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-538

COMMONWEALTH

vs.

BRIAN K. JOYCE, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was tried and convicted in the Boston 

Municipal Court on a charge of distribution of a class B 

controlled substance, in violation of G. L. c. 94C, § 32A. While 

his direct appeal was pending, he moved unsuccessfully for a new 

trial on the basis of ineffective assistance of counsel. In 

this consolidated appeal he raises claims based principally on 

the latter. Like the motion judge, we discern no basis for 

relief, and affirm the conviction and the order denying the 

motion for a new trial. We address the defendant's several 

claims in turn.

1. The defendant first contends that trial counsel was 

constitutionally ineffective for attempting to create reasonable 

doubt by eliciting evidence that police observed the defendant 

engage in three encounters preceding the encounter giving rise 
2

to the charged offense that appeared visually similar, if not 

identical, from the perspective of the observing officer. The 

defendant asserts that this evidence tended to suggest that the 

defendant was a serial drug dealer, and cast the defendant as a 

bad actor. However, trial counsel's express strategy was to 

suggest that none of the encounters was a drug sale, and to 

point to the absence of currency from the preceding encounters 

to suggest that the Commonwealth's version of events was not 

credible.1 Trial counsel's strategy was not manifestly 

unreasonable, and indeed sought to offer an alternative innocent 

explanation for an encounter the police witness described as 

consistent with a hand-to-hand drug sale. That trial counsel's 

strategy was unsuccessful does not mean that it was unreasonable 

1 When apprehended, the defendant had one twenty dollar bill in 

his possession. Trial counsel argued that if each observed 

encounter had been a drug sale the defendant should have had 

multiple bills in his possession, and that in any event 

possession of twenty dollars in cash was insufficient to prove 

the defendant was selling drugs. The defendant's criticism on 

appeal of trial counsel's failure to elicit evidence of the 

street value of "crack" cocaine is unavailing. To begin with, 

the police offered no testimony that they witnessed the 

defendant making change during any of the observed encounters, 

leaving trial counsel free to suggest that the single bill in 

the defendant's possession was inconsistent with four encounters 

identical to the one police contended was a drug sale. In any 

event, the record on the new trial motion offers no evidence 

concerning what an attempt to elicit evidence of value would 

have produced, making any suggestion it would have been helpful 

rest on speculation.
3

–- much less manifestly so. See Commonwealth v. Denson, 489 

Mass. 138, 152 (2022).

2. Prior to trial the defendant moved in limine to exclude 

evidence of his statement, at the time of his arrest, that "this 

isn't my first time being arrested on drugs." The statement was 

admissible as the statement of a party, see Mass. G. Evid. 

§§ 801(d)(2), 404(b) (2023). Contrary to the defendant's 

contention on appeal, the trial judge did not abuse discretion 

in concluding that the evidence was admissible to show his 

knowledge of the charged conduct, and not inadmissible as 

propensity evidence.2 In any event, the trial judge refused to 

allow certain more prejudicial portions of the statement into

evidence, the trial prosecutor placed little emphasis on the 

admission in her closing, and the evidence of the defendant's 

guilt was substantial.

3. Finally, we reject the defendant's contention that the 

evidence at trial was insufficient to support the defendant's 

conviction.3 Even standing alone, the police officer's 

2 Among other things, the evidence tended to support the 

Commonwealth's suggestion that the absence of other drugs in the 

defendant's possession at the time of his arrest could have been 

the result of the defendant's decision to swallow other packets 

held in his mouth for sale, based on his familiarity with the 

arrest process.

3 As framed on appeal, the argument suggests that "but for" the 

testimony of the three prior encounters elicited by the 

defendant's trial counsel, the evidence did not support the 

conviction. If successful, the argument would support a new 
4

observation of the defendant spitting out a small bag from his 

mouth and handing it to a person in exchange for what appeared 

to be currency, followed a short time later by the apprehension 

of the other person in possession of a small bag that tested 

positive for "crack" cocaine and the recovery from the defendant 

of a twenty dollar bill, when viewed in the light most favorable 

to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 

671, 676-677 (1979), was sufficient to establish that the 

defendant sold drugs to the other person.

Judgment affirmed.

Order denying motion for new 

trial affirmed.

By the Court (Green, C.J., 

Shin & Hodgens, JJ.4),

Clerk

Entered: August 21, 2023.

trial, and not a judgment of dismissal, since we assess the 

sufficiency of the evidence introduced at trial, including even 

evidence that was introduced in error. See Commonwealth v. 

Mauricio, 477 Mass. 588, 597 (2017). 4 The panelists are listed in order of seniority.