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SJC-10686

COMMONWEALTH vs. JAMES E. BRESCIA.

Middlesex. January 6, 2015. - May 8, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Homicide. Practice, Criminal, New trial, Witness, Capital case.

Witness, Credibility. Evidence, Credibility of witness.

Indictments found and returned in the Superior Court 

Department on June 26, 2006. 

The cases were tried before Wendie I. Gershengorn, J., and 

a motion for a new trial, filed on April 15, 2011, was heard by 

Douglas H. Wilkins, J.

Bethany Stevens, Assistant District Attorney, for the 

Commonwealth.

Alan Jay Black for the defendant.

LENK, J. At the defendant's trial for murder and 

conspiracy, the theory of the prosecution was that the defendant 

had hired an assassin to kill the victim. The victim was a man 

with whom the defendant believed his wife was romantically 
2

involved. The defendant took the stand and testified on his own 

behalf, asserting that he had requested only that the victim be 

threatened or beaten, and that subsequently he had withdrawn 

from the arrangement altogether. The defendant was crossexamined on the same day and on the following day.

After the jury were charged, the defendant was taken to the 

hospital, where it was determined that he had suffered a stroke. 

Testing later revealed that the stroke had occurred on the night 

between the first and second days of the defendant's testimony. 

The jury, who never learned of the defendant's stroke, returned 

guilty verdicts on both indictments.

The defendant filed a motion for a new trial. Because the 

trial judge had retired, the motion was assigned to another 

judge, who held a four-day evidentiary hearing and issued a 

detailed written decision. The judge determined that the 

defendant's then-undetected stroke had affected the course of 

his testimony in a manner that well might have damaged his 

credibility in the jury's eyes. The outcome of the trial, the 

judge explained, had turned in large measure on the jury's 

assessments of credibility. Concluding essentially that 

"justice may not have been done," Mass. R. Crim. P. 30 (b), as 

appearing in 435 Mass. 1501 (2001), the judge ordered a new 

trial. The Commonwealth appealed.

We discern no significant error of law or abuse of 
3

discretion in the judge's decision that a new trial was 

warranted, and we therefore affirm.

1. Background. a. The Commonwealth's case. We describe 

the evidence presented by the Commonwealth in some detail. The 

defendant and his wife were married in 1998. In 2003, the 

defendant's wife filed for divorce; that action was soon 

withdrawn, and the couple attempted to reconcile. The 

defendant's wife again filed for divorce in June, 2005. At 

about the same time, she renewed an acquaintance with the 

victim, whom she had dated intermittently from 1984 to 1996. 

The two again began to meet in person in June or July of 2005.

The defendant learned of the rekindled connection between 

the victim and his wife. He and his wife fought often about 

this subject. The defendant's wife testified that the defendant 

told her, on one occasion, that "it wouldn't be good for [the 

victim's] health" if the victim and the defendant's wife ended 

up together; when the defendant's wife told him not to do 

something "stupid," the defendant responded, "it won't be [me]

who does it."

The defendant hired a private investigator to follow his 

wife. In September, 2005, he also purchased records concerning 

the victim from an Internet search company.

The defendant heard about Scott Foxworth, allegedly the 
4

assassin who killed the victim,1 from a coworker, Nancy Campbell. 

Campbell previously had dated Foxworth. The defendant learned, 

among other things, that Foxworth had been incarcerated for 

murder, and that he once had offered to have Campbell's husband 

"beaten up." The defendant asked Campbell to contact Foxworth, 

saying that he "wanted somebody taken care of." Instead, 

Campbell gave the defendant Foxworth's telephone numbers.

The defendant contacted Foxworth in October, 2005. The 

content of the arrangement made between Foxworth and the 

defendant was the key point of dispute at trial. According to 

Campbell's testimony, the defendant spoke, at first, of wanting 

to have the victim "beaten up"; but later, in approximately 

December, 2005, the defendant said that "a beating wasn't 

enough," and that if the victim were to die, the crime could not 

be traced back to the defendant.

2

The defendant telephoned Foxworth sixty-four times over the 

months following their initial contact in October, 2005. He 

made these calls from pay telephones, using coins and prepaid 

 

1 Scott Foxworth was subsequently convicted of murder in the 

first degree in a separate trial. His appeal is pending in this 

court.

2 The credibility of Nancy Campbell's testimony was weakened

on cross-examination, primarily in view of the fact that she had 

not told police that the defendant wanted the victim killed 

until the fourth time she was interviewed. See part 3, infra.
5

cards he purchased for this purpose. On October 14, the 

defendant and his mother cashed a check in the amount of $4,459; 

the next day, Foxworth made a cash deposit of $1,000.

Sometime in September, 2005, the defendant had left the 

home he had shared with his wife. From Christmas Eve of that 

year to New Year's Day, however, the defendant stayed at that 

house with his wife and their children. The defendant and his 

wife were sexually intimate during this period. His wife told 

him, however, that she still intended to move forward with a

divorce. Soon thereafter, the defendant wrote to his wife that 

their time together over the holidays had intensified his 

confusion and his emotions for her. The defendant also sent a 

series of electronic mail messages in the same vein to his 

wife's sister.

On January 13, 2006, the victim was found dead in his 

automobile, parked in a parking garage in Newton next door to 

the building where he worked. The cause of death was a gunshot 

wound to the head. The victim's wallet, which contained credit

cards and $541 in cash, was recovered from the scene.

A red vehicle was seen at the victim's workplace on the 

morning of the shooting. A witness thought that the vehicle 

might have been a Ford Taurus. None of the individuals who 

worked in that building drove a vehicle of that description. 

Foxworth owned a red Taurus, and sometime in 2006, his daughter 
6

saw him in that vehicle with a gun.

On January 15, 2006, the defendant asked Charles Merkle, an 

acquaintance of his, for $2,500 that Merkle was holding for the 

defendant in an envelope.3 The defendant said that he needed the 

money to pay a lawyer. Merkle accompanied the defendant to a 

fast food restaurant in Andover. The defendant entered the 

restaurant with the envelope containing the money, and left 

without it.

b. The defense. The defendant testified on his own

behalf, relating the following version of events. The defendant 

learned that his wife had reconnected with the victim. He knew 

that the victim had a history of drug abuse and drug offenses,

felt that the victim was not a good role model, and "didn't want 

[his] children to be around any[body] like that." When the 

defendant first spoke to Foxworth, he mentioned that it 

"wouldn't bother [him]" to see the victim "get beat up or 

something."

Later on, according to the defendant, he asked Foxworth to 

"approach[]" the victim and to "engage." Foxworth asked to be 

paid $2,000, and the defendant "laughed and . . . said[,] 2,000 

dollars just to go talk to somebody?" Foxworth suggested that 

 

3 The defendant had given Charles Merkle an envelope 

containing $5,000 around Thanksgiving, and had taken back half 

of that money sometime near Christmas.
7

the defendant pay him $1,000 in advance and another $1,000 if 

"it stops." In October, 2005, the defendant agreed, and he paid 

Foxworth $1,000 in cash. The defendant's understanding was that 

Foxworth would "threaten" the victim, and perhaps "beat him if 

it came to that"; he never asked Foxworth to kill the victim. 

The defendant continued to speak to Foxworth on the telephone, 

usually about Foxworth's desire to date Campbell again and his 

hope that the defendant would intercede with Campbell on his 

behalf.

By early December, 2005, the defendant testified, it 

appeared to him that Foxworth was not "interested in doing 

anything." The defendant asked Foxworth to return his money and 

to "forget this whole thing." The defendant reiterated this 

request several times in late December, 2005, and early January,

2006, telling Foxworth also that "things were going well with 

the family and . . . it didn't appear that [the defendant] 

needed to do anything like that anymore."

After he found out that the victim had been killed, the 

defendant called Foxworth, who said, "[W]ell, at least your 

problem's taken care of now." The defendant was 

"flabbergasted." Foxworth then asked the defendant for the 

"other thousand dollars," and told the defendant that if he 

didn't pay, "the same would end up happening to [him]." The 

defendant obtained the envelope containing $2,500 from Merkle, 
8

paid Foxworth $1,000, and kept the remaining $1,500.

c. Conclusion of the trial. The direct examination of the 

defendant took place on June 19, 2008, a Thursday. The 

defendant was cross-examined on that afternoon and on the 

following day. The jury were charged on Monday, June 23, 2008. 

The next morning, the judge and the attorneys were informed that 

the defendant had suffered a stroke and had been taken to the 

hospital. The jury began their deliberations that day without 

entering the court room and, therefore, without learning that 

anything out of the ordinary had occurred.

The defendant's attorney visited the hospital, where he

spoke with the defendant and with the defendant's doctor. Upon 

returning to the court house, defense counsel reported that the 

defendant had communicated with him "without obvious 

difficulty." The defendant told his attorney that he waived his 

right to be present for the remainder of the trial. Defense 

counsel's assessment was that this waiver "was made knowingly 

and intelligently." Later that day, the jury found the 

defendant guilty of both murder in the first degree and 

conspiracy.

d. Postconviction proceedings. The defendant moved for a 

new trial, arguing that (a) a crucial stage of the trial had 

been conducted while he was incompetent; (b) the judge did not 

ensure that the defendant validly waived his right to be 
9

present; and (c) the defendant was deprived of his right to the 

effective assistance of counsel, because his attorney failed to 

seek an examination of the defendant's competency, waived the 

defendant's right to be present for the end of the trial, and 

did not move for a mistrial after learning of the defendant's 

stroke. The defendant also filed his direct appeal, which was 

stayed pending resolution of the motion for a new trial.

The motion judge held a four-day evidentiary hearing. The 

judge heard testimony from the defendant, his trial attorney, a 

court officer, the court reporter who had transcribed the trial, 

a jailhouse nurse, two medical experts called by the defendant

(a neurologist and a forensic psychiatrist), and a neurologist 

called by the Commonwealth. The trial had been videotaped by a 

network television station, and the judge thus was able to 

consult high-quality video recordings of the defendant's two 

days of testimony (as was this court).4

The motion judge made the following findings of fact, which 

are not in dispute.

Beginning in the early morning hours of June 20, 2008, the 

defendant suffered at least one stroke, "ischemic in nature, 

caused by an embolus that blocked blood flow to areas of the 

 

4 The motion judge noted that the video recording was made 

"possible only because the Commonwealth allows cameras in the 

courtroom."
10

brain." The stroke was not diagnosed when the defendant's 

symptoms first arose, but ultimately it was confirmed by a 

magnetic resonance imaging scan and by expert analysis.

The first symptom of the defendant's stroke was a severe 

headache, which interfered with his sleep on the night following

his first day on the stand. The defendant's headache continued 

during the ensuing day. He twice complained to a court officer, 

and was told both times that he could not be given aspirin.5

On the defendant's second day of testimony, the court 

reporter noticed that the defendant was confusing syntax, 

pronouns, names, and the like. During a break, the court 

reporter asked the defendant's attorney, "What's up with your 

guy?" Defense counsel responded that the defendant was acting 

as usual.

The motion judge found that, in hindsight, the court 

reporter had been correct. As reflected in the transcripts and 

the video recordings, the defendant's "ability to testify was 

reduced" on his second day of testimony, as compared both to the 

previous day and to the defendant's "usual capabilities." The 

defendant sometimes appeared "uncomprehending or hesitant." He 

had "difficulty understanding the questions being asked of him," 

 

5 The judge wrote that a conversation between the defendant 

and his attorney, which was captured inadvertently on the video 

recording of the trial, was not material to his decision.
11

and "[a]fter understanding the questions, the defendant . . . 

had more difficulty than usual in finding and saying the words 

he wanted to use." The defendant did not, however, present 

incriminating testimony or testimony that was inconsistent with 

his theory of defense; his deficits "went to the manner and 

timing of his testimony . . . not to the substance." On the 

basis of the expert testimony presented, the judge found that 

these deficits had been caused by the defendant's stroke.

Proceeding from these findings of fact, the motion judge 

rejected the defendant's arguments for a new trial based on 

alleged constitutional errors. The judge determined that 

(a) the defendant was competent to stand trial at all relevant 

times; (b) the trial judge conducted an appropriate inquiry into 

the defendant's competency, and her decisions on the basis of 

that inquiry involved no error or abuse of discretion; (c) the 

defendant executed a knowing and intelligent waiver of his right 

to be present at the final stages of his trial; and (d) the 

assistance provided by the defendant's trial counsel was not 

unconstitutionally ineffective.

Nevertheless, the judge concluded that a new trial was 

warranted "under the test of Mass. R. Crim. P. 30 (b) ('justice 

may not have been done')." The judge explained that "[t]he jury 

could have viewed the defendant's non-responsiveness, claimed 

lack of memory and requests for repetition of the question [on
12

his second day of testimony] as disingenuous or intentionally 

evasive and therefore as undermining his credibility." In 

closing argument, "[t]he Commonwealth . . . seized upon those 

difficulties and the defendant's demeanor as proof of

mendacity." And the trial judge instructed the jury, consistent 

with the model jury instructions, that a witness's demeanor on 

the stand is a factor relevant to assessing his or her 

credibility. Given that the defense had "turned upon whether 

the defendant's testimony created a reasonable doubt for the 

jury," the judge concluded that the unusual circumstances gave 

rise to a "basic unfairness or potential for injustice," 

requiring a new trial. The Commonwealth timely appealed.

2. Applicable standards. It is well established that, 

"[i]n reviewing the denial or grant of a new trial motion, we 

'examine the motion judge's conclusion only to determine whether 

there has been a significant error of law or other abuse of 

discretion.'" Commonwealth v. Wright, 469 Mass. 447, 461 

(2014), quoting Commonwealth v. Weichell, 446 Mass. 785, 799 

(2006).6 A judge's findings of fact made after an evidentiary 

 

6 "When the defendant has prevailed on a motion for a new 

trial after a conviction of murder in the first degree . . . the 

[G. L. c. 278, § 33E,] standard [requiring review for a 

substantial likelihood of a miscarriage of justice] does not 

apply, for, if we affirm the allowance of the motion and the 

defendant is convicted at retrial, he receives § 33E review on 

appeal." Commonwealth v. Hill, 432 Mass. 704, 710 n.14 (2000), 
13

hearing "will be accepted if supported by the record." 

Commonwealth v. Walker, 443 Mass. 213, 224 (2005), citing 

Commonwealth v. Bernier, 359 Mass. 13, 16 (1971). If the motion 

judge did not preside at the trial, we "regard ourselves in as 

good a position as the motion judge to assess the trial record." 

Commonwealth v. Wright, supra, quoting Commonwealth v. Weichell,

supra.

The parties disagree about the standard that the judge 

should have applied in reviewing the motion for a new trial. As 

noted, the judge did not find that the defendant's trial had 

been infected by error; the defendant does not challenge this 

determination. The Commonwealth argues that, under these 

circumstances, a new trial would be warranted only upon a 

showing of a "substantial risk of a miscarriage of justice." 

Alternatively, the Commonwealth suggests that the defendant 

should be held to the standard applicable when a new trial is 

sought on the basis of newly discovered evidence. The 

defendant, on the other hand, contends that the judge was 

permitted "to consider the essentially case-specific issue of 

whether there has been a miscarriage of justice on a highly 

discretionary standard."

 

citing Commonwealth v. Martin, 427 Mass. 816, 817-818 & n.2 

(1998).
14

For the reasons we describe, our view is essentially that 

taken by the motion judge and urged by the defendant.

The point of departure for the resolution of a motion for a 

new trial is Rule 30 (b) of the Massachusetts Rules of Criminal 

Procedure, which provides that, upon a motion in writing, a 

judge "may grant a new trial at any time if it appears that 

justice may not have been done." The fundamental principle 

established by Mass. R. Crim. P. 30 (b) is that, if it appears 

that justice may not have been done, the valuable finality of

judicial proceedings must yield to our system's reluctance to 

countenance significant individual injustices.7

Our decisions have crafted a latticework of more specific 

standards designed to guide judges' determinations, in various 

types of situations, as to whether a new trial should be 

ordered. A new trial is required if prejudicial constitutional 

error occurred at trial. See Commonwealth v. Martin, 467 Mass. 

 

7 The authority of a judge deciding a motion under Mass. R. 

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), is 

substantially similar to the authority on a motion under Mass. 

R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). See 

Commonwealth v. Pring-Wilson, 448 Mass. 718, 732 n.14 (2007), 

citing Commonwealth v. Doucette, 408 Mass. 454, 455–456 (1990), 

and Commonwealth v. Pope, 392 Mass. 493, 497 (1984) ("A judge 

has similar broad discretion to grant a new trial in the 

interests of justice under both rules"); Commonwealth v. 

Gilbert, 447 Mass. 161, 165-169 (2006) (motions brought under 

either rule may result either in new trial or in reduction of 

conviction to lesser charged offense).
15

291, 316 (2014); Commonwealth v. Sullivan, 385 Mass. 497, 503 

(1982). If a motion for a new trial rests on an unpreserved 

claim of nonconstitutional error, a new trial should be granted 

only if the defendant demonstrates a "substantial risk of a 

miscarriage of justice," Commonwealth v. Childs, 445 Mass. 529, 

530 (2005), namely, "a serious doubt whether the result of the 

trial might have been different had the error not been made."

Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting 

Commonwealth v. Azar, 435 Mass. 675, 687 (2002).8 Newly 

discovered evidence warrants a new trial if that evidence "casts 

real doubt on the justice of the conviction," in the sense that 

the evidence "would probably have been a real factor in the 

jury's deliberations." See Commonwealth v. Cowels, 470 Mass. 

607, 616-617 (2015), quoting Commonwealth v. Grace, 397 Mass. 

303, 305-306 (1986).9

 

8 The Appeals Court has said, in dicta, that "[w]hen the 

basis alleged in the new trial motion is not prejudicial 

constitutional error, but some other manifest injustice, then 

the determination that justice may not have been done equates 

with a substantial risk of a miscarriage of justice." 

Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 636 n.9 (2001), 

citing Commonwealth v. LeFave, 430 Mass. 169, 171-174 (1999). 

But in the decision on which this statement relies, our reason 

for applying the "substantial risk of a miscarriage of justice"

standard was that the argument presented had been waived by the 

defendant in earlier proceedings. See Commonwealth v. LeFave, 

supra at 173-174.

9 For at least two reasons, we do not think that the 

standard applicable to motions for a new trial based on newly 
16

These specific standards, and others,

10 have not eclipsed

the broader principle that a new trial may be ordered if "it 

appears that justice may not have been done." This point is

illustrated by our decision in Commonwealth v. Pring-Wilson, 448 

Mass. 718 (2007) (Pring-Wilson). The trial judge there excluded 

 

discovered evidence would be appropriate here. First, the basic 

facts concerning the defendant's stroke were known to the judge 

and the attorneys before the jury had returned a verdict. It is 

therefore doubtful that the defendant could "establish that the 

evidence was unknown . . . and not reasonably discoverable at 

the time of trial." Commonwealth v. Cowels, 470 Mass. 607, 616 

(2015), quoting Commonwealth v. Shuman, 445 Mass. 268, 271 

(2005). Second, the information as to the stroke that the 

defendant suffered during the course of trial does not itself 

directly concern the crime of which he stood accused at trial. 

In that sense, it is quite unlike the type of evidence that 

ordinarily is examined to see if it might have been "a real 

factor in the jury's deliberations." Commonwealth v. Cowels, 

supra at 617, quoting Commonwealth v. Grace, 397 Mass. 303, 306 

(1986). That being said, we do not consider whether, in the 

singular circumstances of this case, a new trial would have been 

warranted had the jury been informed of the stroke and its 

effects on the defendant before they began deliberations.

10 See, e.g., Commonwealth v. Murray, 461 Mass. 10, 20-21 

(2011) (where Commonwealth withheld exculpatory evidence not 

specifically requested, applicable standard is "the same 

standard used to assess the impact of newly discovered 

evidence"); Commonwealth v. Daniels, 445 Mass. 392, 404 (2005), 

quoting Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992) 

(where Commonwealth withheld exculpatory evidence that was 

specifically requested, defendant seeking new trial "need only 

demonstrate that a substantial basis exists for claiming 

prejudice from the nondisclosure"); Commonwealth v. Comita, 441 

Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 

89, 96–97 (1974) (motion for new trial based on ineffective 

assistance of counsel must establish "that the behavior of 

counsel fell below that of an ordinary, fallible lawyer and that 

such failing 'likely deprived the defendant of an otherwise 

available, substantial ground of defence'").
17

probative evidence that the victims had histories of violence, 

reasoning that the defendant knew nothing of those histories. 

See id. at 719. This ruling was correct, since we had not yet 

held, in Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005), 

that judges would thereafter have discretion to admit such 

evidence. The judge in Pring-Wilson nevertheless ordered a new 

trial after we decided Commonwealth v. Adjutant, supra, stating

that, in light of the concerns we recognized there, "the 

integrity of the defendant's trial was compromised." PringWilson, supra at 720. We affirmed the grant of a new trial; 

although no error had been made and the defendant presented no

newly discovered evidence of his innocence, we could not "say 

that the judge's conclusion that 'fairness require[d]' granting 

the defendant a new trial was an abuse of her broad discretion 

to see that justice is done." Id. at 737 (alteration in 

original).

Some guidance as to how judges should decide if "justice 

may not have been done," in the absence of error or new 

evidence, is provided by our older decision Commonwealth v. 

Lombardi, 378 Mass. 612 (1979) (Lombardi). The defendant there

suffered from permanent amnesia, which destroyed his ability to 

remember the events of the crime he was charged with committing. 

We held that amnesia does not itself render a defendant 

incompetent to stand trial; but that "[t]he appropriate 
18

test . . . is whether a defendant can receive, or has received, 

a fair trial." Id. at 615. We stressed that "[s]uch a question 

of fundamental fairness can only be determined on a case by case 

basis." Id. at 616. We also provided a non-exhaustive list of 

factors to be considered, including

"the nature of the crime, the extent to which the 

prosecution makes a full disclosure of its case . . . , the 

degree to which the evidence establishes the defendant's 

guilt, the likelihood that . . . [a] defense could be 

established but for [the defendant's condition], and the 

extent and effect of [the condition]."

Id. A judge weighing whether a new trial is warranted in light 

of these and similar factors must keep in mind that "[a]

defendant is entitled to a fair trial but not a perfect one, 

'for there are no perfect trials.'" Commonwealth v. Graves, 363 

Mass. 863, 872-873 (1973), quoting Brown v. United States, 411 

U.S. 223, 231-232 (1973). The judge also must focus on the 

probable effect of the circumstances on the jury's decisionmaking, and not on his or her own "personal assessment of the 

trial record," see Commonwealth v. Tucceri, 412 Mass. 401, 411 

(1992), in order to "preserve[] . . . the defendant's right to 

the judgment of his peers." Id.

In sum, extraordinary fact patterns can frustrate even 

meticulous efforts to do justice. Situations that are not 

encompassed by the more specific standards delineated in our 

case law nevertheless may require judges to exercise their 
19

"broad discretion to see that justice is done." Pring-Wilson, 

448 Mass. at 737. In such cases, judges must determine whether 

the defendant "can receive, or has received, a fair trial." 

Lombardi, 378 Mass. at 615. This determination must be made "on 

a case by case basis," taking into account a number of specific 

factors. See id. at 616.

11

 

11 Judges weighing whether justice may not have been done in 

those rare cases not governed by more specific standards may, in 

some instances, find direction in our body of decisions 

reviewing capital convictions pursuant to G. L. c. 278, § 33E. 

We have noted certain points of similarity between our authority 

under § 33E and that of judges deciding motions for 

postconviction relief. See Commonwealth v. Woodward, 427 Mass. 

659, 668-669 (1998) (postconviction judge may, and we must, 

consider all of the evidence); Commonwealth v. Carter, 423 Mass. 

506, 513 (1996) (both § 33E and Mass. R. Crim. P. 25 [b] [2]

provide variety of remedies including reduction of conviction 

to lesser charged offense). See also Commonwealth v. Rolon, 438 

Mass. 808, 820 (2003), quoting Commonwealth v. Gaulden, 383 

Mass. 543, 555 (1981) (decision whether to reduce verdict 

"should be guided by the same considerations" in both contexts);

note 7, supra. Importantly, like judges deciding if "justice 

may not have been done," we grant relief under § 33E not only 

because of errors at trial, but also "for any . . . reason that 

justice may require." See Commonwealth v. Colleran, 452 Mass. 

417, 431 (2008). In § 33E appeals, we review every issue for --

at a minimum -- a "substantial likelihood of a miscarriage of 

justice." "Under that standard, 'a new trial is called for 

unless we are substantially confident that, if the error had not 

been made, the jury verdict would have been the same.'" 

Commonwealth v. Figueroa, 468 Mass. 204, 229 (2014), quoting 

Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998). We 

never have held that postconviction judges should apply the 

"substantial likelihood of a miscarriage of justice" standard to 

determine whether a new trial (or another remedy) is warranted. 

See, e.g., Commonwealth v. Marrero, 459 Mass. 235, 244 (2011), 

quoting Commonwealth v. Williams, 453 Mass. 203, 204–205 (2009) 

(ineffective assistance of counsel claims are subject, on § 33E 

review, to test "more favorable to a defendant" than that of 
20

3. Application. In view of the foregoing principles, we 

conclude that the motion judge made no significant error of law 

and that he did not abuse his discretion. See Commonwealth v. 

Wright, 469 Mass. 447, 461 (2014), quoting Commonwealth v. 

Weichell, 446 Mass. 785, 799 (2006).

The motion judge applied essentially the framework we have 

just described. He stressed that he was relying on the rule 

that a new trial may be ordered if "justice may not have been 

done." "Ultimately," the judge wrote, "the [m]otion raises the 

issue whether justice may not have been done, given the nearly 

unique facts of this case." The judge stated that, in 

addressing this issue, he drew "helpful guidance" from our 

decision in Lombardi, 378 Mass. at 616, in which we asked 

"whether a trial of the defendant would be unfair in a due 

process sense." The judge did not assume that the defendant is 

entitled to a perfect trial, but rather to one that is 

"fundamental[ly] fair[]." He noted also that "[i]t is not for a 

judge to say whether a reasonable doubt exists as to the fact or 

degree of [the defendant's] guilt after reweighing the evidence, 

 

Commonwealth v. Saferian, supra at 96, applied by postconviction 

judges). Nevertheless, where no more specific standard applies, 

judges' decisions as to whether justice may not have been done 

may benefit from consideration of whether it is possible to be 

"substantially confident" that "the jury verdict would have been 

the same" if not for a problem that occurred at trial, and from 

our cases answering that question in a variety of situations.
21

credibility and arguments in light of what we now know." These 

statements correctly describe the applicable law.

The decision that the judge was required to make was a 

difficult one. The "nature of the crime" with which the 

defendant was charged was heinous. See Lombardi, supra. There 

was no suggestion that the prosecution had provided imperfect

"disclosure of its case," or that it had engaged in any 

misconduct whatsoever. See id. Moreover, as the judge 

recognized, "the Commonwealth's case was strong, particularly 

regarding the defendant's motive and contacts with Foxworth."

The evidence about the nature of the defendant's 

arrangement with Foxworth was somewhat weaker, however. The 

Commonwealth's most direct evidence on this point was provided 

by Campbell, the defendant's coworker, who testified that the 

defendant eventually told her that "a beating wasn't enough," 

and that (in essence) it would be better if the victim were to 

die. Campbell was testifying pursuant to a grant of immunity, 

which might have led the jury to question her credibility. And 

as cross-examination revealed, she at first told police that the 

defendant had never said to her that he wanted the victim 

killed. In fact, Campbell did not inform police that the 

defendant had wanted Foxworth to kill the victim in any of her 

first three interviews with police, or in a twenty-two-page 

document that she wrote, after her third interview, detailing 
22

her discussions concerning Foxworth with the defendant.

The remainder of the evidence presented by the Commonwealth 

arguably was consistent with the defendant's own account. The 

jury could have accepted the defendant's explanation that his 

frequent conversations with Foxworth were not about a plot to 

kill the victim, but rather often concerned Foxworth's wishes 

that the defendant help him reconnect with Campbell, or the 

defendant's inquiries as to when Foxworth was planning to take 

action. Similarly, the jury could have believed that, in late 

December, 2005, and early January, 2006, the defendant had 

withdrawn from the agreement, as he claimed, and was seeking a 

refund of the money he had paid Foxworth. Moreover, they could 

have "believe[d] all, some, or none of the testimony of any 

witness," including the defendant. See Commonwealth v. Ortiz, 

470 Mass. 163, 167 (2014), quoting Commonwealth v. Gomes, 459 

Mass. 194, 203 (2011).

Under these circumstances, the likelihood that "[a] defense 

could be established" by the defendant, see Lombardi, 378 Mass. 

at 616, turned on whether the jury would believe the defendant's 

testimony that he had not asked Foxworth to kill the victim. 

Various aspects of a witness's testimony on the stand, including 

his demeanor, whether his answers are consistent with prior 

statements, and whether he appears to be avoiding the questions

asked, can affect the jury's determinations of credibility. See 
23

Commonwealth v. Louraine, 390 Mass. 28, 37-38 (1983). We agree 

with the motion judge's determination that, in essence, the 

"extent and effect" of the defendant's stroke materially 

affected his chances of mounting a successful defense. See 

Lombardi, supra.

The defendant's difficulty understanding questions and 

communicating answers on the second day of his testimony are 

apparent from the video recording and transcript of that day's 

proceedings. A few illustrations among many are reproduced in 

the margin.12 The written transcript attaches the annotation 

 

12 The cross-examination of the defendant on that day began 

as follows:

Q.: "I'd like to talk to you about your relationship with 

Scott Foxworth . . . . You met him prior to his going 

away to prison in August of 2002, isn't that correct?"

A.: "Can you ask that again please, I'm sorry."

Q.: "You first met Scott Foxworth prior to August of 2002 

when he went to prison for three years?"

A.: "I don't understand what you're asking me."

Q.: "You met Scott Foxworth prior to August of 2002?"

A.: "2002? No."

". . .

Q.: "So, the answer to [the] question, did you meet Scott 

Foxworth prior to him going away to prison in August 

of 2002, is, yes, right?"

A.: "Yeah, I'm sorry, Adrienne, I've got a headache."
24

"[sic]" to the defendant's testimony seventeen times; no such 

annotations appear in the transcription of his testimony on the 

previous day, either on direct examination or on crossexamination. Fifteen times, the defendant asked that a question 

be repeated, or expressed confusion about its meaning; this had 

happened once on the previous day. Almost three dozen times, 

the defendant responded to questions by saying that he did not 

know the answer; this, too, had happened once on the previous 

day. In other instances, the defendant appeared to answer an 

entirely different question from the one that had just been 

posed. Many of these exchanges could have suggested deliberate 

evasiveness to the jury.

13

 

On the crucial question of the instructions that he had 

given to Foxworth, the defendant's testimony was (on his second 

day of testimony) incoherent: "I didn't say I wanted him to get 

beat . . . . I didn't specifically tell Scott that I wanted him 

to beat him. I eventually discussed saying that I wouldn't mind 

seeing him get beat but that wasn't until afterward [sic] I had 

talked to him and told him that I just wanted him to go talk to 

him."

Later, asked about his finances, the defendant said: "I 

paid -- I was paying the mortgage. I was paying some expenses 

to pay expenses. I was paying the house in Waltham. I was 

giving my money some money."

13 Again, a small sample of exchanges is illustrative. 

First:

Q.: "[Y]ou knew that when the divorce was final that [the 

victim] would be able to have access to your children, 

correct?"
25

 

A.: "I don't understand."

". . .

Q.: "Did you testify yesterday that . . . you contacted 

Scott Foxworth because you didn't want Ed around your 

children until the divorce was final?"

A.: "My final wasn't until much, much, much later."

Q.: "Do you understand the question that I am asking, Mr. 

Brescia?"

A.: "I guess -- I guess I don't."

And subsequently:

Q.: "When did you, uh, give [Foxworth] the green light?"

A.: "Probably prior to [when Foxworth was in the 

hospital]. I remember he -- his surgically got 

delayed (sic)."

Q.: "So, was it before or after [an argument between the 

defendant and his wife] at the Framingham Union 

Hospital . . . ?"

A.: "Was what?"

Q.: "When you decided to give Scott Foxworth the green 

light?"

A.: "I don't know if it was before and (sic) after; I 

don't recall."

And finally:

Q.: "You said that . . . it had to do with the fact that 

[the victim] was seeing your kids during the pendency 

of the divorce, correct?"

A.: "I don't know."
26

The manner in which the prosecutor framed and delivered her 

questions on cross-examination suggested time and again that, in 

the prosecutor's view, the defendant was not answering her 

questions responsively. On one such occasion, when the 

defendant failed to provide an appropriate answer, the 

prosecutor said, "Wait. Did you testify here yesterday? Do you 

remember that?"

The inference that the pattern of the defendant's testimony

indicated prevarication was pressed more explicitly in the 

prosecutor's closing argument, delivered before the defendant's 

stroke was discovered. The prosecutor said:

"Let's look at the defendant's testimony. Make no 

mistake about it, he wasn't confused by the questions that 

were being asked him. He couldn't keep his story straight 

from one minute to the next. It's hard to keep track of 

what you're saying when you're just making it up as you go 

along . . . . He certainly was able to answer the questions 

his attorney asked him. Some of the questions I asked him, 

answers didn't come easy. To some of them, they didn't 

come at all."

 

Q.: "Well, I'm asking you about what you thought and what 

you felt and what you believed; you don't know what 

you thought, felt, or believed?"

A.: "What question?"

". . .

Q.: "[I]s it your testimony that your issues with [the 

victim] were over his access to your children during 

the divorce because he wasn't a suitable role model?"

A.: "What day? I don't know."
27

The prosecutor's argument also drew on the defendant's stated

inability to recall important details:

"[The defendant] didn't remember when he approached 

Foxworth. He didn't remember where he approached Foxworth. 

He didn't remember when he decided and he didn't remember 

when he paid the one half up front . . . . Is that 

believable?"

The trial judge's instructions would have permitted the 

jury to draw the inferences invited by the prosecutor. "In 

determining the credibility of a witness," the judge said, the 

jury could consider, among other things, "the demeanor of the 

witness as the witness spoke to you from the witness stand," as 

well as "the accuracy of the witness'[s] recollection and the 

degree of intelligence shown by the witness."

Again, the defendant's request for a new trial posed a 

close question. The Commonwealth had painstakingly presented a 

powerful case. The damage wrought by the defendant's stroke was 

concentrated primarily in the manner and style of his testimony, 

rather than its substance. Still, we do not think that the 

motion judge's conclusion that a new trial is warranted was an 

abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 

185 n.27 (2014). The fairness of the defendant's trial was 

hampered by an extraordinary confluence of factors: the second 

day of the defendant's testimony addressed issues that lay at 

the heart of the case against him. In the words of the motion 
28

judge, the symptoms of the defendant's stroke were severe enough 

on that day to injure his "apparent credibility for medical 

reasons unrelated to his actual credibility." Yet those 

symptoms were not of a kind that could have prompted the judge 

or the attorneys to postpone the remainder of the defendant's 

testimony. The defendant's symptoms also would not have 

communicated to the jury that his failure to answer questions 

cogently was the result of a physical impairment. The fact that 

the defendant had been healthy on his first day of testimony 

created what the jury could have seen as a suspicious contrast 

between the defendant's relative ease in answering his own 

attorney's questions and his greater difficulty in answering 

those posed by the prosecutor. Finally, it is not likely that 

these weaknesses in the defendant's testimony went unnoticed by 

the jury, given that they were highlighted by the prosecutor 

both during cross-examination and in closing argument.

In the highly unusual circumstances presented, there was no 

abuse of discretion in the judge's decision that "it appears 

that justice may not have been done."

Order allowing motion for

 a new trial affirmed.