COMMONWEALTH v. LAMONT JOHNSON (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant, Lamont Johnson, on three indictments charging rape and abuse of a child, aggravated by age difference, see G. L. c. 265, § 23A, and four indictments charging assault and battery by means of a dangerous weapon (ABDW) on a child, see G. L. c. 265, § 15A (c) (iv). The defendant moved for a new trial, alleging ineffective assistance of counsel. The trial judge denied the motion without an evidentiary hearing. A panel of this court reversed and remanded the motion for an evidentiary hearing, see Commonwealth v. Johnson, 103 Mass. App. Ct. 1121 (2024) (unpublished memorandum and order pursuant to Appeals Court Rule 23.0), after which a second judge (motion judge) denied the motion and the defendant again appealed. We affirm.

Background. In 2019, two boys disclosed that the defendant had sexually and physically abused them multiple times. One victim was Shaun,¹ who lived with his mother and the defendant, who were then in a domestic partnership, and two younger children of the defendant and Shaun's mother. The other victim was Colin, a friend of Shaun who visited Shaun's apartment frequently. The incidents occurred between 2013 and 2016, when the boys were between the ages of six and eight. The jury found the defendant guilty of one charge of rape and three charges of ABDW involving Shaun and two charges of rape and one charge of ABDW involving Colin. The jury acquitted the defendant of five other charges.²

The defendant moved for a new trial on the ground that trial counsel had been ineffective for failing to seek funds for or consult with an expert “in memory and childhood disclosures of sexual abuse” to challenge the Commonwealth's expert, Dr. Stephanie Block, who testified about the “dynamics of sexual abuse, reasons why victims may delay their disclosure, the formation of memory in child trauma situations, and factors that would lead a child ultimately to make a disclosure.” In accordance with the remand order, the motion judge held an evidentiary hearing.

At the hearing, the defendant called his own expert in children's memory and disclosure of sexual abuse, Dr. Heather Price, who testified that although Dr. Block represented the issues accurately at trial, her testimony and trial counsel's cross-examination did not fully “address the possibility of false disclosures,” omitting an “important counterbalance” to the prosecution's theory of the case. Dr. Price described the three scenarios in which a child may make a false accusation of abuse: the child develops a false memory of abuse; the child claims abuse in an unconscious effort to please others; or, in the rare case, the child deliberately lies about having suffered abuse to punish someone or to reach some other desired outcome. Dr. Price also testified that Dr. Block's testimony about traumatic memory formulation might have erroneously led the jury to believe that memory of traumatic events is superior to memory of nontraumatic events.

The defendant's trial counsel also testified at the evidentiary hearing. He stated that the defendant's case was his first child sexual assault case and that he had never before worked with an expert in childhood sexual assault disclosure. At no point did trial counsel seek funds for an expert to consult on trial strategy or to testify, although he did consult extensively with an experienced defense attorney, his mentor for court-appointed cases. He explained that he had considered and rejected a “false memory” theory of defense because “it would be a hard sell to a jury to suggest that two different individuals develop ․ substantially the same false memory simultaneously.” Instead, he adopted the “much more straightforward” theory that the children had been coached by the defendant's girlfriend to deliberately lie about being abused so that she could gain leverage in child custody and other court proceedings against the defendant. Accordingly, trial counsel's primary goal on cross-examination was not to challenge Dr. Block's testimony or the delayed disclosure, but to highlight the possibility that the children had lied about the abuse.³

The motion judge denied the motion, finding that trial counsel's decision to pursue a “deliberate lie” theory of defense, and to evaluate and cross-examine the Commonwealth's expert to advance this theory, was not manifestly unreasonable. Having determined that trial counsel's performance was not constitutionally defective, the judge did not address prejudice.

Discussion. “[W]e review a judge's denial of a defendant's motion for a new trial to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Caldwell, 487 Mass. 370, 374 (2021). “When, as here, the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

“Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008). Ineffectiveness has two components: first, “behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” and second, that such behavior “has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant argues that trial counsel's failure to seek funds for an expert left him unprepared to cross-examine Dr. Block appropriately and deprived him of a substantial ground of defense. Generally, “[w]hether to call or not call an expert witness fits squarely within the realm of strategic or tactical decisions. We therefore evaluate whether such a decision was manifestly unreasonable” (quotations and citations omitted). Commonwealth v. Rios, 496 Mass. 11, 25 (2025). “The absence of expert testimony constitutes ineffective assistance where such testimony could provide a substantial ground of defense or is necessary to rebut critical expert testimony relied upon by the Commonwealth.” Commonwealth v. Jacobs, 488 Mass. 597, 606 (2021).

We substantially agree with the motion judge's conclusion that trial counsel's preparation for and conduct of cross-examination of Dr. Block was constitutionally competent. In assessing counsel's decision to forego calling his own expert to counter Dr. Block, and to forego even requesting funds to consult with an expert, however, we focus on the thoroughness of counsel's thought process in making that decision. “[W]here a strategic decision is made to conduct something less than a complete investigation of a potentially substantial defense, either because defense counsel decided to forgo that defense or to present it at trial without complete investigation, we ask whether it was manifestly unreasonable to conduct so limited an investigation.” Commonwealth v. Epps, 474 Mass. 743, 757 (2016).

For the purposes of this appeal, we need not decide whether trial counsel's dismissal of the possibility of obtaining his own expert was manifestly unreasonable; “the defense claim ultimately fails because the defendant cannot show that he suffered ‘prejudice’ ” (citation omitted). Commonwealth v. Minon, 102 Mass. App. Ct. 244, 248 (2023).

“[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.” Commonwealth v. Millien, 474 Mass. 417, 432 (2016). See Commonwealth v. Mosso, 496 Mass. 768, 780 (2025) (to prove ineffective assistance of counsel, defendant must show not only substandard performance, but also “a reasonable probability that ․ the result of the proceeding would have been different” [quotation and citation omitted]).

We do not harbor serious doubt, or discern any reasonable probability, that presenting a false memory theory would have changed the result. In Dr. Price's telling at the hearing on the new trial motion, children might develop false memories of abuse because of “suggestive questioning” or cues from adults. The defense at trial was that the boys purposefully made false allegations of abuse as a result of the same influences. We are confident that the jury would not have been any more persuaded if instead of, or in addition to, the “deliberate lie” theory that defense counsel pursued at trial, counsel had presented a theory of false memory “occur[ing] organically and inadvertently due to, among other possible causes, what Dr. Price called indirect social influence.”

Fundamentally, we agree with trial counsel that it would have been a “hard sell” to convince the jury that Shaun and Colin “organically and inadvertently” developed similar false memories. The boys had been apart for a matter of years, with little, if any contact, before Colin independently disclosed his abuse by the defendant. There was no evidence that the two were subject to the same “suggestive questioning” or other pressures that would have caused them both to develop false memories of the same type of abuse by the defendant -- especially not Colin, who had long been removed from the defendant's sphere.

In addition, the jury acquitted the defendant of five of the charges, suggesting that trial counsel's theory of defense was somewhat convincing. “That the defense was at least partially successful ․ bolsters our conclusion” that there was no prejudice. Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 313 (2023). Indeed, for most of the crimes for which the defendant was convicted, a “false memory” theory would have been considerably less convincing. Based on the pattern of convictions and acquittals, it appears that the jury tended to believe the victims’ testimony when their stories were consistent. The “false memory” theory would have required an explanation how two children independently developed genuine, matching false memories. The “deliberate lie” theory plausibly suggested the victims’ testimony was consistent because they had coordinated their stories ahead of time.

That defense counsel's chosen strategy was not fully successful does not change our conclusion. “[T]he distorting effects of hindsight must be avoided in evaluating a claim [of ineffective assistance] made after a trial in which the attorney's defense strategy was proved unsuccessful” (quotation and citation omitted). Commonwealth v. Valentin, 470 Mass. 186, 189 (2014).

Finally, we discern no reasonable probability that obtaining an expert would have permitted defense counsel to cross-examine Dr. Block on traumatic memory so much more effectively that it would have made a difference in the result. We agree with the motion judge's observations that Dr. Block's testimony regarding traumatic memory did not differ significantly from Dr. Price's testimony, and specifically that Dr. Price's testimony was not inconsistent with the Commonwealth's rather pedestrian use of Dr. Block's testimony to argue that in stressful moments, people focus more on central details and less on peripheral details.

The defendant failed to demonstrate that trial counsel's failure to consult or obtain an expert to help develop an alternative theory of defense amounted to ineffective assistance of counsel. The motion judge did not err or abuse her discretion in denying the motion for new trial after remand.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   We adopt the pseudonyms used by the prior panel.

2.   The Commonwealth nol prossed one other indictment, and two were disposed by required findings of not guilty at trial.

3.   Trial counsel also sought to impeach Dr. Block by suggesting she was biased in favor of the prosecution.