reversible error in our review of the
defendant's direct appeal or his appeal from the denial of the
postconviction motion for a new trial. Having thoroughly
examined the record, we also conclude that there is no reason to
grant relief under G. L. c. 278, § 33E. Thus, we affirm the
defendant's convictions and the denial of his motion for a new
trial.
1. Background. We begin by reciting the facts that the
jury could have found and then summarize the evidence submitted
in support of the defendant's motion for a new trial, reserving
certain facts for later discussion.
a. The Commonwealth's case at trial. In May 2015, the
defendant and the victim were dating and had been living
together for several months in an apartment on the third floor
of a three-story home in Springfield. The victim had a five
year old daughter with Corey Benjamin. While the victim
attended school to become a medical assistant, Corey's family --
including his sister, Sheterika Benjamin; Corey and Sheterika's
mother, Sandra Turner; and Sandra's husband, Donald Turner --
would take care of the child.1 Sheterika lived at Sandra's house
with her children, her nieces, and Sandra and Donald.
1 Because Corey and Sheterika share a last name, and Sandra and Donald also share a last name, we refer to them by their first names. 4
At around 6:45 P.M. on May 12, 2015, while Sheterika was at
home, the victim called Sheterika on her cell phone and they had
a five-minute, light-hearted conversation. Sheterika could hear
the defendant yelling in the background of the call and believed
he sounded angry. After the call, Sheterika and Sandra began
getting ready to bring the victim's daughter back to the victim
and defendant's apartment. As they were in the car about to
leave, Donald answered a telephone call from the victim on the
home telephone line. The victim said, "I love you all," and
then the line went quiet. Donald went outside and told Sandra
about the victim's call, and Sandra went back inside the house
to pick up the telephone. The call was still connected, but
Sandra did not hear any sounds. She tried to call the victim
back, but the calls went to voicemail.
Sheterika and Sandra then drove to the victim and
defendant's apartment building, which took about five minutes.
Sheterika continued to call the victim on the way, but her calls
went to voicemail each time. Once they arrived, Sheterika found
the victim's body lying inside the apartment building's
entrance, which prevented the front door from opening
completely. She tried to grab the victim's arm, but it slipped
out of her grasp because it was covered in blood. Sandra called
911 while Sheterika stuck her head inside the doorway and called
for the defendant. The defendant came down the stairs, but when 5
Sheterika asked him what he did, the defendant did not say
anything. He then slammed the door closed with an angry
expression, and Sheterika heard the defendant return upstairs.
Sheterika and Sandra waited on the porch of the apartment
building until several police officers and first responders
arrived at around 7:30 P.M. One first responder testified that
he saw the defendant looking outside at the group through a
third-story window, and he would periodically appear and
disappear from view. A police officer eventually forced the
apartment building's door open, and he observed the victim lying
on the floor with no vital signs. The entryway floor was
covered in blood. There were bloody footprints on the stairs
leading away from the victim and bloodstains covering the stairs
and walls leading up the staircase to the third-floor apartment.
Inside the apartment, there were bloodstains in the living room
and in the kitchen.
A forensic scientist at the State police crime laboratory
collected blood samples from the scene of the crime. At trial,
she opined that the spatter and "cast off" pattern of
bloodstains throughout the front doorway area of the third-floor
apartment and the staircase were consistent with blood being
released from an object or a person in motion traveling
downward, and that the bloodstains on the living room wall near 6
the front door were spatter stains consistent with blood being
released from an object or a person in motion.
Two officers used the staircase at the back of the building
to enter the third-floor apartment through an open door. They
found the defendant lying face down on a couch with his hands
under his body. Both the defendant and the couch were covered
in blood. The officers repeatedly instructed the defendant to
get on the floor and to show his hands, and after the fifth
command to do so, the defendant slid off the couch and complied.
The defendant struggled as the officers tried to handcuff him,
and another officer entered the apartment through the front door
and assisted. Pepper spray was deployed, and the officers
eventually placed handcuffs and leg shackles on the defendant.
The same forensic scientist also collected blood samples from
the defendant at the scene of the crime.
In the apartment, officers found a broken knife handle and
blade on the couch where the defendant was lying; the victim's
Samsung cell phone underneath a couch cushion; and two small
plastic bags containing phencyclidine, also known as PCP, on a
built-in hutch in the living room.2 There was also a partially
2 The parties stipulated to the fact that both small plastic bags recovered from the apartment contained PCP. 7
opened box of knives in the kitchen sink and two burnt "blunts"
on the kitchen table near the victim's notebooks.3
The officers eventually led the defendant, who was walking
"on his own power," down the apartment building's back
staircase. As the defendant descended the stairs, he repeatedly
jerked his body away from the officer walking behind him. At
the bottom of the stairs, an officer noticed that the defendant
had a small cut on his hand and called for a paramedic to treat
the wound. The defendant was cooperative while being treated
and escorted to the police cruiser.
The defendant was thereafter transported to the Springfield
police station. While a criminalist took sample swabs of the
fluids and blood on the defendant's body, the defendant began to
shake for about fifteen seconds. An officer testified that the
defendant's behavior did not appear to be a seizure,4 but the
defendant was placed on his side into the recovery position as a
precaution. Someone then called for an ambulance to transport
the defendant to a hospital. While waiting for the ambulance,
the defendant resumed behaving normally.
3 Photographs of the notebooks, which included handwritten medical terms, were introduced at trial. The defendant does not dispute that these notebooks belonged to the victim.
4 This officer also testified that he had received training on handling people who are having seizures and had witnessed several seizures in the past. 8
At the hospital, the defendant received a Glasgow Coma
Scale score of eight, where a score of fifteen indicates a fully
alert person.5 The defendant was administered various medical
tests but was not diagnosed with having a seizure. Prior to
being discharged, the defendant had been lying down in the
hospital for five to six hours without any unusual behaviors.
At the time of discharge, the defendant had a Glasgow Coma Scale
score of fifteen. When it was time to leave the hospital, the
defendant complied with all police orders. He then walked
normally from the hospital room to the police car, which was
about sixty yards.
Officers drove the defendant to the police station, which
took about five minutes. Upon arriving, the defendant no longer
walked on his own and officers had to carry him into the booking
area. The defendant was informed that he was being audio and
visually recorded. Throughout the booking process, the
defendant was hunched over, appearing unable to stand on his
own.
Dr. Alison Fife, a psychiatrist hired by the Commonwealth 5
to evaluate the defendant, testified at trial that the Glasgow Coma Scale assesses eye movements, motor movements, and cognition to determine alertness. The defendant's hospital records, which were admitted at trial, further note that at this time, the defendant had "vital signs . . . within normal limits" and was "resisting easily opening his eyes," but he would "not respond[] to verbal or stimuli [sic]". 9
The medical examiner, Dr. Katherine Lindstrom, performed
the autopsy on the victim. She determined that the victim had
suffered six sharp-force injuries that caused her death,
including to her skull, neck, right hand, and forearm. The
victim also had superficial stab wounds on her left arm, blunt
force injuries to the left side of her face, and abrasions on
her neck, left arm and left hand, and legs. Based on their
color, the medical examiner testified that some of the abrasions
appeared to have been inflicted after the victim's death,
whereas others likely occurred before her death. The medical
examiner opined that the incised wounds on the victim's right
hand and forearm were consistent with defensive wounds, and the
wound on the victim's skull would not have prevented her from
speaking. The medical examiner also testified that she ordered
a toxicology examination of the victim's body.
b. The defendant's case at trial. The defendant admitted
to killing the victim, but trial counsel argued that the
defendant acted in self-defense, albeit with excessive force,
and was therefore guilty only of voluntary manslaughter. Trial
counsel also argued that the defendant lacked the requisite
intent for murder in the first degree because the defendant was
under the influence of PCP.
The defendant's first witness was Dr. Alison Fife, a
psychiatrist hired by the Commonwealth to evaluate the 10
defendant. Fife testified about the physiological effects of
PCP, including mental disconnectedness, diminished impulse
control, delusions, hallucinations, seizures, and aggression.
She also testified that the defendant told her he frequently
used PCP and had never grown violent as a result. She opined
that the defendant had a diminished intelligence quotient but no
major mental illness, that he may have feigned his seizure-like
symptoms, and that he was able to appreciate the wrongfulness of
his conduct at the time of the victim's death.
The defendant then testified on his own behalf. He
explained that he began the day of the victim's death with a job
interview and then eventually returned to his apartment. That
evening, he and the victim were smoking marijuana and PCP
together. At some point, the defendant received a telephone
call from Stephanie Lopez, his ex-girlfriend and the mother of
his child. He took the call in another room while the victim
went into the kitchen. The defendant was upset by the call with
Lopez, which concerned money for their child, but he testified
that he was not angry. The victim then came out of the kitchen
and was angry at the defendant because she believed he was
cheating on her with Lopez. The defendant testified that in
response, he began to leave the apartment when he suddenly
looked over his shoulder and saw the victim standing with a
knife in her hand. He then "grabbed her wrist and the knife at 11
the same time," and the two struggled throughout the apartment
for control of the knife. The defendant eventually took the
knife and, in a panic, stabbed the victim. He then stepped
back, and the victim ran through the front door. After hearing
a noise, he went downstairs and saw the victim lying there. The
defendant testified that he did not remember anything else that
happened until days later.
On cross-examination, the Commonwealth established that the
defendant did not tell Fife that he was attacked by the victim
or that he stabbed her in self-defense. Nor did he tell this to
Dr. Robert Joss, who was hired by the defense. Rather, he told
them he did not remember anything that occurred after his job
interview.
c. Evidence presented in the defendant's motion for a new
trial. In this consolidated appeal, the defendant raises four
claims of ineffective assistance of counsel. First, he claims
trial counsel failed to adequately investigate his PTSD, which
would have supported the theory that he lacked the requisite
intent for murder in the first degree based on the theory of
premeditation. In his motion for a new trial, the defendant
provided the opinion of Dr. Seth Pitman, who evaluated the
defendant in April and May 2024, nine years after the victim's
death. Pitman opined that at the time of the victim's death,
the defendant was suffering from PTSD, which arose from a prior 12
incident in which the defendant was stabbed. As a result, the
defendant was unable to discern reality, was in a compromised
and reactive mental state, and acted in a highly emotional,
impulsive manner.
The defendant's three remaining claims each relate to trial
counsel's alleged failure to adequately investigate and argue
his theory of self-defense and that the victim was the first
aggressor. The defendant alleges trial counsel failed to
adequately investigate the victim's history of violent conduct.
His motion for a new trial included an affidavit from Lopez, who
attested that she had a physical altercation with the victim in
2014 because the victim was jealous of Lopez's prior
relationship with the defendant. Similarly, the defendant
presented an affidavit from Alyssa Orwat, a mutual friend of the
defendant and the victim, who stated that she witnessed at least
one altercation between the defendant and the victim in which
the victim was the aggressor. Additionally, the defendant
himself provided an affidavit in which he attested to additional
incidents of the victim's alleged violent conduct.
Next, the defendant contends trial counsel failed to
introduce evidence that the victim was under the influence of
PCP immediately before the attack. The defendant's motion
provided evidence, which was available at the time of trial,
that the victim had PCP in her bloodstream at the time of her 13
death and that the blunts found on the kitchen table next to the
victim's notebooks contained marijuana and PCP.
Finally, the defendant claims trial counsel failed to
introduce evidence corroborating the defendant's claim that the
laceration on his palm was a defensive wound. The defendant
provided the opinion of Dr. Richard Ma, a hospital-based
physician and primary care provider with expertise in internal
medicine, who examined photographs of the laceration on the
defendant's hand and related medical records and opined that it
was consistent with a defensive wound.
2. Procedural history. On June 29, 2015, the defendant
was indicted on one count of murder in the first degree (count
one); one count of resisting arrest (count two); one count of
unlawful possession of PCP, a class B substance, as a subsequent
offender (count three); and one count of cultivation of
marijuana, a class D substance, as a subsequent offender (count
four). A jury trial began on March 11, 2020, but resulted in a
mistrial due to the COVID-19 pandemic.6 On June 14, 2021, a
second jury trial on the same charges began, with the defendant
having new trial counsel. On June 21, 2021, the jury convicted
6 The defendant was represented by different counsel at the first trial. Unless otherwise noted, references to "trial counsel" throughout this opinion refer to the defendant's lawyer at his second trial. 14
the defendant of murder in the first degree on a theory of
premeditation, resisting arrest, and possession of PCP.7 The
judge sentenced the defendant to life imprisonment without the
possibility of parole for the murder conviction and concurrent
terms of one year in the house of correction for the convictions
of resisting arrest and possession of PCP.
The defendant appealed from his convictions and
subsequently filed a motion for a new trial. The motion judge,
who was not the trial judge, denied the defendant's motion for a
new trial after a nonevidentiary hearing. The defendant's
appeal from that order was consolidated with his direct appeal
before this court, pursuant to G. L. c. 278, § 33E.
3. Discussion. a. Standards of review. "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). See Commonwealth v. Hernandez, 481 Mass. 189, 195,
cert. denied, 589 U.S. 958 (2019) ("As the motion judge was not
the trial judge, and as the motion judge conducted a
nonevidentiary hearing, we are in 'as good a position as the
7 The Commonwealth filed a nolle prosequi as to count four and so much of count three that alleged the defendant was a subsequent offender. 15
motion judge to assess the trial record'" [footnote and citation
omitted]).
"In the review of cases involving murder in the first
degree, '[r]ather than evaluating an ineffective assistance
claim under the traditional standard of Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974), . . . we apply the standard
of G. L. c. 278, § 33E, to determine whether there was a
substantial likelihood of a miscarriage of justice'" (footnote
and citation omitted). Commonwealth v. Kolenovic, 478 Mass.
189, 192-193 (2017). "Under this standard, 'we first ask
whether defense counsel committed an error in the course of
trial,' and if there was error, 'we ask whether it was likely to
have influenced the jury's conclusion.'" Commonwealth v.
Gibson, 492 Mass. 559, 568 (2023), quoting Commonwealth v.
Ayala, 481 Mass. 46, 62 (2018). "[T]he defendant bears the
burden of demonstrating both error and harm." Commonwealth v.
Seino, 479 Mass. 463, 473 (2018). "Where a claim of error is
based on a tactical or strategic decision by trial counsel,
rather than an omission or mistake, an attorney's decision is
only ineffective if it was manifestly unreasonable," that is to
say, a decision that "lawyers of ordinary training and skill in
criminal law would not consider competent" (quotation and
citations omitted). Commonwealth v. Robinson, 493 Mass. 775,
789-790 (2024). 16
We address each of the defendant's four claims in turn.
b. The defendant's potential PTSD. Joss was hired by the
defense prior to trial in 2017 to evaluate the defendant's
mental state at the time of the victim's death. Joss concluded
that although the defendant had not been diagnosed with PTSD,
"[t]here [was] evidence for a diagnosis of [PTSD]." Trial
counsel then hired Dr. Tammy Jones to interview the defendant
regarding his PTSD. Although Jones provided no written
findings, trial counsel stated in his affidavit submitted with
the motion for a new trial that, after meeting with Jones, "the
conclusion had been that [the defendant] had never been
officially diagnosed or treated for PTSD. I then concluded that
I would not be able to use PTSD in support of [the defendant's]
defense at trial . . . ." The defendant argues that trial
counsel's decision not to continue investigating the defendant's
PTSD was manifestly unreasonable because trial counsel already
knew, based on Joss's findings, that the defendant did not have
a PTSD diagnosis. Thus, because the absence of a PTSD diagnosis
does not indicate whether the defendant was suffering from PTSD
at the time of the victim's death, the defendant claims that
trial counsel prematurely abandoned his inquiry into the
defendant's PTSD.
"Trial counsel must conduct a reasonable investigation into
possible defenses, even if counsel ultimately does not pursue 17
those defenses at trial." Commonwealth v. Long, 476 Mass. 526,
532 (2017). "Absent a reasonable investigation, defense counsel
lacks sufficient information to evaluate his or her strategic
options and to make decisions in the best interests of the
client." Commonwealth v. Diaz Perez, 484 Mass. 69, 74 (2020).
"Where a defendant claims ineffective assistance of counsel on
the ground that counsel's investigation was inadequate, the
defendant 'must identify with particularity how any
investigation that counsel failed to conduct would have
benefited the defense.'" Commonwealth v. Noguera, 496 Mass.
601, 615 (2025), quoting Commonwealth v. Shepherd, 493 Mass.
512, 536-537 (2024).
We conclude that the defendant has failed to meet his
burden to prove that trial counsel was ineffective on the ground
of inadequate investigation of the defendant's PTSD. The record
shows that counsel did engage an expert, Jones, specifically to
inquire into the defendant's PTSD. Because Jones provided no
written findings, the only information about Jones's conclusions
is the two sentences in trial counsel's affidavit stating that
Jones determined the defendant had not been diagnosed with PTSD,
which led trial counsel to conclude that PTSD was not available
to support the defendant's defense at trial. There are thus
significant gaps in trial counsel's affidavit, because it is not
clear what specifically Jones said for trial counsel to arrive 18
at that conclusion -- for example, whether Jones concluded only
that the defendant had not been diagnosed with PTSD, merely
repeating what trial counsel already knew from Joss's findings,
or whether Jones opined on whether the defendant actually had
PTSD.8 "Speculation, without more, is not a sufficient basis to
establish ineffective representation." Shepherd, 493 Mass. at
537, quoting Commonwealth v. Duran, 435 Mass. 97, 103 (2001).
"Moreover, where trial counsel submitted his own affidavit,
trial counsel's failure to confirm [certain] points speaks
volumes. When weighing the adequacy of the materials submitted
in support of a motion for a new trial, the judge may take into
account the suspicious failure to provide pertinent information
from an expected and available source." Commonwealth v.
Goodreau, 442 Mass. 341, 354 (2004).9
8 The defendant avers in his affidavit submitted with his motion for a new trial that Jones did not evaluate him to determine whether he had PTSD and instead asked him only whether he had been diagnosed and treated for PTSD. But "[a] judge is not required to accept as true the allegations in a defendant's affidavit, even if nothing in the record directly disputes them." Commonwealth v. Freeman, 442 Mass. 779, 792 n.14 (2004), quoting Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000).
9 We also note that Pitman's report has its own weaknesses. Although Pitman opined that the defendant was suffering from PTSD at the time of the killing and was unable to discern reality, his report acknowledges that the defendant provided him with more detail about the killing than the defendant provided to any of the previous experts. Additionally, even Pitman, like Fife, opined that the defendant was likely feigning and exaggerating some of his symptoms. 19
Furthermore, other information in the record supports a
conclusion that the decision to forgo further investigation of
the PTSD defense was not unreasonable. See Commonwealth v.
Tavares, 491 Mass. 362, 366 (2023) ("counsel need not descend
into every rabbit hole"). The defendant's own expert, Joss,
concluded that although the defendant showed signs of PTSD, the
defendant's actions were "likely due to the use of both
marijuana and PCP which resulted in a temporary psychosis."
Accordingly, trial counsel introduced expert testimony and
argued that the defendant was incapable of forming "the intent
to kill required for murder in the first degree under the theory
of deliberate premeditation," Commonwealth v. Doughty, 491 Mass.
788, 800 (2023), or "in relation to whether the defendant
committed the killing with extreme atrocity or cruelty" on this
alternative basis of the defendant's PCP consumption (quotation
omitted), id. at 803.10 Indeed, trial counsel elicited testimony
from Fife, the Commonwealth's own expert, that PCP can cause
delusions, hallucinations, seizures, and aggressive behavior,
and can reduce impulse control.11
10The jury did not convict the defendant of murder in the first degree on a theory of extreme atrocity or cruelty.
11However, Fife also concluded that the defendant did not have a major mental illness and that he was able to appreciate the wrongfulness of his conduct at the time of the victim's death. 20
In sum, the defendant has failed to prove that trial
counsel was ineffective for failing to conduct an adequate
investigation of the defendant's PTSD.
c. The victim's history of violent conduct. The defendant
next contends that trial counsel's investigation of the victim's
history of violent conduct was also inadequate and prejudiced
his self-defense claim. Under Adjutant, 443 Mass. at 664,
"where the identity of the first aggressor is in dispute and the
victim has a history of violence . . . , the trial judge has the
discretion to admit evidence of specific acts of prior violent
conduct that the victim is reasonably alleged to have initiated,
to support the defendant's claim of self-defense." In his
affidavit, trial counsel avers that although he looked for "so-
called Adjutant evidence" in the victim's criminal record, he
"did not see anything that [he] felt would be admissible" and
thus the jury did not hear any such evidence at trial. The
defendant argues that because Adjutant does not require that
prior violent conduct result in criminal charges in order to be
admissible, and given the importance of evidence corroborating
his self-defense claim, it was manifestly unreasonable for trial
counsel to limit his investigation for Adjutant evidence to the
victim's formal criminal record. In the defendant's view, such
a decision was particularly unreasonable because during the
defendant's first trial, which ended in a mistrial due to the 21
COVID-19 pandemic, Sheterika testified that she and the victim
had a fist fight sometime prior to the killing. Trial counsel
was therefore on notice that potential Adjutant evidence existed
outside of the victim's criminal record.12
Even assuming that trial counsel's investigation was
inadequate for the reasons offered by the defendant, the
defendant has not shown that any such shortfall created a
substantial likelihood of a miscarriage of justice. See
Noguera, 496 Mass. at 616. First, it is not clear that trial
counsel would have presented evidence of the alleged prior
incidents of violence even after a more fulsome investigation.
See id. at 617 (defendant's argument that deficient
investigation resulted in substantial likelihood of miscarriage
of justice "rests on speculation, because the defendant has not
shown that counsel would have introduced these records in
evidence at trial even if he had obtained them"). In his
affidavit, trial counsel stated that he chose not to present
Adjutant evidence in part because he "felt strategically it may
not be beneficial in the eyes of the jury." Any strategic
reasons trial counsel had for not offering evidence of prior
12The defendant also stated in his affidavit that he had alerted trial counsel to several instances of the victim attacking him and others. However, Joss's evaluation states that the defendant reported that he had not had any "fights or verbal arguments" with the victim. 22
violent acts from the victim's criminal record would reasonably
apply with even greater force to the incidents highlighted in
the defendant's motion for a new trial, as these incidents are
uncorroborated by police reports or other official records.
Moreover, each of the violent acts described in the
defendant's motion suffers from significant weaknesses. For
example, both Orwat's and Lopez's credibility are undermined by
the fact that they have close relationships with the defendant,
and they did not come forward with their allegations of the
victim's violent conduct until after the defendant had been held
before trial for several years and was eventually convicted.
See Commonwealth v. Washington, 459 Mass. 32, 41 (2011), quoting
Commonwealth v. Hart, 455 Mass. 230, 238 (2009) (although "'[a]
person ordinarily has no legal obligation to provide exculpatory
information to the police,' . . . a witness's failure to do so
may support 'a reasonable inference that the exculpatory
information is not credible'" [citation omitted]). Further,
despite averring in her affidavit that she "never throw[s] the
first punch" and thus the victim likely instigated their
physical fight in 2014, Lopez's criminal record describes an
incident in which she was accused of initiating a fist fight at
a bar. Orwat also has several serious felony convictions. See
Commonwealth v. Smith, 450 Mass. 395, 407, cert. denied, 555
U.S. 893 (2008) ("Under G. L. c. 233, § 21, evidence of a 23
witness's prior convictions may be used to impeach the witness's
credibility if the convictions meet the requirements of that
section, [and] convictions relevant to credibility are not
limited to crimes involving dishonesty or false statements").
Regarding the violent conflict between the victim and Sheterika,
the defendant's motion contains no evidence that the victim was
the first aggressor. See Adjutant, 443 Mass. at 664 (judge has
discretion to admit evidence of violent acts "that the victim is
reasonably alleged to have initiated" [emphasis added]). And
because Corey did not submit an affidavit about the victim's
violent conduct toward him during their relationship, the only
support for each of the remaining allegations comes from the
defendant's self-serving affidavit.
Finally, even if trial counsel had proffered and the trial
judge had admitted such evidence despite the foregoing, it is
nevertheless unlikely that this evidence would have influenced
the jury's verdict. See Noguera, 496 Mass. at 622, citing
Gibson, 492 Mass. at 568. We agree with the Commonwealth's view
that it is a stretch to suggest that because the victim had
previously engaged in fist fights, she would have attacked the
defendant with a large kitchen knife. Although each of the
alleged incidents provide some limited support for the
defendant's claim that the victim was the first aggressor,
slapping, punching, and scratching are markedly different from 24
threatening someone with a deadly weapon. Cf. Commonwealth v.
Deconinck, 480 Mass. 254, 267 (2018) (judge did not abuse
discretion in finding that violation of restraining order was
not probative of victim's aggression and use of knife against
defendant). Ultimately, the defendant's self-defense claim
required that the jury credit his testimony; but the jury also
heard testimony, from both Fife and the defendant himself, that
the defendant's story had changed several times since the
killing. His failure to tell either Fife or Joss, the latter
being the defense's own expert, that he was attacked by the
victim and had to defend himself significantly undercuts the
credibility of his self-defense claim. Furthermore, the
physical blood spatter evidence and the wound on the right side
of the victim's neck were consistent with the Commonwealth's
theory that the defendant stabbed the victim as she attempted to
flee from the apartment. We therefore conclude that any
inadequate investigation or other errors by trial counsel
relating to this Adjutant evidence did not create a substantial
likelihood of a miscarriage of justice. See Gibson, supra.
Accordingly, the defendant's motion for a new trial was properly
denied on this ground.
d. The victim's drug usage. Next, the defendant argues
that trial counsel was ineffective for failing to introduce
evidence that the victim was under the influence of PCP 25
immediately before her death, particularly because PCP can cause
increased aggressive behavior. We reject this argument because
(1) this evidence was duplicative of evidence presented at
trial, and (2) any additional evidence that PCP consumption
could have caused the victim to act violently could have been
used by the Commonwealth to suggest that the defendant, too,
would have been more likely to act violently.13
More specifically, there was ample evidence introduced at
trial of both the victim's and the defendant's PCP usage: there
was evidence of PCP and marijuana in the apartment, including
photographs of two burnt blunts on the kitchen table near the
victim's notebooks; testimony of the crime scene officer,
Sergeant James McCoy, that the burnt blunts were consistent with
those containing narcotics; and testimony of the defendant that
both he and the victim used PCP on the evening of the victim's
death. Additionally, Fife specifically testified that PCP can
cause aggressive behavior. Trial counsel's decision not to
belabor the victim's PCP usage to suggest that she was the first
aggressor was thus not manifestly unreasonable because, as the
motion judge noted, the evidence cuts both ways: the jury could
13Trial counsel's affidavit on this issue states only that "[e]vidence of both parties' use of PCP came into evidence through [the defendant's] testimony as well as testimony from the officers who responded on scene." 26
equally have inferred from the defendant's PCP usage that he was
the first aggressor. See Robinson, 493 Mass. at 791-792
(decision not to call expert not manifestly unreasonable where
expert's testimony could have "cut both ways" by undermining
other witnesses' testimony); Commonwealth v. Kirkland, 491 Mass.
339, 356 (2023) (counsel not ineffective where expert testimony
"had the potential to be a double-edged sword for the defense,
potentially helping the defendant's case on the one hand but
hurting it on the other"); Commonwealth v. Teixeira, 486 Mass.
617, 638 (2021) (counsel's decision not to call witness not
manifestly unreasonable "[s]ince the witness's testimony at best
would have been a double-edged sword"). We therefore discern no
error by trial counsel.
e. The defendant's hand wound. Finally, we address the
defendant's assertion that his trial counsel was ineffective for
failing to introduce expert testimony that the laceration on his
hand was consistent with a defensive wound. The defendant
contends that this failure was prejudicial because it deprived
him of critical corroboration of the only physical evidence
supporting his self-defense claim. In support of this argument,
the defendant submitted a report from Ma, a physician who the
defendant claims has "expertise in identifying and treating
defensive wounds made with sharp instruments such as knives."
In his report, Ma opined that the injury on the defendant's 27
"right palm [was] consistent with a defensive wound" and
inconsistent with the Commonwealth's theory at the trial, which
was that the defendant injured himself when he lost grip of the
knife while attacking the victim.
We note at the outset that the proffer to establish Ma's
credentials as an expert on defensive wounds was weak at best.
Although the record before us demonstrates that Ma worked as a
hospital-based physician and primary care provider for many
years, apart from conclusory statements in Ma's report and
appellate counsel's affidavit,14 there is little indication that
Ma had any experience or training in the area of forensic
pathology generally or defensive wounds specifically. Contrast
Commonwealth v. Cyr, 425 Mass. 89, 96-97 (1997), S.C., 433 Mass.
617 (2001) (medical examiner qualified to opine on whether
injuries were defensive wounds because he "based his opinion on
his specialized training" and "his extensive experience in
having conducted approximately 3,000 autopsies").
14For example, appellate counsel avers in an affidavit submitted with the defendant's motion that in the course of counsel's work with Ma, "he confirmed to [counsel] that he is a physician with expertise in identifying and treating wounds made with sharp instruments (such as knives), including defensive wounds." Likewise, in Ma's report, he states that he has "the scope of licensure or certification that typically manages the medical condition, procedure, treatment, or experience to render an opinion for this case." 28
Even assuming Ma was qualified to opine as he did, we do
not think any related error "was likely to have influenced the
jury's conclusion" (citation omitted). Kirkland, 491 Mass. at
346. The evidence at trial indicated that the defendant
brutally attacked the victim and inflicted six sharp-force
injuries, while the laceration on his hand was relatively
minor.15 Moreover, trial counsel was able to elicit testimony
from the paramedic who treated the defendant at the scene about
the location and nature of the injury, and counsel highlighted
the injury for the jury in his closing argument. Although
expert testimony on this issue might have helpfully bolstered
the defendant's narrative of the killing, "[t]here is no
requirement that trial counsel always present expert . . .
evidence to support an argument, especially where other evidence
is presented to support it." Commonwealth v. Hensley, 454 Mass.
721, 736 (2009). We therefore conclude that the motion judge
did not err in denying the motion for a new trial on this
issue.16
The defendant's hospital records describe the injury as 15
"a small linear laceration on the right palmar aspect of the hand."
The defendant also suggests that trial counsel was 16
ineffective for not taking full advantage of prior testimony from the paramedic who treated the defendant. On cross- examination, trial counsel established that the paramedic had testified at the defendant's first trial that he observed multiple "lacerations" on both of the defendant's hands. 29
f. Review under G. L. c. 278, § 33E. The defendant seeks
a reduction in the murder verdict to a lesser degree of guilt
pursuant to our power under G. L. c. 278, § 33E. The evidence
in this case suggested that the defendant retrieved a knife from
the kitchen and repeatedly stabbed the victim and chased her
down the stairs as she tried to flee the apartment. This
evidence amply supports the defendant's conviction of murder in
the first degree on a theory of premeditation. See Commonwealth
v. Guy, 441 Mass. 96, 102 (2004) ("there was evidence that the
defendant deliberately selected a knife from his collection of
knives to use on the victim. . . . This choice, as well as his
pursuit of the fleeing, wounded victim, supports the jury's
finding of deliberate premeditation"); Commonwealth v. Watkins,
373 Mass. 849, 852 (1977) ("evidence that the defendant, after a
quarrel, went to the kitchen, picked up a knife and returned to
stab the victim is sufficient [for finding deliberate
Because trial counsel indicated that he intended to rely on this prior testimony, the trial judge stated at the charge conference that he would not give a limiting instruction on prior inconsistent statements. However, the trial judge did give this limiting instruction, and trial counsel did not object. We reject this argument for substantially the same reasons described supra. In light of the victim's significant injuries, evidence that the defendant had multiple lacerations on his hands rather than a single minor laceration would not have made a difference to the jury. We also note that the defendant's hospital records state that there was "[n]o evidence of trauma" except a single laceration on his palm. 30
premeditation]"). In light of the entirety of the record, we
discern no basis to reduce the verdict of murder in the first
degree.
4. Conclusion. For the foregoing reasons, we affirm the
judgments and the order denying the defendant's motion for a new
So ordered.