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-199
COMMONWEALTH
vs.
WENBO LIU.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a District Court trial, a jury convicted the
defendant of three counts of indecent assault and battery,
rejecting his alibi defense. Thereafter, represented by new
counsel, the defendant moved for a new trial, asserting as
relevant here that trial counsel was ineffective in failing to
introduce expert evidence to counter a weakness in the alibi. A
judge other than the trial judge denied the motion, and the
defendant appealed. We conclude that, regardless of whether
trial counsel's performance was deficient, it did not cause the defendant sufficient prejudice to warrant a new trial. We
therefore affirm the order denying the motion. 1
Background. 1. Trial. The defendant was charged with
indecent assault and battery of a twenty year old woman who
rented a room in his home. The alleged unconsented touchings of
the victim's buttocks, breast, and vagina occurred during the
night of July 25-26, 2017; the victim estimated that they
occurred at 12:40 A.M. Because there was no physical evidence
of the offenses, the trial was largely a credibility contest.
The defendant offered an alibi defense, testifying that he was
on a lengthy FaceTime video call with his fiancé in California,
discussing their wedding plans, from about 11:50 P.M. until 2:20
A.M. His fiancé testified to the same effect. 2
Asked whether he could document the occurrence of the
FaceTime call, the defendant testified that he could not,
because after "30 day[s] or three months you won't be able to
find the history of your FaceTime records." Thus, he said,
because he had not learned of the charges against him until
November 2017, which was four months after the alleged assaults,
he was unable to retrieve a record of the call. His fiancé
The appeal was consolidated with the defendant's direct 1
appeal from his convictions, but the defendant makes no separate argument concerning the direct appeal, and therefore we affirm the judgments of conviction.
By the time of trial, the defendant and his fiancé had 2
married. For clarity we refer to her as his fiancé throughout.
2 likewise testified that she had looked for a record of their
FaceTime call that November but could not find any. On her
laptop computer, an Apple MacBook she had used for the call, she
found FaceTime records only for the preceding three months. 3
On cross-examination, the defendant testified that his
MacBook computer from which he had made the FaceTime call
retained a call log "for the past one month or something like
that," and that he had tried to retrieve the log but did not
succeed. He understood "from the Apple page" that the log
remained for only one month, and he maintained that the call log
disappeared "automatically" after thirty days, or at least by
the time he learned of the charges. This deletion was
accomplished, in his words, "not [by the] computer, it's the
system, the Apple system." He denied ever having intentionally
deleted any call logs.
In the Commonwealth's closing argument, the prosecutor
stated that there was no record of the FaceTime call -- only the
defendant's and his fiancé's testimony that it occurred -- and
suggested that the call never happened. The Commonwealth urged
3 We acknowledge the defense evidence, supported by records, that the defendant and his fiancé communicated through e-mail at 12:20 A.M., and through the WeChat messaging application between 11:31 and 11:35 P.M. and again between 12:45 and 12:50 A.M. The Commonwealth argued that this evidence nevertheless left "critical gaps" during which time the defendant could have committed the offenses. The occurrence of the FaceTime call was therefore critical to the alibi defense.
3 the jury not to believe the alibi defense and instead to believe
the victim. The jury returned verdicts of guilty on all three
charges.
2. Motion for new trial. In 2023, the defendant moved for
a new trial, alleging that trial counsel was ineffective in
failing to introduce expert evidence explaining why no records
of the July 2017 FaceTime call were available from Apple when
the defendant and his fiancé looked in November. The defendant
argued that such evidence would have shown "his failure to
present records was not evidence of fabrication but it was
simply unavoidable based on the nature of how FaceTime works."
In support of the motion, the defendant offered an affidavit
from a digital forensic analyst asserting that, in November
2017, Apple's policy with respect to law enforcement requests to
Apple for users' FaceTime records was in relevant part as
follows:
"Apple has FaceTime call invitation logs when a FaceTime call invitation is initiated. These logs do not indicate that any communication between users actually took place. FaceTime call invitation logs are retained up to 30 days. FaceTime call invitation logs, if available, may be obtained with an order under 18 U.S.C. § 2703(d) or court order with the equivalent legal standard or search warrant."
The affidavit further asserted that Apple maintained no records
of the duration of any such calls. The affidavit therefore
stated that FaceTime call invitation logs pertaining to calls
4 made in July 2017 would not have been available through Apple in
November 2017, nor would any records of the duration of such
calls have been available from Apple since no such records were
maintained. Finally, "in an effort to confirm these findings,"
the expert, using the defendant's credentials, logged into
Apple's server to search for backup files from the defendant's
device(s) that would reflect FaceTime calls and found that no
such files were available from the defendant's account.
A motion judge held an evidentiary hearing, at which the
expert testified consistently with his affidavit and stated that
he would have so testified if called as a witness at trial. 4 On
cross-examination, the expert agreed that his trial testimony
would have been limited to what records would have been
available in November 2017 from Apple. He agreed that he could
not have testified about whether there would have been records
of the July 2017 FaceTime call on the defendant's and his
fiancé's devices themselves, unless he had been "consulted back
then, as to the analysis of those devices," which he had not
been.
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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-199
COMMONWEALTH
vs.
WENBO LIU.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a District Court trial, a jury convicted the
defendant of three counts of indecent assault and battery,
rejecting his alibi defense. Thereafter, represented by new
counsel, the defendant moved for a new trial, asserting as
relevant here that trial counsel was ineffective in failing to
introduce expert evidence to counter a weakness in the alibi. A
judge other than the trial judge denied the motion, and the
defendant appealed. We conclude that, regardless of whether
trial counsel's performance was deficient, it did not cause the defendant sufficient prejudice to warrant a new trial. We
therefore affirm the order denying the motion. 1
Background. 1. Trial. The defendant was charged with
indecent assault and battery of a twenty year old woman who
rented a room in his home. The alleged unconsented touchings of
the victim's buttocks, breast, and vagina occurred during the
night of July 25-26, 2017; the victim estimated that they
occurred at 12:40 A.M. Because there was no physical evidence
of the offenses, the trial was largely a credibility contest.
The defendant offered an alibi defense, testifying that he was
on a lengthy FaceTime video call with his fiancé in California,
discussing their wedding plans, from about 11:50 P.M. until 2:20
A.M. His fiancé testified to the same effect. 2
Asked whether he could document the occurrence of the
FaceTime call, the defendant testified that he could not,
because after "30 day[s] or three months you won't be able to
find the history of your FaceTime records." Thus, he said,
because he had not learned of the charges against him until
November 2017, which was four months after the alleged assaults,
he was unable to retrieve a record of the call. His fiancé
The appeal was consolidated with the defendant's direct 1
appeal from his convictions, but the defendant makes no separate argument concerning the direct appeal, and therefore we affirm the judgments of conviction.
By the time of trial, the defendant and his fiancé had 2
married. For clarity we refer to her as his fiancé throughout.
2 likewise testified that she had looked for a record of their
FaceTime call that November but could not find any. On her
laptop computer, an Apple MacBook she had used for the call, she
found FaceTime records only for the preceding three months. 3
On cross-examination, the defendant testified that his
MacBook computer from which he had made the FaceTime call
retained a call log "for the past one month or something like
that," and that he had tried to retrieve the log but did not
succeed. He understood "from the Apple page" that the log
remained for only one month, and he maintained that the call log
disappeared "automatically" after thirty days, or at least by
the time he learned of the charges. This deletion was
accomplished, in his words, "not [by the] computer, it's the
system, the Apple system." He denied ever having intentionally
deleted any call logs.
In the Commonwealth's closing argument, the prosecutor
stated that there was no record of the FaceTime call -- only the
defendant's and his fiancé's testimony that it occurred -- and
suggested that the call never happened. The Commonwealth urged
3 We acknowledge the defense evidence, supported by records, that the defendant and his fiancé communicated through e-mail at 12:20 A.M., and through the WeChat messaging application between 11:31 and 11:35 P.M. and again between 12:45 and 12:50 A.M. The Commonwealth argued that this evidence nevertheless left "critical gaps" during which time the defendant could have committed the offenses. The occurrence of the FaceTime call was therefore critical to the alibi defense.
3 the jury not to believe the alibi defense and instead to believe
the victim. The jury returned verdicts of guilty on all three
charges.
2. Motion for new trial. In 2023, the defendant moved for
a new trial, alleging that trial counsel was ineffective in
failing to introduce expert evidence explaining why no records
of the July 2017 FaceTime call were available from Apple when
the defendant and his fiancé looked in November. The defendant
argued that such evidence would have shown "his failure to
present records was not evidence of fabrication but it was
simply unavoidable based on the nature of how FaceTime works."
In support of the motion, the defendant offered an affidavit
from a digital forensic analyst asserting that, in November
2017, Apple's policy with respect to law enforcement requests to
Apple for users' FaceTime records was in relevant part as
follows:
"Apple has FaceTime call invitation logs when a FaceTime call invitation is initiated. These logs do not indicate that any communication between users actually took place. FaceTime call invitation logs are retained up to 30 days. FaceTime call invitation logs, if available, may be obtained with an order under 18 U.S.C. § 2703(d) or court order with the equivalent legal standard or search warrant."
The affidavit further asserted that Apple maintained no records
of the duration of any such calls. The affidavit therefore
stated that FaceTime call invitation logs pertaining to calls
4 made in July 2017 would not have been available through Apple in
November 2017, nor would any records of the duration of such
calls have been available from Apple since no such records were
maintained. Finally, "in an effort to confirm these findings,"
the expert, using the defendant's credentials, logged into
Apple's server to search for backup files from the defendant's
device(s) that would reflect FaceTime calls and found that no
such files were available from the defendant's account.
A motion judge held an evidentiary hearing, at which the
expert testified consistently with his affidavit and stated that
he would have so testified if called as a witness at trial. 4 On
cross-examination, the expert agreed that his trial testimony
would have been limited to what records would have been
available in November 2017 from Apple. He agreed that he could
not have testified about whether there would have been records
of the July 2017 FaceTime call on the defendant's and his
fiancé's devices themselves, unless he had been "consulted back
then, as to the analysis of those devices," which he had not
been. The expert further agreed that his testimony "could
neither support nor negate whether or not a FaceTime call
actually occurred."
4 Trial counsel also testified, stating that the defense team had never considered obtaining an expert to testify regarding the unavailability of FaceTime call records from Apple, and that the failure to do so was not a strategic decision.
5 The judge denied the motion for a new trial, concluding as
relevant here that the expert evidence "would not have advanced
the alibi defense" but "would only have confirmed the absence of
evidence corroborating the alibi." Although such evidence "may
have blunted one aspect of the Commonwealth's cross-examination"
-- its suggestion that if a FaceTime call had occurred, there
would have been records -- it did not deprive the defendant of
an otherwise available ground of defense.
Discussion. On appeal of a ruling on a motion for a new
trial, we review for "a significant error of law or other abuse
of discretion." Commonwealth v. Grace, 397 Mass. 303, 307
(1986). Where the motion judge did not preside at trial, "we
regard ourselves in as good a position as the motion judge to
assess the trial record" (citation omitted). Commonwealth v.
Cameron, 473 Mass. 100, 104 (2015). To prevail on a claim of
ineffective assistance of counsel, a defendant must establish
that counsel's performance fell "measurably below that which
might be expected from an ordinary fallible lawyer" and "likely
deprived the defendant of an otherwise available, substantial
ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). The defendant must show that "better work might have
accomplished something material for the defense." Commonwealth
v. Satterfield, 373 Mass. 109, 115 (1977). Here, we pass over
6 the performance prong of the inquiry, because we conclude that
in any event the defendant has not shown sufficient prejudice.
The defendant asserts prejudice from trial counsel's
failure to offer evidence to counter what the defendant
characterizes as one of the two obvious weaknesses in the alibi
defense. First, there was no documentation of the FaceTime
call, allowing the Commonwealth to argue that the defendant's
and his fiancé's testimony about the call should not be believed
and that the call never occurred. Second, there was no
explanation for that lack of documentation, other than the
testimony of the defendant and his fiancé that they had looked
for documentation four months after the call occurred but were
unable to find any. The Commonwealth sought to discredit that
testimony in its cross-examination. Focusing on this second
weakness, the defendant argues that it was critical for an
expert to explain to the jury why there was no documentation,
"especially in this day and age when everybody expects that
everything in the world is documented, especially things that
happen online."
But this was not a failure to present the alibi defense,
nor even a failure to present evidence that tended to prove the
alibi defense. Rather, it was a failure to present evidence to
blunt one of two attacks on the defense. Explaining the lack of
any record of the call would not have shown that the call
7 occurred. At most it would have bolstered the credibility of
the defendant's and his fiancé's testimony about why no record
existed. The defendant cites no case where the failure to
present evidence shoring up a subsidiary aspect of a defense has
been held sufficiently prejudicial to support an ineffective
assistance claim. 5
Moreover, and critically, the expert's evidence would have
responded only to a small part of the Commonwealth's attack.
The expert could have supported the defendant's testimony about
why no record of the call would have been available from Apple
in November 2017. 6 But he could not have testified about whether
there would have been records of the July 2017 FaceTime call on
the defendant's and his fiancé's devices themselves.
5 The cases the defendant cites are easily distinguishable. See Commonwealth v. Diaz Perez, 484 Mass. 69, 71-75 (2020), abrogated on other grounds by Commonwealth v. Tavares, 491 Mass. 362, 365 (2023) (evidence placing defendant elsewhere when shooting occurred); Commonwealth v. LaBrie, 473 Mass. 754, 771- 773 (2016) (evidence that defendant's conduct reflected something other than intent to kill); Commonwealth v. Farley, 432 Mass. 153, 156-157 (2000), S.C., 443 Mass. 740, cert. denied, 546 U.S. 1035 (2005) (evidence supporting third-party culprit defense); Commonwealth v. Roberio, 428 Mass. 278, 279- 280 (1998), S.C., 440 Mass. 245 (2003) (failure to investigate defense of lack of criminal responsibility).
6 Even if such records had been available, the expert agreed that they would have shown only whether a user had initiated a FaceTime call invitation -- not whether it had been accepted, or, if so, how long the resulting call lasted. Thus, the expert agreed that his testimony "could neither support nor negate whether or not a FaceTime call actually occurred."
8 Yet that was the Commonwealth's main point regarding call
records: that the defendant failed to explain why, if the
FaceTime call occurred, there was no log on his or his fiancé's
MacBook computers showing the call. The Commonwealth's focus
was not on challenging the defendant's testimony about why he
could not obtain records from Apple. Instead, the Commonwealth
cross-examined the defendant about the existence of a log of the
call "[o]n the computer itself," in "[t]he actual windowpane
where the logs are displayed." The defendant answered that
although he had checked the log, it automatically disappeared
after thirty days, but he also expressed some uncertainty about
that issue, 7 and he insisted that automatic deletion was
accomplished "not [by the] computer, it's the system, [the]
Apple system." He was likewise uncertain about whether the
source of his information that no log of the call existed was
what he saw on his computer or instead "the Apple page." The
Commonwealth repeatedly asked whether the defendant had ever
deleted any such call log from his device, which the defendant
denied doing, at least intentionally.
The expert's testimony would not have addressed this issue.
He could not opine on whether there would have been records of
7 "Q.: So you don't know if these automatically delete then, do you?
"A.: No, I -- I didn't find them."
9 the July 2017 FaceTime call on the defendant's and his fiancé's
devices themselves, because he had not been "consulted back then
[i.e., prior to trial], as to the analysis of those devices."
Even if he had testified, we see nothing in the Commonwealth's
closing argument that the Commonwealth could not have argued
with equal force notwithstanding that testimony.
In short, the absence of the expert testimony did not
"deprive[] the defendant of an otherwise available, substantial
ground of defence." Saferian, 366 Mass. at 96. Nor are we
persuaded that offering that testimony "might have accomplished
something material for the defense." Satterfield, 373 Mass. at
10 115. The judge therefore did not err or otherwise abuse her
discretion in denying the motion for a new trial.
Judgments affirmed.
Order denying motion for a new trial affirmed.
By the Court (Sacks, Shin & Hershfang, JJ. 8),
Clerk
Entered: December 16, 2024.
8 The panelists are listed in order of seniority.