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-408

COMMONWEALTH

vs.

ROLAND ELLISON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is the defendant's appeal from a Superior Court 

judge's 2022 order denying, without a hearing, the defendant's 

third motion for a new trial. In the motion, the defendant

primarily argued that his trial counsel had been ineffective; he 

also asserted a variety of pretrial and trial errors by the 

Commonwealth and the trial judge. Reviewing the order denying 

the motion for "a significant error of law or other abuse of 

discretion," we affirm. Commonwealth v. Grace, 397 Mass. 303, 

307 (1986).

Background. The defendant's appeal from his 2012 

conviction of assault and battery on a correctional officer, and 

his appeal from the order denying his first motion for a new 

trial were consolidated for appellate purposes. In an 

unpublished decision, a different panel of this court rejected 
2

the defendant's claim of ineffective assistance of trial counsel 

and thus affirmed the conviction and the order denying his 

motion for a new trial. Commonwealth v. Ellison, 87 Mass. App. 

Ct. 1128 (2015). In 2017, the defendant filed his second motion 

for a new trial, again asserting ineffective assistance of trial 

counsel. The trial judge denied that motion, and a different 

panel of this court, in a second unpublished decision, affirmed 

that order. Commonwealth v. Ellison, 94 Mass. App. Ct. 1103

(2018).

Discussion. 1. Ineffective assistance. In his third 

motion for a new trial, the defendant argued that trial counsel 

was ineffective because counsel assertedly (1) failed to hire 

and call an independent defense expert on competence to stand 

trial; (2) failed to investigate and argue a defense of lack of 

criminal responsibility (including by failing to appeal from the 

order denying the defendant's motion for an additional 

competency examination); and (3) failed to assert a "blind rage"

defense based on the defendant's state of mind during the crime.1 

To prevail on a claim of ineffective assistance of counsel, a 

defendant must establish that counsel's performance fell 

"measurably below that which might be expected from an ordinary 

fallible lawyer" and "likely deprived the defendant of an 

1 This claim was also asserted against prior appellate counsel.
3

otherwise available, substantial ground of defence." 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 

Here, the defendant failed to make any argument in his 

motion, let alone establish, that counsel's performance had 

deprived him of an otherwise available, substantial ground of 

defense. The furthest the defendant went in this regard was to 

assert, in conclusory fashion and without citing any supporting 

evidence, that counsel's failure to hire an independent expert 

on the defendant's mental health issues "denied [him] an 

otherwise available defense." The defendant did nothing to show 

that he had a meritorious argument of incompetence to stand 

trial or a meritorious defense of lack of criminal 

responsibility. Nor did the defendant assert or establish that 

a "blind rage" defense would have accomplished any more for him 

than the trial strategy counsel pursued, which was to argue that 

the defendant attacked the correctional officer after becoming 

enraged by derogatory remarks the officer made about the 

defendant's mother, who had recently passed away. Accordingly, 

the motion judge did not abuse his discretion in rejecting the 

defendant's claims of ineffective assistance of counsel. See 

Grace, 397 Mass. at 307.

2. Other claims. The defendant also asserted in his 

motion, again in conclusory fashion, that the trial judge erred 

in (1) admitting and considering Dr. Frank Wilson's report on 
4

the defendant's mental health; (2) denying the defendant's 

motion for funds and ordering an "[u]nconstitutional mental 

health . . . examination"; and (3) failing to inform the 

defendant and his counsel of how the defendant was going to be 

evaluated and of the right to appeal from the order denying the 

motion for funds for an independent expert. The defendant 

further asserted in his motion that the verdict was "against the 

[w]eight of the [e]vidence," and the prosecutor "sold" the grand 

jury "[s]hoddy [m]erchandi[s]e" and "went along with" the 

inaccurate testimony of a psychiatrist.2

None of these arguments were supported by citations to the 

record or any relevant legal authority. On appeal, moreover, 

the defendant's vague and scattered assertions on these issues 

do not constitute acceptable appellate argument. See Mass. 

R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). 

See also Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 

678, 683 n.8 (2020); Commonwealth v. Gaudette, 56 Mass. App. Ct. 

494, 502 n.8 (2002) (defendant's "fleeting assertions" of error 

in denial of motion for new trial did "not rise to the level of 

appellate argument within the comprehension of Mass. R. A. P. 

16"). We need not address them further, except to say that we 

2 The defendant makes an additional argument in his brief, not 

raised below, that he was, in some unspecified way, denied the 

equal protection of the laws.
5

see no abuse of discretion in the motion judge's decision not to 

order a new trial on these grounds.3 See Grace, 397 Mass. at 

307.

3. Evidentiary hearing. The defendant also challenges the 

denial of his request for an evidentiary hearing on his motion. 

However, the defendant did not submit a new affidavit in support 

of his motion4 and did not identify any particular issue on which 

an evidentiary hearing would be helpful. "It was not error for 

the judge who denied the motion for a new trial also to deny the 

defendant an evidentiary hearing on that motion; the defendant's 

submissions raised no substantial issues." Commonwealth v. 

Scoggins, 439 Mass. 571, 578 (2003).

Order dated April 6, 2022, 

denying motion for new 

trial, affirmed.

By the Court (Sacks, Shin & 

D'Angelo, JJ.5),

Clerk

Entered: August 3, 2023.

3 In addition, where the defendant has not shown any error at 

trial, his argument of cumulative error has no merit. See 

Commonwealth v. Garcia Brito, 402 Mass. 761, 767-768 (1988) (no

cumulative error where defendant's individual claims of error 

fail). 4 He only submitted a copy of a 2012 affidavit from counsel in 

support of his motion for additional examination.

5 The panelists are listed in order of seniority.