Commonwealth v. Jurczuk

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24-P-896 Appeals Court

COMMONWEALTH vs. LESLEY JURCZUK.

No. 24-P-896.

Suffolk. September 4, 2025. - January 2, 2026. Present: Sacks, Smyth, & Wood, JJ.

Homicide. Practice, Criminal, Assistance of counsel, Affidavit, New trial, Motion for reconsideration. Constitutional Law, Assistance of counsel. Evidence, Expert opinion, Accident, Medical record, Hospital record. Witness, Expert. Indictment found and returned in the Superior Court Department on March 5, 2013.

A motion to revoke and revoke sentence, filed on November 15, 2018, was considered by Christine M. Roach, J., and a motion for reconsideration was also considered by her; a motion for a new trial, filed on January 29, 2021, was heard by Robert L. Ullmann, J., a motion for reconsideration was also heard by him, and a second motion for reconsideration was considered by him. Merritt Schnipper for the defendant.

Erin Knight, Assistant District Attorney, for the Commonwealth.

WOOD, J. On December 2, 2012, the defendant, Lesley Jurczuk, got into a fight with his cell mate Alexander Callahan

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(decedent) at the Suffolk County house of correction, after which Callahan died. A grand jury indicted the defendant for murder in the second degree. After a trial in the Superior Court, a jury convicted the defendant of voluntary manslaughter. A panel of this court affirmed the conviction in an unpublished memorandum and order. See Commonwealth v. Jurczuk, 93 Mass. App. Ct. 1114 (2018).¹

In 2021, the defendant filed a new trial motion, claiming that his trial attorneys (trial counsel) were ineffective for failing to call forensic pathologist Elizabeth Laposata (Dr. Laposata), whom the defendant had retained prior to trial, to challenge the Commonwealth's theory that the defendant caused the decedent's death, after promising the jury they would do so. Because the trial judge had retired, the motion was considered by a different judge (motion judge), who denied it.²The

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defendant filed a timely notice of appeal, which was stayed so that he could litigate a motion for reconsideration. Represented by postconviction counsel (prior counsel), the defendant moved for reconsideration of the denial of his new trial motion and requested an evidentiary hearing. Prior counsel did not provide affidavits from either Dr. Laposata or trial counsel. The motion judge denied the motion for reconsideration and, accordingly, the motion for an evidentiary hearing. The defendant again filed a timely notice of appeal. Represented by new counsel (current counsel), the defendant then asked this court for leave to file in the trial court, and for that court to consider, an affidavit from Dr. Laposata. We granted that request. The defendant then filed a supplement to his motion to reconsider,³supported by Dr. Laposata's affidavit, which opined that the decedent's cause of death was a fall during the fight with the defendant, rather than an assault by the defendant as the Commonwealth alleged. Dr. Laposata explained that she appeared at the defendant's trial prepared to without the assistance of counsel. We will accept the motion judge's characterization.

³One of the orders from which the defendant appeals separately denied the defendant's supplement to his motion to reconsider and his renewed motion to reconsider. For ease of reference, this opinion refers to the combined supplement and renewed motion to reconsider as the defendant's second motion to reconsider.

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testify to that effect, but trial counsel informed her that her testimony was not required. The motion judge, however, declined to consider Dr. Laposata's affidavit or reconsider his prior rulings and denied the second motion to reconsider. The defendant again filed a timely notice of appeal. This court consolidated all of the defendant's pending appeals. Because Dr. Laposata's affidavit raised a substantial issue whether trial counsel's decision not to call her as a witness was manifestly unreasonable, we vacate the denial of the second motion to reconsider the defendant's new trial motion and remand the case for an evidentiary hearing.

As we explain below, this case illustrates that the absence of an affidavit from trial counsel does not, "by itself, defeat[] a claim of ineffective assistance of counsel,"

Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014), where the record demonstrates "inconsistencies that merit a closer look," Commonwealth v. Velez, 479 Mass. 506, 514 (2018), S.C., 487 Mass. 533 (2021). See Martinez, supra (listing scenarios where prior counsel may be reluctant to cooperate with ineffective assistance allegations). Dr. Laposata's affidavit appears helpful to the defense and is inconsistent with the motion judge's rationale for denying an evidentiary hearing, warranting a closer look at trial counsel's strategic decision not to call her as a witness.

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Background. 1. Trial. We summarize the facts the jury could have found, reserving certain details for later discussion. The defendant was charged with murder in the second degree on the theory that he beat the decedent to death in a cell the two men shared at the Suffolk County house of correction. The defendant asserted that he acted in self- defense to repel an attack by the decedent and their other cellmate, Shaquille Manago, and that the decedent died accidentally when he fell and struck a hard surface in their cramped cell during the fight.

a. Opening statements. In his opening statement, the prosecutor told jurors that the decedent "was killed with the bare hands of the defendant." Specifically, the prosecutor claimed that the defendant inflicted a fatal injury to the decedent's neck.

The defense's opening argument attacked the Commonwealth's cause of death analysis as "inaccurate . . . [and] incomplete."

The defense promised jurors that Dr. Laposata, a former chief medical examiner for the State of Rhode Island, would testify that the decedent "didn't suffer . . . classic defensive wounds," that there were "a number of ways" that the decedent could have incurred the fatal neck injury, and that there would be no evidence that the defendant inflicted the injuries that caused the decedent's death.

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b. Evidence from the house of correction. On December 2, 2012, the defendant, the decedent, and Manago shared a cell in the house of correction. Their cell contained a wooden table located immediately to the left of its entryway. At 4:57 P.M., the defendant approached a correction officer and reported that

"there's some guy on the floor in my cell." Correction officers responded and found the decedent unresponsive on the cell floor. Within minutes, Suffolk County sheriff's department staff, including the sheriff's emergency response team and medical personnel, responded to the cell and began cardiopulmonary resuscitation on the decedent. He did not have a pulse. He was bleeding from his mouth, nose, and ears, and there was blood on the floor behind his head. There was also blood splatter low on the concrete wall of the cell and a small amount of blood on a plastic chair.

Because the cell was small, first responders removed the table from the cell before rendering aid, and police did not examine it as part of their investigation.

The decedent sustained extensive trauma to his face including cuts on his mouth and eye. His face, jaw, and neck were bruised, swollen, and distorted.

The decedent was in his twenties at the time of this incident, while the defendant was in his early fifties. The

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decedent had "a smaller build" while the defendant was "bigger,"

exercised frequently, and "was much larger than most inmates."

The defendant had relatively minor injuries consistent with having been in a fight: there were fresh, small cuts and scrapes on his knuckles and fingers. The knuckles of his right hand were swollen and red. He also had scratches and gouges on his chest, and bruising and swelling around his ribs, but no injuries to his face or head.

Security video footage showed that between 4:31 P.M. and 4:42 P.M. only the decedent and the defendant were inside their cell. Manago described leaving the cell to wash out a container and returning to find the door closed and locked, with the lights off. Manago said he looked through a window in the door and saw the defendant and the decedent on opposite sides of the cell, saying "stay the fuck away from me" to each other. He left and returned, and the men were still standing and arguing. Security video footage showed that at 4:43 P.M., Manago opened the cell door and observed the decedent lying on the ground; he appeared to be unconscious. According to Manago, the defendant grabbed the decedent by his left arm and tried to pull him up. He then said to Manago, "Help me get him up." Manago refused. Six seconds after entering the cell, Manago backed out of the cell and went to the dining area. Security video footage showed the defendant leaving the cell shortly thereafter,

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entering a bathroom, and returning to the cell before alerting correction officers at 4:57 P.M.

c. Medical examiner testimony. A medical examiner performed an autopsy on the decedent the next day. He described

"dramatic" blunt force injuries to the visible areas of the decedent's face and head that were "not[] inconsistent" with having been struck by either a fist or a hard floor "more than once." The decedent had multiple subgaleal hemorrhages (bleeding between his scalp and skull), and a single subdural hemorrhage —- "an indicator of significant head injury" —- within his brain. The medical examiner testified that "any brain injury is potential[ly] fatal." His autopsy showed that the decedent's subdural hemorrhage produced only five milliliters of blood, a fraction of the seventy-five milliliters that create lethal internal pressure.

The medical examiner did not see "any external injuries" on the decedent's neck. Internally, the decedent's neck showed fractures of his thyroid cartilage and hyoid bone, injuries that

"could potentially be fatal" and which the medical examiner believed were caused by blunt force trauma equivalent to events like "car accidents, things where there's a lot of energy . . . applied to the neck." The medical examiner said these injuries were "not[] inconsistent" with having been caused by fist or knee strikes.

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The medical examiner opined that the cause of the decedent's death was "[b]lunt injuries of the head and neck"; rejected the idea "it was the fractured larynx [i.e., thyroid cartilage] that caused his death independently"; and said "they both contributed to it. I don't think you can separate one from the other." The medical examiner could not exclude impacts from contact with the cell's concrete walls or floor or metal bunks, as opposed to blows from fists or knees, as the cause of the decedent's injuries. As to the decedent's neck injuries, the medical examiner testified that it "may be possible" that if two grown men of the defendant's and decedent's sizes fell to the floor, they could generate enough force to cause the damage to the decedent's thyroid cartilage and hyoid bone. Finally, the medical examiner opined that restricted airflow from the type of neck injuries the decedent suffered would cause irreversible brain damage within five minutes, but in the interim a person could get up and move around.

d. The defendant's testimony. The defendant testified that the decedent and Manago confronted him in their cell after making comments about the defendant's body odor. The decedent and Manago grabbed him by the head and slammed him into the cement block wall. When the defendant moved toward the door, Manago grabbed him, and the decedent began to hit him with a chair. Next, the decedent charged him "like a football player"

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and they both fell to the floor. The decedent's face struck the floor. As they grappled, Manago kicked the defendant. Manago then left the cell. The defendant and the decedent both got up; the defendant sat on his bunk and the decedent sat on the table. At this point, the defendant claimed "everything seemed like it was fine" but then the decedent

"stands up, and he says, you mother fucker, I'm going to get you, and he turns around, and he shuts the light off, and he charges me, and then I grabbed him really hard, and then he lifts me off the floor, and then we both slam on the ground, and we both get up fast. And it was kind of like over."

At that point, Manago opened the cell door and the defendant left the cell. The defendant left the cell shortly after Manago. At that time, the decedent was "sitting in the chair. . . . [a]t the table." The defendant went to the bathroom and used an extra shirt to stop the bleeding on his face. When the defendant returned after dinner, he found the decedent unresponsive on the cell floor and immediately alerted correction officers.

e. Closing arguments. During closing argument, the defendant's trial counsel reminded jurors that the Commonwealth had to prove "this was not self-defense, that this was not an accident" and that the defendant's intentional acts "caused [the decedent's] death." Trial counsel argued that autopsy evidence showed there was not enough blood in the decedent's brain for a

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subdural hemorrhage to have caused his death, and "[h]e died from a fractured larynx in connection with a fracture[d] hyoid bone. Blunt force impact to his neck . . . [a] [h]igh velocity impact [like those] seen in car accidents." The only way such force could have been generated in such a small space, trial counsel argued, was if two grown men had fallen to the floor while grappling.

The prosecutor disputed that theory as to cause of death. The prosecutor argued that the defendant was fueled by "rage and anger" and killed the decedent with "multiple blows to the right side, to the left side, to the face, to the neck." Displaying a photograph of the decedent's body, the prosecutor disputed the defense argument that the fatal injury could have been caused by a fall or any accident: "[t]his isn't a fall. Are you kidding? . . . That isn't a picture of an accident, of a fall. That's a picture of intent to kill . . . [or] inflict grievous bodily injury." The prosecutor returned to this theme later:

"[t]his isn't an accident. This is deliberate conduct that took a man's life. . . . [I]t certainly isn't some accidental fall with [the defendant] in the cell, that convenient little fall. It [didn't cause] four separate subgaleal hemorrhages to [the decedent's] head. . . . [H]ow can we forget that injury that [the defendant's trial counsel] just conveniently glosses over, that injury to the neck, the tracheal cartilage hemorrhage. . . . That's a whole separate injury than all of the others. And [the defense] wants you to believe that came from a fall?

Seriously? A fall? That injury."

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f. Jury instructions. The trial judge instructed the jury that "in order to find the defendant guilty of any criminal charge in this case[,] the Commonwealth must prove beyond a reasonable doubt that [the decedent's] death was caused by an assault and battery by the defendant, not in proper self- defense, and that the death was not caused by accident."

g. Verdict. The jury convicted the defendant of voluntary manslaughter.

2. Postconviction proceedings. a. New trial motion. The defendant's new trial motion alleged several grounds for ineffective assistance of trial counsel, including (a) trial counsel's failure to call Dr. Laposata after promising jurors they would hear from her; (b) failing to introduce medical records establishing that the defendant had a preexisting rotator cuff injury; and (c) failing to introduce medical records showing the extent of the defendant's injuries in the fight. The motion judge denied this motion without holding an evidentiary hearing, in part because the defendant offered "no affidavits or other evidentiary support."

b. Prior counsel's motion for reconsideration. Prior counsel moved for reconsideration, asserting that the motion judge had abused his discretion in denying the defendant's new trial motion because it had raised substantial issues indicating

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that justice had not been done. The motion to reconsider also requested an evidentiary hearing.

Prior counsel did not proffer an affidavit from Dr. Laposata or trial counsel. Instead, prior counsel submitted his own affidavit, summarizing information from Dr. Laposata's assistant that Dr. Laposata "met with trial counsel [before trial] to help counsel understand the forensic pathology of the case and discussed her findings and opinions as to the cause of the decedent's death." She "review[ed] her testimony with trial counsel" outside the court room but was "informed . . . she was not needed." Prior counsel stated his "belief" that Dr. Laposata would have testified that the decedent's injuries "were consistent with his head hitting a hard surface or object, such as the concrete floor of the cell or a bed frame or platform."

Prior counsel stated that he had discussed the defendant's claims with trial counsel but that trial counsel had "declined to offer an affidavit attesting to . . . ineffective representation of the defendant."⁴Prior counsel's

"understanding" was that trial counsel did not call Dr. Laposata because trial counsel erroneously believed that investigators

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did not find blood on the cell floor or on the bed frame or platform.⁵Therefore, prior counsel believed that trial counsel

"concluded that Dr. Laposata could not state that the decedent's injuries were consistent with his head hitting the cell floor or bed." Prior counsel explained that "[t]rial counsel's conclusion was incorrect, as there were photographs introduced in evidence and testimony that [both parties'] blood was found on the floor and a wall of the cell."

In his order denying prior counsel's motion for reconsideration, the motion judge concluded that the Commonwealth had presented "overwhelming evidence that [the defendant] had fatally beaten [the decedent], either intentionally or by using excessive force in self-defense."

Without the benefit of any firsthand information from Dr. Laposata or trial counsel, the motion judge concluded that counsel's "decision not to call Dr. Laposata as a witness was clearly tactical, as trial counsel spoke to her immediately before deciding not to call her," and this "decision was not remotely manifestly unreasonable." The motion judge also concluded that "[Dr.] Laposata's proposed testimony was not the

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linchpin of a defense of self-defense. At most, her testimony might have called into question the extent of certain injuries to [the decedent]" and "would not have addressed the obvious flaw in [the defendant's] defense that, even if [the defendant] established a need to defend himself, the Commonwealth could readily prove that [the defendant] used more force than was reasonably necessary" to do so.

c. Dr. Laposata's affidavit. While the defendant's appeal from the denial of his new trial motion was pending, current counsel replaced prior counsel, and we granted his request "to file and the trial court . . . leave to consider a motion regarding the affidavit from [Dr. Laposata]." Pursuant to our order, current counsel then filed a motion to supplement prior counsel's motion to reconsider, supported by Dr. Laposata's affidavit, in the Superior Court.⁶Broadly, Dr. Laposata opined that the cause of the decedent's death was asphyxia caused by torn neck muscles he sustained when he fell onto the table in

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the midst of the fight with the defendant, rather than from blows inflicted by the defendant.

Dr. Laposata explained that trial counsel retained her ahead of the defendant's 2014 trial to develop an opinion and testify about the cause of the decedent's injuries and his death. Dr. Laposata developed an opinion and appeared at the Superior Court in Suffolk County on November 13, 2014, prepared to testify. She met with trial counsel, who told her that her testimony was not required. Had she been called, she would have provided the following opinion.

First, Dr. Laposata disputed the medical examiner's conclusion that the cause of death was the combined effect of blunt force trauma to the decedent's head and injuries to his neck, and that the causal effect of those injuries could not be separated. Dr. Laposata "believe[d] thyroid cartilage trauma and asphyxiation alone, not blunt force trauma to the head, caused [the decedent's] death."

Second, Dr. Laposata opined that this fatal trauma was not caused by punches, kicks, or an impact with the cell's concrete floor. "Rather, it was caused by [the decedent's] striking his chin on the table just to the left of the cell door, followed by impact to the front of his neck caused by this strike, when he and [the defendant] fell to the floor the second time . . . ."

Dr. Laposata noted that "[p]hotographs of [the decedent's] body

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taken shortly after he died show a large, roughly circular bruise on the underside of his chin, with abrasions continuing onto the front of his chin on his face." Dr. Laposata asserted that "[t]he blood pattern evidence on the floor where [the decedent's] body was found between the table and single wall- bunk" supported an inference that after the fall, he was unconscious and had a collapsed airway.

Dr. Laposata offered an opinion about "the most logical sequence of events producing [the decedent's] visible and internal injuries":

"During the first round of fighting, [the decedent] likely suffered his visible and serious but non-fatal head and face injuries, which may have left him dazed, concussed, and even semi-conscious. During the second round of fighting, when [the decedent] and [the defendant] were falling to the cell floor [the decedent] sustained the neck injury that ultimately killed him. This sequence of events, and particularly the fact that [the decedent] was already dazed and semi-conscious when he suffered his fatal injury, would explain his lack of immediate reaction to such a severe injury."

Discussion. As noted above, the defendant alleges that trial counsel provided ineffective assistance by failing to call Dr. Laposata to support the defense theory that the decedent's cause of death was an accident, despite having promised to call her during opening statements. Because the defendant submitted an affidavit from Dr. Laposata that raises significant questions about the reasonableness of trial counsel's decision, we vacate the denial of the new trial motion and second motion to

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reconsider the defendant's new trial motion and remand the case for an evidentiary hearing on the defendant's claim of ineffective assistance.

1. Standard of review. "As a general matter, we review a judge's denial of a defendant's motion for a new trial to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Caldwell, 487 Mass. 370, 374 (2021). "[W]e review independently findings made by the motion judge based entirely on documentary evidence." Id. See Commonwealth v. Gaines, 494 Mass. 525, 536 (2024) ("Because the motion judge was not the trial judge, . . . we consider ourselves in as good a position as the motion judge to assess the trial record" [quotation and citation omitted]). "Further, we make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found" (quotations and citation omitted). Caldwell, supra.

2. Ineffective assistance of counsel. a. The standard. The defendant claims that his representation at trial was not constitutionally adequate. Our inquiry with respect to claims of ineffective assistance of counsel is "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is

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found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defen[s]e." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

"When a defendant alleges that his attorney committed a strategic error, . . . we consider whether trial counsel's tactical choice was manifestly unreasonable at the time the choice was made." Velez, 479 Mass. at 512. "A strategy is manifestly unreasonable if lawyers of ordinary training and skill in the criminal law would [not] consider [it] competent"

(quotation and citation omitted). Id. Where trial counsel's tactic was manifestly unreasonable, counsel's representation was ineffective if it created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 295-296

(2002).

The defendant also asserts that he should have been granted an evidentiary hearing to determine whether he received ineffective assistance at trial. Rule 30 (c) (3) of the Massachusetts Rules of Criminal Procedure, as appearing in 435 Mass. 1501 (2001), provides that a judge presented with a new trial motion may "rule on the issue or issues presented by such motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits."

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"To determine whether a 'substantial issue' has been raised, we consider the seriousness of the deficiency asserted and the adequacy of the defendant's showing" (citation omitted). Velez, 479 Mass. at 514. "A credible claim of ineffective assistance of counsel is serious and, when a sufficient showing is made, may merit an evidentiary hearing." Id. "Turning next to the adequacy of the showing, the defendant's submissions need not prove the [motion's] factual premise . . . but they must contain sufficient credible information to cast doubt on the issue" (quotations and citation omitted). Commonwealth v. Welch, 487 Mass. 425, 445 (2021). One relevant factor is whether "a hearing would have provided the judge with additional information relevant to the motion." Commonwealth v. DeVincent,

421 Mass. 64, 68 (1995). b. Dr. Laposata. The defendant argues that it was manifestly unreasonable not to call Dr. Laposata to challenge the Commonwealth's theory as to the decedent's cause of death. He notes that Dr. Laposata clearly disagreed with the Commonwealth's medical examiner that the extensive blunt force traumas to the decedent's head contributed to his death. She opined that "thyroid cartilage trauma and asphyxiation alone"

were the cause of death. More specifically, she asserted that photographs of a large, roughly circular bruise on the underside of the decedent's chin (which the Commonwealth's medical

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examiner had not mentioned in his trial testimony) and abrasions continuing onto the front of his chin "strongly suggest that the thyroid cartilage fracture that killed [the decedent] . . . was caused by [the decedent's] striking his chin on the table just to the left of the cell door, followed by impact to the front of his neck caused by this strike."

Moreover, Dr. Laposata offered support for a theory that the defendant did not cause this injury, but rather that it was the result of a fall. She opined that the decedent struck his chin and neck on the table "[d]uring the second round of fighting, when [the decedent] and [the defendant] were falling to the cell floor . . . ." Combined with the defendant's testimony that the decedent charged at him and picked him up, causing the fall, Dr. Laposata's opinion seems to support a defense that the cause of death was an accident rather than the defendant's excessive use of force in self-defense. Thus, although trial counsel's work resulted in a conviction of manslaughter rather than murder, had counsel offered Dr. Laposata's testimony, the jury might have credited it and returned a not guilty verdict.

The motion judge initially denied prior counsel's motion for reconsideration of the defendant's new trial motion because prior counsel did not provide an affidavit from Dr. Laposata. Later, when current counsel presented Dr. Laposata's affidavit

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to supplement the motion to reconsider, the motion judge refused to consider it because he found that it did not constitute newly discovered evidence and therefore did not satisfy any of the requirements for a motion to reconsider. In fact, a judge may also entertain a motion to reconsider if it is based on "a particular and demonstrable error in the original ruling or decision" (citation omitted). Commonwealth v. Demirtshyan, 87 Mass. App. Ct. 737, 741 n.8 (2015). The defendant satisfied that standard.

Dr. Laposata's affidavit, documenting how she would have testified as to the cause of death, strongly suggested that the motion judge made several errors in denying the new trial motion. First, in explaining his decision, the motion judge found that the evidence overwhelmingly proved that the death was caused by the beating inflicted by the defendant. Considered in light of Dr. Laposata's affidavit, the medical evidence on the cause of death was no longer one-sided, let alone overwhelming. Second, the motion judge found that Dr. Laposata's opinion was not the linchpin of the defense and would not have addressed the

"obvious flaw" that the defendant used excessive force in self- defense. In fact, Dr. Laposata's affidavit raised substantial questions about the decision not to call her as a witness in light of her powerful, contradictory opinion that the defendant's assault did not cause the decedent's death. Third,

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the motion judge found that trial counsel's decision not to call Dr. Laposata was "not remotely manifestly unreasonable." In fact, Dr. Laposata established that the only proffered basis for not calling her -- trial counsel's purported belief that the forensic evidence contradicted her opinion -- was wrong; the blood pattern evidence on the floor was consistent with her opinion. In short, Dr. Laposata's affidavit was at least powerful evidence that the motion judge's denial of the defendant's new trial motion was based on "particular and demonstrable error" (citation omitted). Demirtshyan, 87 Mass. App. Ct. at 741 n.8.

We do not fault the motion judge for denying the first motion to reconsider, given that prior counsel did not provide an affidavit from Dr. Laposata. The only indication about how she would have testified was trial counsel's assertion in his opening statement. Nevertheless, when current counsel provided Dr. Laposata's affidavit, establishing that the motion judge's decision had been based on "particular and demonstrable error,"

the motion judge should have considered it to determine whether the defendant had raised a substantial issue warranting an evidentiary hearing and ultimately whether "justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.

1501 (2001).

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The dispositive question is whether trial counsel's decision not to call Dr. Laposata was manifestly unreasonable, in light of the facts that (1) she would have offered an opinion helpful to the defense and (2) trial counsel had promised the jury, during opening statements, that Dr. Laposata would dispute the Commonwealth's theory as to the cause of death. To determine whether counsel's strategic decision not to call Dr. Laposata was manifestly unreasonable, "it is necessary to understand counsel's reasoning" at the time of the decision. Velez, 479 Mass. at 513. See Commonwealth v. Coonan, 428 Mass. 823, 827 (1999) (assessing if counsel's decisions were reasonable "when made" [citation omitted]). This task is complicated because the defendant did not submit an affidavit from either of his two trial attorneys.⁷Moreover, in his own affidavit, the defendant admits that he does not know why his trial counsel decided not to call Dr. Laposata. Faced with a claim of ineffective assistance of counsel, the motion judge is sometimes "entitled to draw a negative inference from the defendant's failure to secure an affidavit from trial . . . counsel." Martinez, 86 Mass. App. Ct. at 550. However, the absence of an affidavit from trial counsel does

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not, "by itself, defeat[] a claim of ineffective assistance of counsel," id. at 551, where the record demonstrates

"inconsistencies that merit a closer look," Velez, 479 Mass. at

514. See Martinez, supra (noting possible scenarios where prior counsel may be reluctant to cooperate with ineffective assistance allegations). See also Commonwealth v. Miller, 101 Mass. App. Ct. 344, 352 (2022) ("prior counsel . . . may refuse to provide an affidavit despite having favorable information to assist the former client," in which case, absence of affidavit will not defeat claim of ineffective assistance). This case is similar to Commonwealth v. Velez, where the defendant alleged, in a new trial motion, that trial counsel had provided ineffective assistance by failing to present a mental health or criminal responsibility defense. Velez, 479 Mass. at 506.⁸Prior to trial, trial counsel had filed a motion to suppress the defendant's statements to police in which he denied committing the crimes. Id. at 508-510. The motion to suppress

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was denied. Id. at 511. The new trial motion was supported by some evidence, but not an affidavit of trial counsel. Id. at

513. The Commonwealth argued that trial counsel's decision not to pursue a criminal responsibility defense was a reasonable tactical decision because it would have contradicted the defendant's statements to police denying that he committed the crimes. Id. at 512-513. The motion judge denied the defendant's request for an evidentiary hearing and his new trial motion. Id. at 514.

On review, the Supreme Judicial Court noted that appellate courts "ordinarily . . . defer to the discretion of a judge on whether a motion for a new trial requires an evidentiary hearing." Velez, 479 Mass. at 515. "Often, affidavits alone suffice to determine the necessity of an evidentiary hearing."

Id. at 514. The court noted that "this is not a case where it is apparent on the face of the record that counsel was ineffective." Id. But the Supreme Judicial Court did not treat the lack of an affidavit from trial counsel as "a talisman that, by itself, defeats a claim of ineffective assistance of counsel." Martinez, 86 Mass. App. Ct. at 551. After considering the affidavits that were submitted to the motion judge, in combination with preliminary hearing transcripts that were not originally in the record, which showed that trial counsel waived a criminal responsibility defense

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prior to learning whether the defendant's statements would be suppressed, Velez, 479 Mass. at 513 & n.7, the court

"perceive[d] inconsistencies [in counsel's strategic choices] that merit[ed] a closer look," Id. at 514.⁹Because the court could not "be certain" whether trial counsel had made "a sound strategic choice," the court vacated the denial of the new trial motion and remanded for an evidentiary hearing "in order to determine whether trial counsel's strategy was reasonable." Id. at 514-515. In support of its ruling, the court wrote,

"[w]ithout sufficient information about trial counsel's intentions and strategic choices, the motion judge could not determine whether it was manifestly unreasonable for trial counsel to forgo these defenses when he chose to do so"

(quotation and citation omitted). Id. at 515. Here, as in Velez, the motion judge did not receive any direct "information about trial counsel's intentions and strategic choices," 479 Mass. at 515, beyond Dr. Laposata's brief statement that she was "met outside the courtroom by one of [the defendant's] attorneys and told that [her] testimony was

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not required."¹⁰Nevertheless, here, as in Velez, we "perceive inconsistencies" between Dr. Laposata's opinion and the motion judge's rationale for denying an evidentiary hearing. Compare id. at 514 ("We have reviewed the defendant's mental health records, and we cannot say that . . . a [mental health] defense did not have potential support").

As in Velez and Martinez, an evidentiary hearing is necessary to determine whether trial counsel's decision to not call Dr. Laposata was manifestly unreasonable, particularly after the opening statement promising her testimony. Accordingly, we vacate so much of the order denying the defendant's motion for a new trial and the order denying the second motion to reconsider that were entered as to trial counsel's alleged ineffectiveness for failure to call Dr. Laposta, and remand this case to the Superior Court for an evidentiary hearing at which the defendant may present testimony from witnesses including trial counsel and Dr. Laposata. See Martinez, 86 Mass. App. Ct. at 552 ("The hearing will permit the judge . . . to hear from plea counsel . . . .").¹¹

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c. Trial counsel's decision not to introduce medical records. The defendant also alleges that his trial counsel provided ineffective assistance by failing to introduce his hospital records documenting his rotator cuff injury two months before the fight, and documenting injuries sustained during the fight. We agree with the motion judge, on this record, that counsel's decision not to introduce these hospital records does not warrant a new trial.¹²As the motion judge noted, the Commonwealth did not dispute that the defendant suffered injuries in the fight. The issue was whether he caused the decedent's death. Additional evidence of the defendant's injuries would not have materially affected the jury's resolution of that question. Likewise, the fact that the defendant had suffered a rotator cuff injury at least two months related argument that counsel was ineffective in promising, during the defense's opening statement, to call Dr. Laposata and then failing to do so. Such a broken promise could be grounds for a finding of ineffective assistance. See Commonwealth v. Duran, 435 Mass. 97, 109 (2001). But the reasonableness of trial counsel's decision "will depend on such factors as the nature and extent of the promise made in the opening statement, any strategic justifications for the subsequent decision not to produce the evidence, and the likely impact on the jury of the failure to produce the promised evidence." Id. at 110. We expect the evidentiary hearing will shed light on these issues.

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earlier would not have been material where the evidence demonstrated that the defendant clearly inflicted a severe beating on the decedent, including multiple subgaleal hemorrhages, between his scalp and skull, and a single subdural hemorrhage -— "an indicator of significant head injury" —- within his brain.

Conclusion. The orders dated December 10, 2018, and January 4, 2019, denying the defendant's motion to revise and revoke and the related motion to reconsider, are affirmed. So much of the May 18, 2021 order denying the motion for a new trial and the July 17, 2024 order denying the second motion to reconsider based on the failure to call Dr. Laposata, are vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion. Those orders are otherwise affirmed.

So ordered.