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-1019
COMMONWEALTH
vs.
KENTON THOMAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of the
lesser included offense of involuntary manslaughter on an
indictment that charged him with second-degree murder. The
defendant raises four issues on appeal. First, he contends that
trial counsel was ineffective for failing to properly redact the
transcript of his recorded interview with detectives that was
submitted to the jury. Second, he argues that the admission of
a folding knife found on his person when he was arrested weeks
after the murder was unduly prejudicial because it was not
definitively proven that the knife was used to stab the victim.
Third, the defendant argues that the judge abused her discretion
by limiting cross-examination of a cooperating witness. Lastly, the defendant argues that he was deprived of a fair trial when
the judge ruled that his jury consultant could not be present in
the courtroom during jury selection. We affirm.
Background. In the early morning hours, the defendant, his
friend, and the victim socialized together near Mattapan Square.
The friend used the defendant's cellular telephone to call two
drug dealers, planning to buy "crack" cocaine with money that he
and the defendant had pooled. Although the first drug dealer
did not have anything to sell, the second drug dealer arrived by
car and sold the friend crack cocaine. The friend and the
defendant walked to a nearby church parking lot and smoked the
crack cocaine. The victim did not join them. After five to ten
minutes, the friend returned to a place near where he bought the
drugs and met up with the victim. The defendant subsequently
rejoined them. At trial, the friend testified that the
defendant punched the victim in the shoulder twice and said,
"Where's my money?" The defendant knocked the victim to the
ground, but the victim got back up. The defendant and the
friend then left the area on foot. Surveillance video showed
the defendant and the friend exiting an alley. The two figures
were identified during the course of the trial but we describe
them solely by order of appearance. The first figure walked out
of the alley and down one street, and a second figure jogged out
of the alley and down another street. The video showed the
2 first figure kneeling near a storm drain and tossing an object
down the drain. A knife was later recovered from the bottom of
the storm drain.
Less than a minute after the defendant and his friend left
the alley, the victim staggered out of the alley and collapsed
in the middle of the street. A passing driver later found the
victim lying in a pool of blood with a box cutter next to him.
The victim had suffered one stab wound and five incision wounds.
The stab wound to his arm cut his brachial artery, which caused
significant bleeding. The victim died due to sharp wound
injuries and blood loss. The medical examiner opined that the
kind or kinds of instruments that were used to kill the victim
could not be determined. It was the Commonwealth's theory at
trial that the first figure to exit the alley was the defendant,
that he dropped a knife down the storm drain, and that the storm
drain knife was the weapon he used to stab and kill the victim.
The friend cooperated with investigators. He provided a
physical description of the defendant as well as the drug
dealer's phone number. Investigators obtained the drug dealer's
cell phone call records, which revealed a call from a phone
number registered to the defendant's mother. The friend
identified the defendant in a photo array as the man who stabbed
the victim.
3 Seven weeks after the crime, detectives brought the
defendant in for questioning. Before the interview, detectives
seized a folding knife that the defendant was carrying, which
was later admitted in evidence at trial. During the recorded
interview, the defendant made several incriminating statements.
The defendant admitted that he carried an old phone that he let
people use to call drug dealers. He said that "sometimes, you
know, you just get tired of being bullied," and "I just get
tired of it, but you never intend to hurt anybody." The
defendant went on to tell detectives that "just hypothetically
speaking . . . you're thinking, you know, the next time this
particular person will know or won't, you know, bother this
person, whatever, and then you get word that somebody died.
Your heart jumps out of your fucking chest . . . . It's over
for me." Although the defendant denied any wrongdoing, he
admitted that he was at the crime scene with someone whose name
"starts with a P."1 He insisted that "nothing was meant to go
down" and that "I witnessed something I wasn't supposed to
witness." A redacted version of this interview was admitted in
evidence at trial. The redactions consisted of both court-
ordered redactions and redactions agreed-upon by the parties.
The redactions concerned potentially prejudicial information
1 The friend's name starts with the letter "P."
4 such as past arrests, an unrelated warrant, and the potential
sentences for murder. The Commonwealth also introduced a
redacted transcript of the interview, and each juror was
provided with a paper copy. During deliberations, the jury also
had access to a thumb drive with a PDF version of the redacted
interview.
Sometime after trial, the defendant became aware that the
PDF transcript on the thumb drive may have been improperly
redacted.2 The contents of the thumb drive, including the PDF
file, are part of the record on appeal. The defendant argues
that if the jurors had plugged the thumb drive into a computer
and viewed the PDF, that they could have edited the PDF and read
the redacted portions. The defendant contends that the
"redactions" were merely black highlighting, and that by
changing the color of the highlights to a transparent color, or
by deleting them altogether, the jurors could have read the
redacted portions of the interview.
Discussion. 1. Ineffective assistance of counsel. The
defendant contends that trial counsel was ineffective for
allowing the thumb drive with the improperly redacted PDF file
2 The defendant's appellate counsel disclosed at oral argument that he discovered the allegedly improper redactions as he was preparing the record appendix for this appeal.
5 to go into the jury room. In the alternative, he argues that
this sequence of events gave rise to a substantial risk of a
miscarriage of justice.
In a claim for ineffective assistance of counsel, the
defendant has the burden of showing that "(1) 'there has been
serious incompetency, inefficiency, or inattention of
counsel -- behavior of counsel falling measurably below that
which might be expected from an ordinarily fallible lawyer'; and
(2) as a result, the defendant was 'likely deprived . . . of an
otherwise available, substantial ground of defence.'"
Commonwealth v. Henley, 488 Mass. 95, 134 (2021), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
A motion for new trial is the "preferred method" for
raising an ineffective assistance of counsel claim.
Commonwealth v. Davis, 481 Mass. 210, 222 (2019). A claim for
ineffective assistance of counsel made solely on the trial
record is the "weakest form" of such a claim. Id. Only "when
the factual basis of the claim appears indisputably on the trial
record" will the defendant be entitled to relief. Id. at 223,
quoting Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015).
The defendant's argument fails at the outset because it
lacks a factual predicate. The record is devoid of any evidence
that the PDF could have been altered by the jurors. Since trial
counsel did not move for a new trial, there was no fact finding
6 in the lower court regarding the PDF files. The defendant
argues that because the PDF file is part of the record on
appeal, this court can draw its own conclusions regarding
whether the jurors could have viewed the redactions. This is
not the role of an appellate court. See Commonwealth v. Alphas,
430 Mass. 8, 21 (1999) (Greaney, J., concurring) ("Appellate
courts do not sit as triers of fact"). We are in no position to
assess for ourselves the technological feasibility of editing
PDF documents.
Moreover, even if we were to assume that the PDF is capable
of manipulation as the defendant asserts, there is no showing
that the jurors ever viewed the PDF, let alone tampered with it.
The judge instructed the jurors that "you are not to speculate
or engage in any guesswork about what the blacked-out portion
may contain or any of those portions may contain because they're
not before you." If the jurors had tampered with the PDF to
read the redactions, they would have directly violated the
judge's instruction. We presume that the jury followed the
judge's instructions. Commonwealth v. Brown, 479 Mass. 163, 173
(2018). To charge counsel with the obligation to foresee a
jury's disobedience would undermine this clearly settled
proposition.
The defendant argues that despite the factual deficiency,
the mere possibility that the jury could have viewed the
7 redactions is enough to warrant a new trial. We disagree.
First, the defendant cites no authority for this proposition.
Again, as we have noted, we presume that the jurors properly
followed the judge's instruction. Brown, 479 Mass. at 173.
Second, in an ineffective assistance of counsel claim, the
defendant bears the burden of showing that counsel's errors
"likely deprived the defendant of an otherwise available,
substantial ground of defence." Saferian, 366 Mass. at 96. See
Commonwealth v. Montez, 450 Mass. 736, 755 (2008). In other
words, "there ought to be some showing that better work might
have accomplished something material for the defense."
Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). See
Commonwealth v. Millien, 474 Mass. 417, 430-431 (2016)
(articulating this standard in terms of whether the error
prejudiced the defendant). The defendant has failed to make
this showing. There are no facts in the record that establish
that the defendant was prejudiced by counsel's purported errors,
since there is no evidence that the jurors ever read the
prejudicial material. The defendant's ineffective assistance
claim fails as a result.
The defendant's alternative argument -- that the issue gave
rise to a substantial risk of a miscarriage of justice -- fails
for the same reasons. As explained above, the defendant has not
established that the jurors ever viewed the redactions. Without
8 such a showing, there is no proper basis on which we can
conclude that there was any error, much less one that materially
influenced the outcome. See Commonwealth v. Horne, 476 Mass.
222, 228 (2017).
2. Restriction of cross-examination. The defendant filed
a motion in limine to admit evidence that at the time of the
crime, the friend had an open case for assault with a deadly
weapon involving a knife. The judge ruled that testimony
concerning the following facts were admissible: that the friend
had an open case for assault with a deadly weapon, that it
involved a knife, that the case was open when the friend spoke
with investigators, and that the Boston police department was
involved in both cases. The judge excluded testimony regarding
the facts of the open case and the potential sentences for
assault with a deadly weapon.
At trial, the friend testified that he spoke to the police
on three separate dates prior to his grand jury testimony. He
testified that the open case was pending during all three
interviews. Defense counsel extensively cross-examined the
friend; he inquired into the friend's drug habit, inconsistent
testimony, and bias. To impeach the friend for bias, defense
counsel asked if the open case was "in the back of [his] mind"
when he spoke with investigators, which the friend denied.
Defense counsel culminated this line of cross-examination by
9 asking the friend if the police raised the subject of the open
case during their first interview. The judge sustained the
Commonwealth's objection. The judge explained that the question
was "completely unnecessary for probative value, and it's
prejudicial to the Commonwealth, and I think the line is drawn
there, and it's a fair line." The defendant claims error in the
judge's limitation of cross-examination on the issue of bias.
The Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights give a
defendant the right to cross-examine prosecution witnesses on
the issue of bias or prejudice. Commonwealth v. Avalos, 454
Mass. 1, 6-7 (2009). See Davis v. Alaska, 415 U.S. 308, 316-317
(1974). This right, however, is not absolute. Commonwealth v.
Barnes, 399 Mass. 385, 393 (1987). A judge has broad discretion
to admit evidence of bias and "may limit and 'control the scope
of cross-examination . . . once the jury have been "adequately
exposed" to the issue.'" Commonwealth v. Mountry, 463 Mass. 80,
86 (2012), quoting Commonwealth v. Joyce, 382 Mass. 222, 231
(1981). What the judge may not do is "bar all inquiry into the
subject" of bias. Avalos, 454 Mass. at 7, quoting Commonwealth
v. Allison, 434 Mass. 670, 681 (2001).
The judge acted within her discretion because she did not
foreclose inquiry into the issue of bias. To the contrary, she
allowed the defendant to cross-examine the friend about his open
10 case; namely, that the open case was for assault with a deadly
weapon, that it was open when he spoke with investigators, and
that the Boston Police Department investigated both cases. Once
the jury had been "adequately exposed to the issue," Mountry,
463 Mass. at 86 (quotation omitted), the judge stepped in. The
judge did not allow inquiry into the facts of the open case,
which, as the prosecutor argued at side bar, bordered on
propensity evidence.3 Nor did the judge allow the defendant to
ask the friend whether the open case was discussed during his
initial interviews with Boston police detectives. The jurors
could already infer that the friend had an incentive to testify
against the defendant to garner favorable treatment on his open
case. The judge was within her discretion to draw a line on the
permissible scope of cross-examination. Compare Commonwealth v.
Taylor, 455 Mass. 372, 378-381 (2009) (defendant impeached
witness for bias by highlighting witness's favorable plea
agreement and relationship with a codefendant; judge then
limited inquiry into defendant's refusal to testify at
codefendant's trial). We cannot conclude that the judge's
decision to limit cross-examination was "outside the range of
3 Although the prosecutor's references to propensity evidence at side bar came after the defendant's question about whether the police raised the subject of the open case, the prosecutor was more likely referring to the facts of the open case as potential propensity evidence.
11 reasonable alternatives," L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014), because the witness had already been impeached
for bias.
3. Admission of the folding knife. At trial, the
defendant objected to the admission of the folding knife that
detectives found on him when the defendant was brought in for
questioning. We review the judge's evidentiary ruling for abuse
of discretion. Commonwealth v. Ashman, 430 Mass. 736, 744
(2000).
Prior to trial, the defendant filed a motion in limine to
exclude evidence that the defendant possessed the folding knife
when he was arrested seven weeks after the crime. The
Commonwealth argued that the folding knife was admissible
because it could have been used to commit the crime. The
medical examiner testified that the type of knife used to kill
the victim could not be determined. The judge deferred her
ruling on the question whether the knife was admissible but
noted that "we have multiple people and multiple [knives] . . .
if we're going to be fair to the jury, to give them the full
picture, I don't see why we'd be leaving out this one [knife]."
The judge ultimately ruled that the folding knife was admissible
only for the limited issue of whether "the Defendant had access
to and knowledge of a weapon that could have been used in the
commission of the crime charged."
12 The Supreme Judicial Court's decision in Commonwealth v.
Colton, 477 Mass. 1 (2017), is instructive. In that case, the
defendant stabbed and killed the victim and threw the knife into
the Charles River. Id. at 4, 7. State Police divers retrieved
the knife from the riverbed, but having been underwater, the
knife was washed clean of fingerprints. Id. at 7 & n.7. Police
also recovered several knives from the defendant's personal
collection, which were admitted at trial. Id. at 4, 13. The
medical examiner testified that the type of knife used to kill
the victim could not be determined. Id. at 13. The
Commonwealth's theory at trial was that the Charles River knife
was the murder weapon, bolstered by the defendant's admission
that he threw the murder weapon in the river. Id. at 4, 7, 13.
Since the knife had no fingerprints, however, it could not be
conclusively proven that it was used to commit the murder. The
judge ruled that the knives from the defendant's collection were
admissible "as the means by which the defendant might have
stabbed the victim." Id. at 13.
Similarly, here, as the Commonwealth asserts, even though
it could not be conclusively determined which knife was the
murder weapon, the folding knife was properly admitted to show
13 that the defendant had the means to commit the crime. Ashman,
430 Mass. at 744.4
4. Jury consultant. The defendant argues that the judge
abused her discretion by denying the defendant's motion for
funds to hire a jury consultant (or expert) to assist in jury
selection. This argument is unavailing because although the
judge initially denied the defendant's motion for funds, she
subsequently allowed it and, in fact, the defendant had the
benefit of a jury consultant.
Next, the defendant argues that he was deprived of a fair
trial because the jury expert was not permitted to consult with
the defendant in the courtroom. The defendant was permitted to
consult with his expert outside of the courtroom only. The
defendant's primary contention is that by excluding the jury
consultant from the courtroom, the judge effectively closed the
4 At oral argument, the defendant argued that the knives in Colton were admissible merely to prove premeditation. We do not read Colton so narrowly. The court in Colton explained that "the knives properly were admitted not as bad act propensity evidence as the means by which the defendant might have stabbed the victim." Colton, 477 Mass. at 13. See Ashman, 430 Mass. at 744 ("Evidence that a defendant possessed a weapon that could have been used to commit a crime is relevant to prove that the defendant had the means of committing the crime"); Commonwealth v. James, 424 Mass. 770, 779-780 (1997) (holding that knives from defendants' homes admissible to show defendants had means of committing crimes). The court was clear that the knives in Colton were admissible as the possible murder weapons, not only to prove the defendant's mental state.
14 courtroom, which amounts to structural error requiring reversal.
This argument too falls short.
The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to a public jury trial.
Waller v. Georgia, 467 U.S. 39, 46 (1984); Commonwealth v.
Cohen, 456 Mass. 94, 106 (2010). The right to a public trial
extends to jury empanelment. Cohen, supra, citing Presley v.
Georgia, 558 U.S. 209 (2010). A partial closure of the
courtroom may amount to structural error when there is not a
"substantial reason" for the closure. Cohen, supra at 111
(quotation omitted). A violation of a defendant's Sixth
Amendment right can amount to structural error requiring
reversal. Commonwealth v. Alebord, 467 Mass. 106, 112, cert.
denied, 573 U.S. 921 (2014). The defendant alleges that the
partial closure of the courtroom constitutes structural error
that requires reversal.
We need not belabor this point because there is no evidence
in the record that the courtroom was closed or partially closed.
When the judge allowed the defendant's motion for funds to hire
a jury consultant, she ruled that the motion was allowed "for
the limited purpose of providing counsel sought by the trial
lawyer outside the courtroom." The judge merely limited where
the jury consultant could consult with trial counsel. See
Commonwealth v. Heywood, 484 Mass. 43, 45 (2020) (affording
15 trial judge broad discretion in jury selection process). There
was no error or abuse of discretion.
Judgment affirmed.
By the Court (Vuono, Singh & Hershfang, JJ.5),
Clerk
Entered: April 4, 2025.
5 The panelists are listed in order of seniority.