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

22-P-683

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 convictions 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 improperly withheld,

casts doubt on his convictions, (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. We 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 described 
2

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 heroin, 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, 

Peabody (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 provision 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 

registered 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 observation 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 

responded 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'). Officers 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. The 

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 the 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 later tested 

and found to be heroin . . . ."

The defendant appealed his conviction and, in 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 this court 

consolidated the defendant's two appeals. In that first

consolidated appeal, the 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 

argument 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, the defendant filed a second motion 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 to 
4

one Sergio Hernandez, a former tenant of the first-floor

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

The 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 claimed (1) that this 

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

withheld this exculpatory evidence regarding Hernandez, and (3) 

(alternatively) that defense counsel rendered ineffective 

assistance by not calling Hernandez at trial. Second, the 

defendant argued that the Commonwealth knowingly elicited 

perjury from a trial witness, Drug Enforcement Agency special 

agent Glen Coletti. Finally, the defendant raised several

additional 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 

motions without an evidentiary hearing.

Discussion. On appeal, the defendant presses 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 abuse 
5

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, whether 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 

contends 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 likely 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. In an affidavit 

accompanying the defendant's first new trial motion, defense

counsel averred that he "met with Sergio Hernandez" "[p]rior to 
6

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

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

confirms that 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 Hernandez'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 argues 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, current 

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 closer in time to the 

events at issue. Particularly where Hernandez's affidavit 

confirmed that Hernandez 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

The 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 

Commonwealth 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 the 

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 issue. 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 

decided 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 this issue in his prior postconviction 

proceedings. We 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 the front door of the apartment. The 

Commonwealth argues instead that Coletti made an unintentional

misstatement that does not give rise to a substantial risk of 

miscarriage of justice. We agree. Notably, there was another 

agent who was tasked with surveilling the front door, and that 
9

agent testified that he saw an individual matching Navarro's 

description enter and exit the apartment close in time to the 

relevant drug sales. The evidence accordingly was properly 

before the jury. See Commonwealth 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 indicates 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 

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

considerations, we are convinced that the error did not result

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 those arguments 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 139. 

We nevertheless review for a substantial risk of a miscarriage 
10

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. The defendant argues that if Hernandez is

not "newly discovered" then defense counsel was ineffective by

not calling 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). Here, 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, 

defense counsel reasonably could have concluded that he did not 

want Hernandez to testify, as defense counsel could have 
11

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

case more than . . . helped it." Jacobs, supra at 603. We are 

not convinced that trial counsel's decision 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

reliance on the "collective knowledge doctrine" to support the 

warrantless searches of the defendant, the Mitsubishi, and the 

apartments 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 motion"

likely would have succeeded. See Commonwealth v. Banville, 457

Mass. 530, 534 (2010). See also Commonwealth 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 

argues directly that his motion to suppress should have been 

granted due to the Commonwealth's purportedly improper reliance 

on the collective knowledge doctrine. But the 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 to 
12

Here, the trooper testified about his direct involvement 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 seen 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, including

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 knowledge"

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 Commonwealth 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 ineffective 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, the 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 about (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, counsel's failure to object did not

prejudice the defendant, primarily because the statements did

not involve or reference the defendant in the prior controlled
14

purchases. Moreover, many of the 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, 92 Mass. App. Ct. 332, 346-347 (2017).

d. Prior appellate counsel. Turning to his appellate 

counsel, the defendant claims that counsel was deficient by not 

raising 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 appellate 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) the 

Commonwealth's closing argument. However, this court previously 

held that those prior arguments were without merit and 
15

"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. Postconviction discovery. Finally, the defendant 

separately argues that the motion judge abused his 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 judge did not abuse 

the "broad discretion" he has to decide whether the "defendant 

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

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

satisfied the defendant's requests concerning Hernandez, stating 

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 hold 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, he 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 specifically 

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.