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, theref ore, 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

22

- P

- 68 3

COMMONWEALTH

vs

.

JOSE BALCACER

.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his second motion

for a new trial , and a related motion for postconviction

discovery , with respect to his 2015 conviction s for drug

trafficking

. He presses several arguments for why a new trial

is warranted, but primarily contends that (1) newly discovered

evidence , which he claims the Commonwealth imp roperly withheld,

casts doubt on his conviction s , (2) the Commonwealth elicited

false testimony from a trial witness , and (3) the defendant's

previous attorneys rendered ineffective assistance at trial , and

on a prior appeal before this court. W e affirm.

Background

. The defendant was convicted of two counts of

heroin trafficking in May 2015

. In affirming the denial of the

defendant's first motion for a new trial, this court described2

the underlying facts as follows (quoting the decision of the

motion judge).

"The charges ar [o] se out of the planned controlled purchase of a half

- kilogram of her oin, the arrest of the [defendant] and co

- defendant Robert Navarro ('Navarro'), the seizure of heroin intended for the controlled purchase, the search of the [defendant]'s person and vehicle, the execution of two search warrant[s] [] at 2 McIntyre Court,
P eabody (the 'premises'), and seizure of additional heroin. A regional drug task force used a confidential informant (the 'CI') to set up a series of controlled purchases from
Navarro. On October 16, 2013, after three earlier controlled purchases and prov ision to the CI of two 'samples' of heroin, [the defendant] and Navarro drove together from 2 McIntyre Court to Macys in the North Shore Mall, the agreed

- upon meeting place for the next controlled purchase. [The defendant] drove a white Mitsubishi registe red to his wife (the 'Mitsubishi').[] They walked into the store together, and split while Navarro met with and showed the CI the contents of a shopping bag that appeared to be the agreed

- upon half

- kilo of heroin. Upon a signal from the CI and observatio n of a brief verbal exchange between Navarro and [the defendant], officers arrested Navarro, confirmed the contents of the shopping bag found at his feet, and then arrested [the defendant], a short distance away in the same section of Macys. The substance recovered from the shopping ba[g] was later tested and found to be heroin

. . . .
"During a search of [the defendant]'s person incident to his arrest, a set of keys was seized from his front pants pocket ('first set of keys'). Officers immediately
resp onded to the white Mitsubishi, which [the defendant] and Navarro had left in the parking lot before entering Macys. The vehicle was unlocked and officers entered the vehicle and found a second set of keys in the center console ('second set of keys'). Off icers then took the two sets of keys and went [to] the premises (i.e., 2 McIntyre Court). The first set of keys contained a key that opened the door to the second floor apartment, which police had earlier established to be [the defendant]'s residence. Th e second set of keys contained separate keys that opened the second floor apartment and the first floor apartment.3 "A search warrant was obtained to search the first and second floor apartments at the premis [] es. No potential evidence was seized under t he warrant from the second floor apartment. Over 100 grams of heroin, scales, a kilo press, cutting agent, and packaging materials were seized under the warrant from the first floor apartment. The substance recovered from the first floor apartment was la ter tested and found to be heroin

. . . ."

The defendant appealed his conviction and, i n May 2018,

filed his first motion for a new trial

. A Superior Court judge

(who was not the trial judge) denied the motion without an

evidentiary hearing

. The defendant appealed , and t h is court

consolidated the defendant's two appeals

. In t hat first

consolidated appeal, t he defendant primarily argued that he

received ineffective assistance of counsel because defense

counsel did not, among other things, move to dismiss the

defendant ' s indictments based on purportedly false grand jury

testimony. He also argued that the "Commonwealth elicited

improper expert testimony, the prosecutor's

. . . closing

argu ment created a substantial risk of a miscarriage of justice,

and the judge erred in denying his motions to suppress

evidence." A panel of this court rejected those arguments in an

unpublished decision

.
In September 2021, t he defendant filed a second moti on for

a new trial and a related motion for postconviction discovery ,

the denials of which are the subject of the present appeal

. The

defendant raised a host of arguments , primarily falling into

three categories. First, he made several arguments related to4

one Sergio Hernandez, a former tenant of the first

- floor

apartment at 2 McIntyre Court , who did not testify at trial

.

T he defendant presented an affidavit from Hernandez in which

Hernandez avers that he was a tenant in the first

- floor

apartment until three to four weeks before the defendant's

arrest, that he saw no evidence of drug dealing during his time

in the apartment, and that he told this to a prosecution

interviewer prior to trial. The defendant claim ed (1) that this

evidence was "newly discovered," (2) that the Commonwealth

withheld this exculpatory evidence regarding Hernandez , and (3)

(alternatively) that defense counsel rend ered ineffective

assistance by not calling Hernandez at trial

. Second, t he

defendant argued that the Commonwealth knowingly elicited

perjury from a trial witness, Drug Enforcement Agency special

agent Glen Coletti. Finally , the defendant raised several

a dditional claims of ineffective assistance of his trial counsel

and prior appellate counsel

. A different Superior Court judge

( who also was not the trial judge) denied the defendant's

motion s without an evidentiary hearing

.

Discussion

. On appeal, the defendant press es the same

arguments made in his second new trial motion. " Where, as here,

the motion judge did not preside at trial, and no evidentiary

hearing was held, we 'examine [his] conclusion only to determine

whether there has been a significant error of law or other abuse5

of discretion,' although we 'regard ourselves in as good a

position as the motion judge to assess the trial record'"

(citation omitted). Commonwealth v. Jackson , 468 Mass. 1009,

1010 (2014)

. We note at the outset that many of the defendant's

arguments pertain to alleged trial errors as to which there was

no objection, or which were not raised in the defendant's prior

postconviction proceedings. For these matters, " we review to

determine whether there was error and, if so, whet her the error

created a substantial risk of a miscarriage of justice."

Commonwealth v. Ahern , 96 Mass. App. Ct. 197, 202 (2019)

. See

Commonwealth v. Randolph , 438 Mass. 290, 294

- 295 (2002)

.

1. Newly discovered evidence . The defendant first

conten ds that a new trial is warranted because Hernandez , who

did not testify at trial, is "newly discovered , " and that the

information that Hernandez provided posttrial li kely would have

influenced the jury. To prevail on this theory, the defendant

must show " that the evidence was [previously] unknown to [him]

or [his] counsel." See, e.g., Commonwealth v. Pike , 431 Mass.

212, 218 ( 2000 ). Here, the motion judge concluded that

Hernandez was known to defense counsel prior to trial , such that

he was not "newly discovered." We agree

. I n an affidavit

accompanying the defendant's first new trial motion , defense

counsel averred that he "met with Sergio Hernandez" "[p]rior to6

trial." 1 Hernandez 's affidavit , signed in September 2021 and

submitted in connection with the second motion for a new trial,

confirms th at this meeting took place, and that during that

meeting Hernandez "told [ defense counsel] what [was] included in

[Hernandez's 2021 ] affidavit."

The defendant next highlights H ernandez 's averment that ,
prior to the defendant's trial, he told a Commonwealth

prosecutor that he had lived at 2 McIntyre Court up until "three

to four weeks" before the defendant's arrest and "never saw any

evidence of drug dealing

. " The defendant argu es that the

Commonwealth's failure to disclose this information violated

both Mass. R. Crim. P. 14 (a) , as amended, 444 Mass. 1501

(2012), as well as the constitutional obligation to disclose

known exculpatory information. See Commonwealth v. Sullivan ,
478 Mass. 369, 380 (2017), citing Brady v. Maryland , 373 U.S.

83 , 87 (1963)

.

1 Defense counsel did not submit an affidavit in connection with the defendant's second new trial motion

. Rather, c urrent appellate counsel submitted an affidavit which stated that , in August 2021, defense counsel told her that "as far as [he] could tell [Hernandez ] was unable to be located at the time of trial." The statement is not necessarily inconsistent with defense counsel's prior affidavit, which was made close r in time to the events at issue . Particularly where Hernandez's affidavit confirmed that Hernande z met with defense counsel prior to trial, the motion judge did not err in crediting defense counsel's prior affidavit without holding an evidentiary hearing. See Commonwealth v. Torres , 469 Mass. 398, 403 (2014)

.7

Th e defendant's argument under rule 14 (a) fails, because

there is no indication the Commonwealth had in its possession a

written statement to which rule 14 (a) applies. See

Com monwealth v. Bing Sial Liang , 434 Mass. 131, 137 (2001).

There is no evidence that, for example, the interviewer prepared

an interview memorandum. Hernandez does not claim to have given

a written statement , and the Commonwealth represented in a

verified discovery response that it did not locate a writing.

Turning to the constitutional argument, even assuming that

Hernandez made the subject statements to the prosecution, 2 the

defendant has not made the required showing that he was

prejudiced by the purported nondisclosure

. See Sullivan , 478

Mass. at 380

. Hernandez states in his affidavit that prior to

trial he spoke not only with a Commonwealth interviewer, but

also with defense counsel , and that he told each of them t he

same information ( included in his affidavit ) . "The defendant

was in no way prejudiced by the failure of the Commonwealth to

tell him or his counsel what his counsel already knew."

Commonwealth v. Rooney , 365 Mass. 484, 491 (1974). This is

especially so where defense counsel previously averred (in

connection with the first new trial motion) that he met with

2 We express no opinion on this factual i ssue. The Commonwealth of course has a duty to disclose known exculpatory information in its possession. See Commonwealth v. Rodriguez

- Nieves , 487 Mass. 171, 176

- 177 (2021).8

Hernandez , but that he nonetheless made the strategic decision

to pursue a defense under Commonwealth v. Bowden , 379 Mass. 472 ,

485

- 486 (1980) , in which he "focus [ed] on the fact that the

police never looked for [Hernandez]." Cf. Commonwealth v. Diaz ,
100 Mass. App. Ct. 588, 589 (2022) (no prejudice " where defense

counsel was already aware of the [nondisclosed evidence] and had

de cided not to use it for strategic reasons ").

2. False testimony . The defendant next argues that the

Commonwealth knowingly elicited false testimony from a trial

witness, special agent Coletti , who answered "Yes" when asked by

the Commonwealth : "You did see Navarro go in and out of th [e]

front door [of 2 McIntyre Court] every single drug deal that

happened?" The defendant did not object to the question, and he

did not raise th is issue in his prior postconviction

proceedings . W e therefore review for a substantial risk of a

miscarriage of justice. See Randolph , 438 Mass. at 294 ;

Commonwealth v. Deeran , 397 Mass. 136, 139 (1986).

The Commonwealth does not contest that Coletti 's testimony

was incorrect, as it appears that Coletti himself was never

assigned to surveil t he front door of the apartment. The

Commonwealth argues instead that Coletti made an unintentional

mis statement that does not give rise to a substantial risk of

miscarriage of ju stice

. We agree

. Notably, there was another

agent who was tasked with surveilling the front door, and that9

agent testified that he saw an individual matching Navarro's

description enter and exit the apartment close in time to the

relevant drug sales. Th e evidence accordingly was properly

before the jury. See C ommonwealth v. Resende , 476 Mass. 141,

152 (2017). The misstatement itself was brief and isolated.

Cf. Commonwealth v. McGann , 484 Mass. 312, 324 ( 2020 ). Nothing

in the record indicate s that Coletti's testimony was

intentionally false and elicited as such by the Commonwealth

.

And finally, as this court noted in deciding the defendant's

prior appeal, the Commonwealth presented a strong case. See

C ommonwealth v. Alphas , 430 Mass. 8, 13 ( 1999). Given these

considerations, w e are convinced that the error did not resu lt

in a substantial risk of a miscarriage of justice.

3

. Ineffective assistance of counsel

. The defendant also

argues that he is entitled to a new trial because his trial and

prior appellate counsel rendered ineffective assistance.

Notably , the defendant raised ineffective assistance of defense

counsel in his first new trial motion, and t hose ar guments were

rejected by the motion judge , whose decision was affirmed on

appeal. Many of the defendant's current arguments were not

asserted in that first new trial motion, even though they were

"reasonably available" to him. See Deeran , 397 Mass. at 13 9.

W e nevertheless review for a substantial risk of a miscarriage10

of justice

. Commonwealth v. LeFave , 430 Mass. 169, 173

- 174

(1999).

" Where a motion for a new trial is based on ineffective

assistance of counsel , the defendant must show that (1) the

'behavior of counsel [fell] measurably below that which might be

expected from an ordinary fallible lawyer' and (2) such failing

'likely deprived the defendant of an otherwise available,

substantial ground of defence' " (citation omitted).

Commonwealth v. Tavares , 491 Mass. 362, 365 ( 2023 )

.

a. Hernandez

. T he defendant argues that if Hernandez is

not " newly discovered " then defense counsel was ineffective by

not call ing him as a witness. The decision whether to call a

witness is strategic , Commonwealth v. Jacobs , 488 Mass. 597, 602

(2021), and " amounts to ineffective assistance ' only if it was

manifestly unreasonable when made ' " (citation omitted).

Commonwealth v. Morales , 453 Mass. 40, 44 (2009)

. He re , defense

counsel averred in connection with the defendant's first new

trial motion that he "deci [ded] that [ he ] did not need to call

[Hernandez] as a witness and instead " to raise a Bowden defense.

The focus of that Bowden defense was "on the fact that the

police never looked for [Hernandez]," suggesting that Hernandez

was behind the drug operation. Given that strategic decision,

d efense counsel reasonably could have concluded that he did not

want Hernandez to testify, a s defense counsel could have11

det ermined that Hernandez would have "harm [ ed ] the defendant's

case more than

. . . helped it

. " Jacobs , supra at 603

. W e are

not convinced that trial counsel's d ecision was manifestly

unreasonable , let alone that a substantial risk of a miscarriage

of justice resulted

. See Randolph , 438 Mass. at 293

- 295.

b

. Motion to suppress

. The defendant also claims that

trial counsel provided ineffective assistance by not

challenging , at the motion to suppress stage, the Commonwealth 's

reli ance o n the "collective knowledge doctrine" to support the

warrantless searches of the defendant, the Mitsubishi , and the

apartment s at 2 McIntyre Court

. Specifically, he argues that

the State trooper who testified at the suppression hearing

lacked "direct knowledge" of some of the circumstances that led

to those searches. Where, as here, a defendant premises " a

claim of ineffective assistance

. . . on grounds not raised in a

motion to suppress , the defendant must show that the motio n "

l ikely would have succeeded

. See Commonwealth v. Banville , 457

Mass. 530, 534 ( 2010 )

. See also Comm onwealth v. Villalobos , 89

Mass. App. Ct. 432, 442

- 443 ( 2016 ), S

. C ., 478 Mass. 1007 ( 2017 )

. 3

3 The defendant's primary suppression argument on this appeal is not based upon ineffective assistance of counsel; rather, he
argue s directly that his motion to suppress should have been granted due to the Commonwealth's purportedly imp roper reliance on the collective knowledge doctrine. B ut t he defendant did not raise the trooper's lack of "direct knowledge" during the litigation of the motion to suppress or on direct appeal

.

" Because the defendant did not properly alert the judge to12

Here, the trooper testified about his direct involve ment in

the investigation, relaying that he saw the defendant inside the

Macy's and effected the defendant's arrest ; that he was part of

the surveillance team that observed the defendant and the

Mitsubishi on the day of that arrest (and that had see n the car

used in prior drug sales); and that he was present at 2 McIntyre

Court when officers entered the apartment. Additional members

of the surveillance team contemporaneously relayed information

to the trooper (and the rest of the team) via radio , in cluding

that the defendant and Navarro walked into the Macy's together,

that Navarro was carrying a bag, and that Navarro was arrested

after it was discovered that the bag appeared to contain heroin

.

Under the circumstances, there was no "collective knowl edge"

issue, because the arresting and searching officers had received

all the information necessary to establish probable cause before

their respective actions

. 4 See Commonwealth v. Privette , 491

Mass. 501, 503 (2023) (aggregation of officers' knowledge

permissible where they are "involved in a joint investigation,

[this] argument, the waiver doctrine precludes him from doing so on appeal. " See Comm onwealth v. Silva , 440 Mass. 772, 783 ( 2004 ). In any event, for the reasons explained infra , we discern no substantial risk of a miscarriage of justice in the denial of the defendant's motion to suppress . See Commonwealth

v. Dew , 478 Mass. 304, 309

- 310 ( 2017).

4 Nor was the defendant's prior appellate counsel ineffective by not raising this argument previously . See Commonwealth v. Richard , 398 Mass. 392, 394 , cert. denied 479 U.S. 1010 (1986)

.13

pursuing a mutual purpose and objective, and .

. . in close and

continuous communication with each other about that shared

objective "). Nor was there error in the trooper testifying to

what he heard from others, as " hearsay is admissible in a motion

hearing relating to suppression ." See Commonwealth v. Fletcher ,

52 Mass. App. Ct. 166, 168 n.2 ( 2001 )

. Defense counsel

therefore did not render ineffecti ve assistance by not moving to

suppress on those bases. In any event, we are not persuaded

that suppression was likely , as this court has already held that

the searches at issues, on these facts, were supported by

probable cause.

c

. Hearsay statements

. Next, t he defendant faults trial

counsel for not objecting to testimony from police officers that

repeated hearsay statements attributed to Navarro, to another

co
- defendant, Junior Carmona, and to the CI

. In particular,

officers testified abo ut (1) what they heard Navarro and Carmona

say concerning "the times and locations of " previous controlled

purchases that did not involve the defendant , including " the

quantities of drugs and prices that were negotiated , " and (2)

what the CI told officers that Navarro had said leading up to

the October 16 sale about the "price, timing , . . . and exchange

of samples." However, c ounsel's failure to object did not

prejudice the defendant , primarily because the statements did

not involve or reference the defen dant in the prior controlled14

purchases. Moreover, many of th e details about the controlled

purchases were "cumulative of other, properly admitted evidence"

-- that is, testimony from officers who observed the

transactions, provided the CI with funds for the purchases, and

then collected the drugs that were sold to the CI. See Resende ,

476 Mass. at 152

. Accordingly, and considering this court's

previous determination that the Commonwealth presented a strong

case, "we are not left with 'a serious doubt whether the result

of the trial might have been different'" (citation omitted).

Commonwealth v. Leary , 9 2 Mass. App. Ct. 332, 346

- 347 (2017).

d

. P rior a p pellate counsel . Turning to his appellate

counsel, the defendant claims that counsel was deficient by not

rais ing the Federal constitutional implications of certain of

the defendant's prior appellate arguments

. The motion judge

rejected this argument "for the reasons stated in the

Commonwealth's [o]pposition to the [d]efendant's [s]econd

[m]otion for a [n]ew [t]rial," and we agree. The thrust of the

defendant's argument is that prior appell ate counsel would have

obtained a better result had he raised the Federal

constitutional implications of (1) a law enforcement agent's

allegedly false testimony to the grand jury; (2) the admission

of allegedly improper expert opinion testimony; and (3) th e

Commonwealth's closing argument. However, this court previously

held that those prior arguments were without merit and15

"unavailing , " or otherwise did not evidence a "substantial risk

of a miscarriage of justice." "Because a better result would

not have been obtained had the claims been made under the United

States Constitution, we reject the defendant's argument[s]."

See Commonwealth v. Hardy , 464 Mass. 660, 669 ( 2013 )

. 5

4

. Post conviction d iscovery

. Finally, t he defendant

separately argues that the motion judge abused h is discretion in

denying the defendant's motion for postconviction discovery

regarding Hernandez , other "potentially exculpatory evidence , "

and "[a]ny and all notes

. . . that contain any statements from

any witness." Under Mass. R. Crim. P. 30 (c) (4), as appearing

in 435 Mass. 1501 (2001), a judge " may authorize

[postconviction] discovery " where " affidavits filed by the

moving party under [Mass. R. Crim. P. 30] (c) (3) establish a

prima facie case for relief ." The motion j udge did not abuse

the " broad discretion " he has to decide whether the "d efendant

. . . established a prima facie case for relief." Commonwealth

v. Ware , 471 Mass. 85 , 94 (2015). First, t he Commonwealth

satisfied the defendant's requests concerning Hernandez , s tating

5 Given our conclusions above, we find no merit in the defendant's argument that the cumulative effect of the claimed errors warrants a new trial

. See Commonwealth v. Hobbs , 482
Mass. 538, 560 (2019)

. We also conclude that the motion judge did not abuse his discretion in declining to hol d an evidentiary hearing. See Commonwealth v. Figueroa , 422 Mass. 72, 77 (1996) ; Commonwealth v. Stewart , 383 Mass. 253, 259 (1981)

.16

in a verified discovery response that "there are no [responsive]

materials in the Commonwealth's file

. " Nor has the defendant

offered any reason to think that the Commonwealth withheld other

" potentially exculpatory " evidence or witness statements

.
Accordingly, h e has not made a prima facie showing " that it is

reasonably likely that such discovery will lead to evidence

possibly warranting a new trial ." See Commonwealth v. Camacho ,
472 Mass. 587, 598 (2015). 6

Orders denying motion for a new trial and for postconviction discovery affirmed

.
By the Court (Meade, Englander & Grant, JJ. 7 ),

Clerk

Entered: April 21, 2023.

6 We have considered each of the defendant's arguments on appeal. To the extent any of those arguments are not specifical ly addressed herein, we have not overlooked them, but have determined that they lack merit. See Commonwealth v. Domanski , 332 Mass. 66, 78 (1954)

. 7 The panelists are listed in order of seniority.