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

23-P-413

COMMONWEALTH

vs.

LAMONT JOHNSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of five 

crimes, including aggravated rape and abuse of a child, and 

assault and battery by means of a dangerous weapon upon a child 

under the age of fourteen.1 On appeal, the defendant argues that 

the judge abused his discretion in denying his motion for a new 

trial without an evidentiary hearing.2 Without expressing any 

view of whether the defendant's motion for a new trial 

ultimately should be granted, we conclude that the defendant 

1 Specifically, the convictions were of three counts of 

aggravated rape and abuse of a child, in violation of G. L. 

c. 265, § 23A, and four counts of assault and battery by means 

of a dangerous weapon upon a child under the age of fourteen, in 

violation of G. L. c. 265, § 15A (c) (iv). The defendant was 

acquitted of five related charges.

2 The appeal from the convictions was consolidated with the 

appeal from the denial of the defendant's motion for a new 

trial. On appeal, the defendant only challenges the denial of 

his motion for a new trial.
2

raised a substantial issue warranting an evidentiary hearing. 

We therefore vacate the order denying the motion for a new trial 

and remand the matter to the Superior Court for further 

proceedings consistent with this memorandum and order.

Background. 1. The Commonwealth's case. Two children, 

whom we call Shaun and Colin, testified that the defendant, at 

various times, abused them both sexually and physically when 

they were between the ages of seven and eight, when the 

defendant was living with Shaun and his family. At the time of 

trial, Shaun was thirteen years old and Colin was twelve years 

old.

According to Shaun, after he broke a glass light protector 

in his sister's room, the defendant used a shard of the broken 

glass to cut Shaun's bare buttocks as punishment. The defendant 

also hit Shaun in the same area with a stick. At a different 

time, the defendant forced Shaun to perform oral sex on him 

while Shaun was kneeling on the floor and the defendant was 

sitting on the bed. Shaun also testified that the defendant 

forced him to perform anal sex on the defendant.

Colin was a friend of Shaun who would come over to his 

apartment several times per week. Colin testified that the 

defendant would sometimes punish Colin by hitting him on the 

bare buttocks with a stick. Both Shaun and Colin stated that 
3

the defendant forced Shaun and Colin to perform oral sex on one 

another.

In 2016, after Shaun's mother obtained a restraining order 

against the defendant and the defendant left the home, Shaun

disclosed to his mother some of the abuse perpetrated by the 

defendant. However, when asked by the police, during the

subsequent investigation in 2017, about being touched by the 

defendant, Shaun stated that he did not want to remember. No 

criminal charges were filed at that time. Colin testified that 

sometime between 2017 and 2019, after learning that the 

defendant was no longer living in Shaun's home, he disclosed the 

acts that the defendant had done to him.

Shaun also testified at trial that he had observed the 

defendant sexually abuse Erik3, another child friend of his. 

Erik refused to participate in a forensic interview.

At trial, Dr. Stephanie Block, a research psychologist

specializing in child abuse, testified as an expert for the 

Commonwealth. Dr. Block testified that children may disclose 

sexual abuse immediately, delayed, partially, or not at all.4 

3 A pseudonym.

4 The Commonwealth filed a motion in limine to admit the 

testimony of Dr. Block. The Commonwealth proffered Dr. Block to 

assist the jury in understanding "[w]hy a child might delay in 

disclosing sexual abuse" when that might seem "discordant with 

common sense." The judge allowed the Commonwealth's motion.
4

Dr. Block testified that different factors affect a child's 

disclosure such as the age of the child, shame and 

embarrassment, consequences of their disclosure, relationship to 

the perpetrator, and whether the perpetrator has threatened the 

child. Dr. Block also educated the jury as to memory formation. 

She testified that when an event is traumatic, individuals may 

remember "central" details better than "peripheral" details. 

She explained that, during a stressful moment, a person will 

focus on what is centrally important to that person, at the 

potential cost of other details that one might otherwise expect 

them to remember. On cross-examination, Dr. Block conceded that 

children sometimes lie about being victims of childhood sexual 

assault.

2. The defendant's case. The defendant's trial counsel 

impeached Shaun by bringing the jury's attention to numerous 

discrepancies between Shaun's trial testimony and his prior 

statements. These inconsistencies included the number of times 

the defendant struck Shaun with the stick and cut him with 

glass, whether Shaun's mother was present during the incident, 

and the number of times Shaun claimed he and Colin were abused 

together. Trial counsel impeached Colin by pointing out several 

inconsistencies between his trial testimony and his prior 

statements. Additionally, Erik testified that the defendant 
5

never sexually abused him and that he never saw the defendant 

abuse Shaun. 

3. Closing arguments. In his summation, defense counsel 

argued that Shaun and Colin were lying. He pointed out their 

trial testimony's inconsistencies and how their version of 

events changed over time. Defense counsel suggested that the 

children may have lied to assist Shaun's mother in obtaining a 

restraining order against the defendant or for a reason that 

only Shaun and Colin know. Defense counsel never attempted to 

explain or put into context any of Dr. Block's testimony.

In her closing, the prosecutor argued that Dr. Block's 

testimony regarding traumatic memory formation could explain the 

inconsistencies in Shaun's testimony about the defendant cutting 

him with glass and regarding the anal sex. She asked the jury 

to consider Dr. Block's testimony that the important facts of 

the children's testimony were "central details" to them while

others were not. The prosecutor also attempted to explain the 

children's failure to disclose details at their initial 

interviews by reminding the jury of Dr Block's testimony. She 

stated that in deciding the credibility of Shaun, they should 

utilize Dr. Block's testimony and "[l]ook at [the situation]

through the lens of Dr. Block and what she told you about 

victims of child sexual assault and trauma. . . ."
6

4. Motion for a new trial. The defendant filed a motion 

for a new trial alleging that trial counsel's failure to file a 

motion for funds and failure to consult with an expert to 

counter the Commonwealth's expert constituted ineffective 

assistance. In support of his motion, the defendant submitted 

affidavits by trial counsel and Dr. Heather Price, an expert in 

memory and child sexual abuse.

Trial counsel averred that he did not file a motion for 

funds to hire an expert in the field of child sexual abuse 

disclosures to consult with, despite knowing that the 

Commonwealth intended on calling an expert in the field of child 

sexual abuse disclosures and memory. Trial counsel had reviewed 

a prior transcript of Dr. Block's testimony and her written 

publications, and based on this, trial counsel "did not believe 

that any expert would be able to credibly refute the general 

principles that Dr. Block was expected to testify to."

In her affidavit, Dr. Price averred that children do 

sometimes make false disclosures, that memories are prone to 

error, and that there are various factors that can lead to false 

disclosures and false memories. For example, a child may be 

pressured into making a false disclosure by suggestive 

questioning or internal motivations. She also noted there are 

documented cases where children have lied about abuse to "obtain 

secondary benefits or avoid unwanted contact with an adult."
7

Dr. Price opined that Dr. Block's trial testimony about 

traumatic memory was incomplete, in part because it did not 

reference the fact that stress sometimes will enhance memory and 

sometimes will impair memory. She also explained that not all 

children experience abuse as traumatic because the child may not 

understand the abuse at the time. She testified that "the 

abusive acts may [instead] be experienced as odd, confusing, or 

comfortable, but not traumatic."

The motion judge, who was also the trial judge, denied the 

defendant's motion for a new trial without an evidentiary 

hearing "because the defendant's motion fail[ed] to raise a 

substantial issue."

Discussion. "We review a judge's decision to deny a motion 

for a new trial without holding an evidentiary hearing for a 

significant error of law or other abuse of discretion" 

(quotation and citation omitted). Commonwealth v. Upton, 484 

Mass. 155, 162 (2020). "We afford particular deference to a 

decision on a motion for a new trial based on claims of 

ineffective assistance where the motion judge was, as here, the 

trial judge". Commonwealth v. Martin, 467 Mass. 291, 316

(2014). "Although a defendant's motion and affidavits need not 

prove the issue raised, to be adequate they must at least 

contain sufficient credible information to cast doubt on the 

issue" (quotations and citation omitted). Commonwealth v. Lys, 
8

481 Mass. 1, 5 (2018). An evidentiary hearing should be 

conducted "where a substantial issue is raised and is supported 

by a substantial evidentiary showing." Commonwealth v. Stewart, 

383 Mass. 253, 260 (1981). See Commonwealth v. Drayton, 473 

Mass. 23, 36-38 (2015) (substantial issue raised regarding

admission of witness's affidavit that directly contradicted 

incriminating testimony by purported eyewitness).

To prevail on a motion for a new trial based on a claim of 

ineffective assistance of counsel, the defendant bears the 

burden to show that the "behavior of counsel f[ell] measurably 

below that which might be expected from an ordinary fallible 

lawyer" and that such failing "likely deprived the defendant of 

an otherwise available, substantial ground of defence." 

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

tactics which may appear questionable from the vantage point of 

hindsight, do not amount to ineffective assistance unless 

manifestly unreasonable when undertaken" (quotation and citation 

omitted). Commonwealth v. Haley, 413 Mass. 770, 777-778 (1993). 

One situation where prejudice can be shown is where expert 

testimony "is necessary to rebut critical expert testimony 

relied upon by the Commonwealth." Commonwealth v. Jacobs, 488 

Mass. 597, 606 (2021), citing Commonwealth v. Millien, 474 Mass. 

417, 429-434 (2016).
9

1. Trial counsel's performance. In this case, the judge 

found that there was no basis for finding that trial counsel's 

behavior fell measurably below that of an ordinary, fallible 

lawyer because:

"The defendant's theory at trial was that the victims lied 

to help their mother retain custody of them. Although 

ultimately unsuccessful as to some of the charges, this 

theory was plausible and was, in my view, the best theory 

of defense given the evidence. The testimony or assistance 

of an expert would have done little, if anything, to aid 

defense counsel in advancing this theory."

The Commonwealth argues that trial counsel's failure to retain 

funds to hire an expert and his decision not to call an expert 

were "strategic decision[s]" because he "reasonably believed 

that [an] expert could not credibly refute the general 

principles to which he expected [the Commonwealth's expert] to 

testify."

We fail to see, upon the materials submitted with the 

motion for a new trial, how trial counsel's failure to 

investigate an expert who could refute the Commonwealth's expert 

could constitute a strategic decision. "Defense counsel has a 

professional obligation to investigate all potential substantial 

defenses. The extent of investigation required to explore each 

potential defense depends on the strength of that defense 

relative to the availability and strength of other potential 

defenses" (citations omitted). Commonwealth v. Epps, 474 Mass. 

743, 758 (2016). Here, defense counsel's review of Dr. Block's
10

prior trial testimony and publications about disclosure seems to 

be an incomplete investigation. He lacked the subject matter 

expertise necessary to credibly conclude that Dr. Block's 

opinions could not be refuted, and not doing any type of 

investigation into a child sexual abuse expert could be behavior 

that falls below what would be expected from a reasonably 

prudent defense attorney. 

Trial counsel's strategy was to challenge the credibility 

of the two child victims. He pointed out numerous 

inconsistencies between their trial testimony and prior 

statements. However, Dr. Block offered potential explanations 

as to why the children's memory issues did not necessarily 

suggest that they were lying. If Dr. Price had been called as a 

witness, the defendant would have been able to rebut with expert 

testimony the Commonwealth's argument regarding the credibility 

of the children.

We conclude that the defendant's motion for a new trial and 

accompanying affidavits demonstrated a substantial issue: 

whether trial counsel should have filed a motion for funds to 

find an expert to investigate Dr. Block's assertions regarding 

memory and child sexual abuse. Because his failure to file such 

a motion and consult with an expert could be manifestly 

unreasonable, an evidentiary hearing was required to gauge the 
11

credibility of trial counsel's assertions and Dr. Price's 

potential testimony.

2. Prejudice to the defendant. Turning to the second 

prong of the Saferian test, we consider whether appellate 

counsel has supplied sufficient evidence for us to conclude that 

trial counsel's failure to seek funds to retain an expert 

witness prejudiced the defendant. "[W]here counsel was 

ineffective for failing to present an available ground of 

defense, that defense is 'substantial' for Saferian purposes 

where we have a serious doubt whether the jury verdict would 

have been the same had the defense been presented. The 

defendant need not prove that he or she would have been found 

not guilty if defense counsel had presented the jury with this 

ground of defense." Millien, 474 Mass. at 432-433.

Based on the affidavit of Dr. Price, the defendant could 

have challenged Dr. Block's expert opinion regarding childhood 

traumatic memory formation and rebutted the Commonwealth's 

multiple arguments as to why the children made inconsistent 

statements. The opinion testimony of a defense expert could 

potentially have influenced the jury's evaluation of whether the 

Commonwealth had shown that the children were telling the truth 

about the allegations. Although it is true that defense counsel 

did challenge the veracity of the children's testimony by 

pointing out inconsistencies, the judge, without hearing the 
12

testimony of Dr. Price, could not have ascertained whether the 

defendant had met his burden of proving the second prong of 

Saferian.

We acknowledge that a judge has discretion in deciding 

whether to hold an evidentiary hearing. See Commonwealth v. 

Meggs, 30 Mass. App. Ct. 111, 114 (1991). A judge also has 

discretion in deciding whether to discredit affidavits submitted 

in support of a motion for a new trial. Commonwealth v. Vaughn, 

471 Mass. 398, 405 (2015). Although we express no view as to 

the ultimate outcome of the defendant's motion for a new trial, 

we conclude that an evidentiary hearing was required. We 

accordingly vacate the order denying the defendant's motion for 

a new trial, and remand the matter to the Superior Court for 

proceedings consistent with this memorandum and order.

So ordered.

By the Court (Wolohojian, 

Milkey & D'Angelo, JJ.5),

Assistant Clerk

Entered: February 1, 2024.

5 The panelists are listed in order of seniority.