COMMONWEALTH v. TYREE MARSHALL (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A criminal complaint was filed in the District Court charging the defendant with rape, indecent assault and battery on a person over fourteen, and assault and battery. He was convicted after a jury trial of indecent assault and battery and assault and battery; the judge dismissed the rape charge before trial at the request of the Commonwealth. The defendant contended in a motion for a new trial that his trial counsel was ineffective and now appeals from the denial of that motion.¹ We affirm.

The charges arose from assaults at the Government Center MBTA station. The assault and battery occurred in a glass-walled elevator at the station. Security cameras captured views of the elevator from both outside and inside; the resulting video recordings were admitted in evidence. A transit officer testified that, from outside the elevator, he saw the defendant grab a woman (victim) by the throat and push her into the corner of the elevator. Only later, while reviewing a video recording of the assault, did officers discover the indecent assault and battery, which had happened before they arrived. A transit police detective testified that, on the recording, the “clearly unconscious” victim was on the lap of the defendant, who put his hands down both the front and the back of victim's pants.

Following his conviction, the defendant filed a motion for new trial in which he maintained that trial counsel was ineffective because he (1) conceded that the victim was unconscious at the time of the sexual assault, fatally undermining a potential consent defense, (2) sought the transit detective's testimony about whether the case was “a strong case,” and (3) made other evidentiary errors. The judge denied the motion.

“We examine the granting or denial of a new trial motion ‘only to determine whether there has been a significant error of law or other abuse of discretion,’ ” Commonwealth v. Lys, 481 Mass. 1, 4 (2018), quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), reversing if “it appears that justice may not have been done” Lys, supra, quoting Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). “Where, as here, the motion judge [was] also the trial judge, we give ‘special deference’ to the judge's findings of fact and ․ decision on the motion” (citation omitted). Commonwealth v. Kolenovic, 471 Mass. 664, 672-673 (2015).

A successful claim for ineffective assistance of counsel requires a showing that (1) counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer”; and (2) such conduct deprived the defendant of “an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We give deference to counsel's tactical decisions unless they are “manifestly unreasonable.” See Commonwealth v. White, 409 Mass. 266, 273 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). “A defendant seeking a new trial based on a claim of ineffective assistance of counsel bears the burden of establishing both prongs of the Saferian test.” Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014).

We discern no significant error of law or abuse of discretion in the judge's denial of the motion for a new trial. Passing on the question of whether counsel's decision to characterize the victim as “unconscious” was “manifestly unreasonable,” we conclude that the defendant failed to show that “better work might have accomplished something material for the defense,” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) -- that is, to establish prejudice.

The defendant maintains that the video-recorded evidence is inconclusive as to the victim's state of consciousness and that “certain of her movements might well have raised a reasonable doubt as to whether she was conscious.” The recordings are not part of the appellate record, so we cannot test this assertion; however, given the overwhelming strength of the evidence, even were this true, it would not establish that counsel's tactical decisions deprived the defendant of a substantial ground of defense. The jury heard the eyewitness testimony of the transit officer, who “didn't believe [the victim] was breathing” and therefore checked for a pulse, tapped her on the shoulder, and applied a stimulus to her chest in his attempts to wake her before calling for emergency medical services. The jury saw this interaction on a video recording. They also saw a video recording of the defendant with the victim on his lap, putting his hands down the front and back of her pants, then “dropp[ing] her on the ground.” The transit detective interviewed the victim at headquarters after the assault and characterized her as needing to be woken up “several times” during the interview. When trial counsel chooses not to pursue a defense that, while possible, is not substantial, that does not render the assistance ineffective. See Commonwealth v. Vao Sok, 435 Mass. 743, 758 (2002).²

Considering the substantial trial evidence that revealed the victim's state, we conclude that the judge committed no error in denying the motion for a new trial.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   The defendant timely filed a notice of appeal after the judgment and after the denial of the motion for a new trial. The appeals were consolidated in this Court. The defendant's brief, however, addresses only the denial of the motion for a new trial.

2.   The defendant also asserts error in counsel's asking the transit detective whether she believed this was a “strong case.” The judge sustained the Commonwealth's objection to this question, and the detective did not answer. In the absence of any responsive testimony and considering the judge's instructions to the jury to ignore matters as to which objections were sustained, and that questions are not evidence, we discern no ineffective assistance here. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) (“We presume that a jury follow all instructions given to it”).