favorable standard in Massachusetts

2015“Under this more favorable standard of review, we consider a defendant’s claim even if the action by trial counsel does not ‘constitute conduct falling “measurably below” that of an “ordinary fallible lawyer.” ’ ” Commonwealth v. Williams, 453 Mass. 203, 205 (2009), quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992).

2015"Under this more favorable standard of review, we consider a defendant's claim even if the action by trial counsel does not 'constitute conduct falling "measurably below" that of an "ordinary fallible lawyer."'" Commonwealth v. Williams, 453 Mass. 203, 205 (2009), quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992).

2021"Because the defendant was convicted of murder in the first degree, rather than evaluating claims of ineffective assistance under the traditional standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we apply instead the more favorable standard of G.

2018Because the defendant was convicted of murder in the first degree, rather than evaluating claims of ineffective assistance under the traditional standard of Commonwealth v. Saferian , 366 Mass. 89 , 96, 315 N.E.2d 878 (1974), 13 we apply instead the more favorable standard of G.

2015And so, I wasn’t pressing him and asking for details and engaging him in that conversation.” As we have said, the more favorable standard of review articulated in Commonwealth v. Wright, 411 Mass. at 682 , applies where the defendant has been convicted of murder in the first degree and asserts a claim of ineffective assistance of counsel.

2015It was eminently reasonable to consider, regardless of the possibility of a favorable expert opinion that the defendant lacked criminal responsibility, the inherent difficulty in persuading a jury of the merits of that defense as 17 As we have said, the more favorable standard of review articulated in Commonwealth v. Wright, 411 Mass. at 682 , applies where the defendant has been convicted of murder in the first degree and asserts a claim of ineffective assistance of counsel.

2009“A strategic decision by an attorney, however, amounts to ineffective assistance ‘only if it was manifestly unreasonable when made.’ ” Commonwealth v. Williams, supra, quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999). (i) Ineffective assistance at suppression hearing.

2009A strategic decision by an attorney, however, amounts to ineffective assistance “only if it was manifestly unreasonable when made.” Commonwealth v. Coonan, 428 Mass. 823, 827 (1999), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). 1.

2023"Even on the more favorable standard of review under § 33E, a claim of ineffective assistance based on failure to use particular impeachment methods is difficult to establish." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001).

2023This argument is unavailing. 21 As an initial matter, "[e]ven [using] the more favorable standard of review under § 33E, a claim of ineffective assistance based on failure to use particular impeachment methods is difficult to establish." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001).

2024L. c. 278, § 33E, and review the defendant's claim for a substantial likelihood of a miscarriage of justice." Gibson, supra. Specifically, we consider "'whether defense counsel committed an error in the course of trial,' and if there was error . . . 'whether it was likely to have influenced the jury's conclusion.'" Id., quoting Commonwealth v. Ayala, 481 Mass. 46, 62 (2018).22 "Where a defendant challenges tactical or strategic decisions by trial counsel, the court will find ineffective assistance 'only if such a decision was manifestly unreasonable when made.'" Commonwealth v. Weaver, 474 Mas

2024L. c. 278, § 33E, and review the defendant's claim for a substantial likelihood of a miscarriage of justice." Gibson, supra. This standard requires us to determine "'whether defense counsel committed an error in the course of trial,' and if there was error . . . 'whether it was likely to have influenced the jury's conclusion.'" Id., quoting Commonwealth v. Ayala, 481 Mass. 46, 62 (2018).

2009A strategic decision by an attorney, however, amounts to ineffective assistance “only if it was manifestly unreasonable when made.” Commonwealth v. Coonan, 428 Mass. 823, 827 (1999), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). 1.

2008A strategic decision by an attorney, however, amounts to ineffective assistance “only if it was manifestly unreasonable when made.” Commonwealth v. Coonan, 428 Mass. 823, 827 (1999), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

2015“Under this more favorable standard of review, we consider a defendant’s claim even if the action by trial counsel does not ‘constitute conduct falling “measurably below” that of an “ordinary fallible lawyer.” ’ ” Commonwealth v. Williams, 453 Mass. 203, 205 (2009), quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992).

2015"Under this more favorable standard of review, we consider a defendant's claim even if the action by trial counsel does not 'constitute conduct falling "measurably below" that of an "ordinary fallible lawyer."'" Commonwealth v. Williams, 453 Mass. 203, 205 (2009), quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992).

2006This is a more favorable standard to a defendant than the situation where either no request has been made by a criminal defendant, or it has been made in such generalized terms that the prosecution cannot be deemed to have been put on notice of a defense request for a particular piece of evidence. 13 Commonwealth v. Tucceri, 412 Mass. at 413 . 14 See Commonwealth v. Daniels, 445 Mass. at 404 n.23 (explaining different standards of review in case such as this).

2006When a new trial motion is constitutionally based, as is the case here, a reviewing court “will exercise its own independent judgment on the ultimate factual as well as legal conclusions.” Commonwealth v. Tucceri, 412 Mass. at 409 .

2023See Vinnie, supra. Under this more favorable standard, we presume prejudice when faced with a constitutional violation, and such prejudice can be overcome only where the Commonwealth makes an affirmative showing that the error is harmless beyond a reasonable doubt.

2000You must be very analytical, objective, focused, and decide this case on the facts as you determine them to be, applying this law I give you to those facts.” Relying on Commonwealth v. Vinnie, 428 Mass. 161 , 172 & n.14, cert. denied, 525 U.S. 1007 (1998), the defendant urges this court to review the remarks under a more favorable standard because he asserts that any further objection would have been futile.

2016We review the denial of a motion for a new trial for “ ‘a significant error of law or other abuse of discretion,’ Common *430 wealth v. Forte, 469 Mass. 469, 488 (2014), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting ‘special deference’ to the rulings of a motion judge who, like the judge here, also presided at trial.” Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015). “ ‘In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance.’ Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). ‘Even on the more favorable standa

2014Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). “[A]bsent counsel’s failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury’s conclusion.” Fisher, supra. The defendant has failed to meet his burden.

2011The futility exception was applied in Commonwealth v. Vasquez, supra, only to preserve a more favorable standard of review for a defendant whose conviction was not yet final when Melendez-Diaz was decided.

2010In any event, in its recent decision, Commonwealth v. Vasquez, 456 Mass. 350, 356-359 (2010), the Supreme Judicial Court held that even unpreserved errors based on Melendez-Diaz are entitled to the more favorable standard of review.

2000To determine whether an error created a substantial risk of a miscarriage of justice, “we consider the strength of the Commonwealth’s case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the [jury’s] result might have been otherwise but for the error,’ Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), and whether it can be inferred ‘from the record that counsel’s failure to object was not simply a reasonable tactical

1999The defendant argues that, even though he did not object to any of the contemporaneous instructions, he qualifies for the favorable standard of review for objected-to trial errors, see Commonwealth v. Alphas, 430 Mass. 8 , 13 n.7 (1999), by virtue of his objection to the testimony of the third fresh complaint witness, Officer Connolly.

1998See Commonwealth v. Gajka, 425 Mass. 751, 753 (1997); Commonwealth v. Mello, supra at 391-392 ; Commonwealth v. Simmons, 417 Mass. 60, 70-71 (1994).* **** 6 3.

1997Commonwealth v. Mello, supra at 393.

2026This is primarily because the plaintiff's offer of proof failed to establish that the defendants' performance "did not conform to good medical practice." Bennett, 496 Mass. at 742, quoting Kapp v. Ballantine, 380 Mass. 186, 193 (1980).

2025Iannacchino, 451 Mass. at 636 (quotation and citation omitted).

2024L. c. 278, § 33E, and review the defendant's claim for a substantial likelihood of a miscarriage of justice." Gibson, supra. Specifically, we consider "'whether defense counsel committed an error in the course of trial,' and if there was error . . . 'whether it was likely to have influenced the jury's conclusion.'" Id., quoting Commonwealth v. Ayala, 481 Mass. 46, 62 (2018).22 "Where a defendant challenges tactical or strategic decisions by trial counsel, the court will find ineffective assistance 'only if such a decision was manifestly unreasonable when made.'" Commonwealth v. Weaver, 474 Mas

2024L. c. 278, § 33E, and review the defendant's claim for a substantial likelihood of a miscarriage of justice." Gibson, supra. Specifically, we consider "'whether defense counsel committed an error in the course of trial,' and if there was error . . . 'whether it was likely to have influenced the jury's conclusion.'" Id., quoting Commonwealth v. Ayala, 481 Mass. 46, 62 (2018).22 "Where a defendant challenges tactical or strategic decisions by trial counsel, the court will find ineffective assistance 'only if such a decision was manifestly unreasonable when made.'" Commonwealth v. Weaver, 474 Mas

2023"Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations, to which we will, even on § 33E review, still show deference." Id. "[A]bsent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." Moore, supra, quoting Commonwealth v. Garvin, 456 Mass. 778, 792 (2010).

2023See Tyree, supra at 701 . 17 Therefore, where the erroneous exclusion of the defendant from these particular sidebar conferences would not have altered the outcome, this trial error was harmless beyond a reasonable doubt and does not warrant reversal.14 2.

2017L. c. 278, § 33E, "we need not focus on the adequacy of trial counsel's performance." Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). 6 (2010); Commonwealth v. Francis, 432 Mass. 353, 364-365 (2000).

2017See Commonwealth v. Beneche, 458 Mass. 61 , 76 1 Because this is a capital case on direct appeal, the defendant is entitled to a more favorable standard than the constitutional standard for measuring ineffective assistance claims articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), i.e., "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwis

2016We review the denial of a motion for a new trial for “ ‘a significant error of law or other abuse of discretion,’ Common *430 wealth v. Forte, 469 Mass. 469, 488 (2014), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting ‘special deference’ to the rulings of a motion judge who, like the judge here, also presided at trial.” Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015). “ ‘In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance.’ Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). ‘Even on the more favorable standa

2016We review the denial of a motion for a new trial for “ ‘a significant error of law or other abuse of discretion,’ Common *430 wealth v. Forte, 469 Mass. 469, 488 (2014), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting ‘special deference’ to the rulings of a motion judge who, like the judge here, also presided at trial.” Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015). “ ‘In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance.’ Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). ‘Even on the more favorable standa