NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

13-P-1938                                            Appeals Court

                COMMONWEALTH   vs.   TERRANCE HAMPTON.


                            No. 13-P-1938.

         Hampden.    January 13, 2015. - September 2, 2015.

              Present:   Trainor, Rubin, & Sullivan, JJ.


Practice, Criminal, New trial, Assistance of counsel, Witness.
     Constitutional Law, Assistance of counsel. Due Process of
     Law, Assistance of counsel.



     Indictments found and returned in the Superior Court
Department on August 12, 2008.

     Following review by this court, 82 Mass. App. Ct. 1111
(2012), a motion for a new trial was heard by Constance M.
Sweeney, J.


     Stephanie A. Hoeplinger for the defendant.
     Cynthia Cullen Payne, Assistant District Attorney, for the
Commonwealth.


     SULLIVAN, J.   Following an order of remand,1 a judge of the

Superior Court held an evidentiary hearing on the defendant's


     1
       See Commonwealth v. Hampton, 82 Mass. App. Ct. 1111
(2012).
                                                                       2


motion for a new trial on the ground of ineffective assistance

of trial counsel.    The defendant had been convicted of

assaulting a correctional officer.      See G. L. c. 127, § 38B.

His defense at trial was that the correctional officer used

excessive force and was the first aggressor.      At issue in the

motion and on appeal is whether counsel was ineffective in

failing to interview a fellow inmate who claimed that he had

observed a portion of the altercation, and that the defendant

had not been the first aggressor.      The motion judge, who was

also the trial judge, denied the motion on the basis that

counsel made a reasonable strategic decision, and that the

witness was not credible.      We reverse.

    1.      Background.   a.   Pretrial investigation by defense

counsel.    The defendant was charged with assault and battery on

a correctional officer at the Hampden County house of correction

in Ludlow.    Before the trial, the defendant told trial counsel

that a fellow inmate, Deven Gallop, witnessed the events in

question.    Trial counsel filed a pretrial discovery motion to

name any persons present during the incident.       The Commonwealth

provided a list with the names of the correctional officers, but

it did not include Gallop's name.      Trial counsel accepted the

Commonwealth's representation.      Neither she nor her investigator

interviewed Gallop or visited the intake unit where the incident

took place.
                                                                      3


    Before jury empanelment, the defendant moved to discharge

trial counsel, asserting that she failed to investigate the

potential eye witness and was thus ill-prepared to present his

defense.    The motion was denied and the case proceeded to trial.

    b.     The trial.   At trial, the Commonwealth's theory was

that the defendant engaged in an unprovoked attack.     The

defendant claimed that the correctional officer used excessive

force to which he responded in self-defense.

    Three correctional officers testified regarding the

incident.    The defendant was located within an intake unit where

inmates waiting to go to court were held.     Inmates were allowed

to change from prison clothes to civilian clothes before going

to court, but were required to submit to a strip search in a

"strip room."    The incident took place in the strip room as the

defendant, whose court date had been cancelled, was preparing to

go back to his cell.     Officer Barcomb testified that he told the

defendant to put some personal papers down.     Barcomb then picked

up the papers.    The defendant told him not to read them, grabbed

the papers out of his hands, and punched Barcomb repeatedly.

Two correctional officers testified that the defendant punched

Barcomb with multiple blows.    One testified that the defendant

yelled, "Do you know who the fuck I am?"

    The defendant testified that he went into the strip room

and began to disrobe.    When Barcomb picked up the papers, Gallop
                                                                    4


asked the officer four or five times over two to three minutes

not to read the papers.     When the officer did not stop reading

the papers, the defendant snatched the paperwork from Barcomb's

hand.    The officer told the defendant to turn and put his hands

on the wall and he complied.     Barcomb then pushed him three

times from the rear; his shins were pressed against a bench.

After the third push, the defendant turned around.     Barcomb's

arm was raised and the defendant then swung his fist at the

officer.   Barcomb blocked the blow, they both fell to the

ground, and Barcomb hit him in the eye.

    After closing arguments in which the Commonwealth stressed

the credibility of the three officers' testimony and the

defendant's lack of credibility, the defendant was convicted of

assault and battery upon a correctional officer.

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

for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing

in 435 Mass. 1501 (2001).    The motion contained an affidavit

from Gallop stating that he had seen the beginning of the

altercation, that he saw the officers push the defendant three

or four times, that he may have seen an officer take a swing at

the defendant, and that he would have testified at trial upon

request.   The motion was denied on the papers.    The denial of

the defendant's motion for a new trial was subsequently vacated

and the matter was remanded for an evidentiary hearing on the
                                                                        5


issue whether counsel's decision not to pursue Deven Gallop as a

defense witness constituted ineffective assistance.

Commonwealth v. Hampton, 82 Mass. App. Ct. 1111 (2012).

    Gallop's testimony at the hearing on the motion for a new

trial may be summarized as follows.     Gallop was Hampton's

codefendant and was present in the intake area with the

defendant that day.    Gallop was in a holding cell approximately

five feet across from the strip room.     The door to the strip

room was ajar for a few seconds.    He witnessed the confrontation

between the defendant and the correctional officer near the

entrance of the intake room through a window in the steel door

of his holding cell.    When the intake room door was open, Gallop

saw an officer push the defendant three to four times and may

have seen the officer swing at him as well.     He also heard

someone say, "Why are you hitting me?" and another person say,

"Stop resisting."

    Gallop's credibility was in dispute.      He was held in a cell

that had a steel door with windows.    Gallop described the window

as portrait shaped, over two feet wide and three feet high.       The

Commonwealth introduced photographs of the cell door showing

that there were two vertical windows four inches wide and thirty

inches long.   The Commonwealth also offered the testimony of one

of the correctional officers that the windows had always been in
                                                                     6


that configuration.   When shown the pictures, Gallop did not

change his testimony.

    Gallop also stated that the incident occurred at the front

of the strip room, just inside the door.    He conceded that if

the incident had occurred near the back of the room, as the

defendant had testified at trial, he would not have been able to

see what happened.    On cross-examination, Gallop stated that the

defendant was not pushed up against the wall, was not pushed up

against a bench, and that there was no bench in the intake room.

This testimony was at odds with that of the defendant and with

that of the correctional officers, who testified at trial and at

the evidentiary hearing that the incident took place while the

defendant was standing against the bench with his hands on the

wall.

    Lieutenant Carter, a correctional officer, testified that

in his nineteen years at the correctional facility, the bench in

the strip room was located against the back wall, near the

shower area and the window to the property room.    Upon hearing

loud noises from within the strip room, Carter knocked on the

door, and a sergeant, who was in the room, opened the door which

then closed behind him.   Carter saw the defendant snatch papers

out of Barcomb's hands and heard the officer tell the defendant

to place his hands on the wall.   He saw the defendant put one

hand on the wall and then start swinging "closed fist punches"
                                                                      7


at Barcomb's head.     Carter maintained that the door was not open

during the incident.

    As noted previously, defense counsel testified that she

relied on the Commonwealth's representation that no one else saw

the incident.    She had never been to the Ludlow house of

correction, was unfamiliar with the lay out of the strip cells,

and declined to interview Gallop even though the defendant had

given her his name.    When asked if there was a strategic reason

for her decision not to interview Gallop, she stated that she

"relied on the information provided by the Commonwealth,"

because the incident occurred in the confines of a cell in an

enclosed area.

    The motion judge concluded that trial counsel was not

ineffective because she made a reasonable strategic decision not

to interview or call Gallop as a witness.     The judge also found

that trial counsel's investigation revealed that the incident

occurred at the back of the intake room, and therefore, Gallop

did not witness the events because it would have been impossible

to do so, and it would have been poor strategy to call a witness

whose testimony conflicted with that of the defendant.       She

further found that Gallop's testimony at the evidentiary hearing

was not credible for three reasons:     Gallop was (1) biased

because he was a codefendant, (2) "at times self-contradictory

on matters of importance," and (3) "inconsistent with
                                                                       8


significant credible evidence."      Consequently, she denied the

defendant's motion for a new trial.

    2.      Discussion.   When assessing a claim of ineffective

assistance of counsel, we examine the question under our

traditional two-prong test stated in Commonwealth v. Saferian,

366 Mass. 89, 96 (1974):      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 otherwise available, substantial ground of

defence."     Commonwealth v. Egardo, 426 Mass. 48, 52 (1997).      See

Commonwealth v. Alcide, 472 Mass. 150, 157 (2015).      The

defendant asserts that the judge erred in concluding that

counsel made a reasonable strategic decision not to call Gallop

on the basis that trial counsel did not conduct any

investigation of Gallop's testimony, and Gallop's credibility

was a matter for the jury.     We agree.

    a.      Duty to investigate.   Tactical decision-making by

counsel will be considered ineffective if "manifestly

unreasonable when made."      Commonwealth v. Martin, 427 Mass. 816,

822 (1998).    Defense counsel had an affirmative obligation under

State and Federal law "to conduct an independent investigation

of the facts."    Commonwealth v. Baker, 440 Mass. 519, 529
                                                                    9


(2003).   See Saferian, supra at 96; Alcide, supra at 169;

Strickland v. Washington, 466 U.S. 668, 690 (1984).     This duty

exists because the Sixth Amendment right to counsel is a

cornerstone of a fair trial.   See id. at 685.    "[A] fair trial

is one in which evidence subject to adversarial testing is

presented to an impartial tribunal for resolution of issues

defined in advance of the proceeding."    Ibid.

     Here, trial counsel candidly acknowledged that she took the

Commonwealth at its word and conducted no investigation of

Gallop's observations or of the holding area.2    The failure to

investigate "undermined the proper functioning of the

adversarial process."   Id. at 686.   Until counsel "commenced

such an investigation, [she] simply had no way of making a

reasonable tactical judgment."   Baker, supra.    The judge's

effort to supply a rationale for counsel's decision, based on


     2
       The judge's factual finding that counsel made a strategic
decision was not supported by the record. The judge found that
counsel's decision was based on her understanding that the
incident occurred at the back of the room out of sight of
Gallop. Trial counsel offered no testimony to this effect at
the evidentiary hearing. She had no basis for evaluating what
Gallop could and could not see at the back of the room, since
she had no familiarity with the configuration of the holding
cells and the strip room. When the defendant asked for
counsel's discharge before trial due to her failure to
investigate, counsel told the judge that she had declined to
interview the witness because the Commonwealth had told her
there were no other witnesses, and because the door to the strip
room had been closed. Gallop's testimony put this assertion in
dispute.
                                                                   10


information acquired after the fact, runs afoul of the

requirement that the reasonableness of counsel's decision-making

must be based on the decision "when made," and may not be

"informed by what hindsight may reveal."   Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015).

    "'[S]trategic choices made after less than complete

investigation are reasonable' only to the extent that

'reasonable professional judgments support the limitations on

the investigation.'"   Wiggins v. Smith, 539 U.S. 510, 533

(2003), quoting from Strickland, supra at 690-691.    Compare

Alcide, supra (complete failure to investigate), with

Commonwealth v. Gorham, 472 Mass. 112, 118 (2015) ("This is not

a case where counsel did no investigation").    Where the sole

defense in the case was self-defense, it was manifestly

unreasonable to fail to interview, or have an investigator

interview, a potential percipient witness.     See Alcide, supra

(failure to interview witnesses pertinent to third party culprit

defense); Commonwealth v. Garcia, 66 Mass. App. Ct. 167, 172

(2006) (defense counsel's failure to speak to a defense witness

before trial was a "grievous shortcoming, especially in a case

. . . where credibility was the sole issue").    Compare

Commonwealth v. Montez, 450 Mass. 736, 758 (2008) (fully

considered decision not to call three eyewitnesses, two of whom

were interviewed by an investigator, and whose testimony would
                                                                     11


have conflicted with the defense theory of the case was not

ineffective); Commonwealth v. Morales, 453 Mass 40, 48-49 (2009)

(counsel who interviewed the witness and made a decision not to

call him because counsel found him not to be credible was not

ineffective.)

       b.   Prejudice.   The judge found, in the alternative, that

Gallop's testimony was not credible, and therefore, the

defendant was not deprived of a substantial ground of defense.

Relying on Commonwealth v. Roberio, 428 Mass. 278, 281 (1998),

the defendant contends that the question of the witness's

credibility was for the jury.     The Commonwealth contends that

Gallop's testimony would not have assisted the defendant, and

that the assessment of credibility is "traditionally a matter

committed to the assessment of the motion judge."

       In Roberio, the trial judge, hearing a motion for new

trial, determined that counsel had been ineffective in failing

to investigate and present an insanity defense.     The judge

ultimately concluded, however, that the defendant's expert

witness was not credible, and that the defendant was not

otherwise deprived of a substantial ground of defense.      Ibid. at

281.    The Supreme Judicial Court held that "where the trial

judge has determined that defense counsel was ineffective in not

raising a substantial available defense, the issue is limited to

whether counsel's failure to raise a substantial available
                                                                     12


defense was likely to have influenced the jury's conclusion."

Ibid.    If believed, the expert in Roberio likely would have

influenced the jury's verdict.    Therefore, "[i]t was not proper

for the trial judge, having found ineffective assistance for

failing to raise the defense, to then remove the issue of the

credibility of that defense from the jury. . . .     [T]he issue of

credibility was for the jury, not the judge."     Ibid.

     Although this case stands on a somewhat different footing,

the same analysis applies.    Here the threshold question, whether

self-defense was a substantial available defense, had already

been decided.    The defendant presented the defense at trial and

the jury were instructed on self-defense.     As is so often the

case, the participants and the witnesses had "widely divergent

versions of what transpired."     Commonwealth v. Bior, 14-P-395

(2015).    The case was a duel of credibility.3   Gallop was the

defendant's only corroborating witness, imperfect though his

testimony may have been.     His testimony was consistent with the

overall defense, and while it deviated in the details, it did

not undermine the theory of self-defense.     Compare Montez, 450

Mass. at 758.

     Viewing Gallop's testimony (as we must) "in the light most

favorable to [the defendant]," that testimony, if believed,

     3
       The prosecutor described the case in this manner at the
hearing on the motion for a new trial.
                                                                     13


could raise a reasonable doubt as to the defendant's guilt,

because the testimony permitted the inference that the

correctional officers were the first aggressors.      Roberio,

supra.     See Strickland, 466 U.S. at 695.   The proper analysis

was not what the judge believed, but whether the testimony may

have had "a significant impact on the jury's assessment of the

evidence."     Commonwealth v. Alvarez, 433 Mass. 93, 103 (2000).4

As has been stated in analogous context, see infra, "[i]t is

enough that, on a full and reasonable assessment of the trial

record, the absent evidence would have played an important role

in the jury's deliberations and conclusions, even though it is

not certain that the evidence would have produced a verdict of

not guilty."     Commonwealth v. Tucceri, 412 Mass. 401, 414

(1992).5

     To be sure, a jury could assess the inconsistencies between

the defendant's testimony and Gallop's testimony, as well as

their demeanor, and find that one or both accounts were a

     4
       In the ordinary course, when reviewing the denial of a
motion for a new trial for an abuse of discretion or error of
law, we would afford considerable deference to the assessment of
the motion judge, who was also the trial judge. "Because the
defendant's claim was not assessed by the judge by the
appropriate standard, we are constrained to rest our analysis on
our independent review of the record." Alcide, supra at 159.
     5
       This standard of review, applicable to motions for a new
trial based on the failure to produce exculpatory evidence, has
been described as "substantially the same as the Saferian
ineffective assistance of counsel standard." Tucceri, supra at
413.
                                                                  14


fabrication.    A reasonable jury could also conclude, however,

that in the close confines of a seven foot by fifteen foot cell

in which the defendant and two correctional officers were

present, a fracas spilled into view.    "Discrepancies in any

witness's testimony are inevitable. . . . Few witnesses are

totally helpful."    Commonwealth v. Hill, 432 Mass. 704, 718, 719

(2000) (counsel was ineffective in the constitutional sense in

failing to call a percipient witness who claimed he saw someone

enter or leave through the front door of the home, despite the

testimony of the victim's wife that the front door was locked).

We cannot say with certitude that better work could not have

accomplished something more for the defense.    See Baker, 440

Mass. at 529.   See also Commonwealth v. Satterfield, 373 Mass.

109, 115 (1977).

     It is important to recognize, however, the close confines

in which this case resides.    We are dealing with the standard by

which we review for prejudice under the second prong of

Saferian, not the first.6   This appeal is unlike the myriad cases


     6
       For example, see Gorham, 472 Mass. at 118, in which
counsel did conduct an investigation, but was, according to his
investigator, "unable to develop any useable witnesses." The
Supreme Judicial Court held that counsel was not ineffective,
and the trial judge was permitted to discredit affidavits of
witnesses whose affidavits directly contradicted, and in effect
recanted, their statements to the police in assessing whether
counsel was ineffective. Because counsel was not deemed
ineffective, the court did not reach the issue of prejudice.
                                                                 15


arising on motions for a new trial where the judge determines

the credibility of witnesses with respect to issues having

nothing to do with matters before the jury.    See Commonwealth v.

Scott, 467 Mass 336, 355 n.12 (2014).7   This case is also

materially different than recantation cases, where the judge

determines the credibility of the recanting witness.    See

Commonwealth v. Ortiz, 393 Mass. 523, 537 (1984); Commonwealth

v. Spray, 467 Mass. 456, 471-472 (2014).    In recantation cases,

when the trial has otherwise been determined to be fair,

considerations of finality are strong.     See Commonwealth v.

Grace, 397 Mass. 303, 306-308 (1986).    "If the rule were

otherwise, the right of a new trial would depend on the vagaries

and vacillations of witnesses rather than upon a soundly

exercised discretion of the trial court."     Commonwealth v.

     7
       For example, there are many ineffective assistance claims
that by their nature involve factual determinations made by the
judge. See, e.g. Commonwealth v. Bertrand, 385 Mass. 356, 364-
365 (1982) (facts regarding the communication between counsel
and client); Commonwealth v. Walker, 443 Mass. 213, 223-224
(2005) (reasonableness of counsel's investigation); Commonwealth
v. Sylvain, 466 Mass. 422, 436 (2013) (adequacy of counsel's
advice regarding immigration consequences of plea); Commonwealth
v. Ray, 467 Mass. 115, 128 (2014) (adequacy of counsel's
preparation and investigation); Commonwealth v. Kolenovic, 471
Mass. at 674 (assessing whether counsel's strategic decisions
were manifestly unreasonable "when made"). Other motions for a
new trial also focus on matters outside the jury's purview.
See, e.g. Commonwealth v. Hubbard, 371 Mass. 160, 168-169 (1976)
(competency to plead); Commonwealth v. Scott, supra (motion to
withdraw guilty plea due to misconduct of laboratory employee);
Commonwealth v. LaChance, 469 Mass. 854 (2014) (waiver by
counsel, closed court room).
                                                                   16


Robertson, 357 Mass. 559, 562 (1970), quoting from State v.

Wynn, 178 Wash. 287, 289 (1934).   See Commonwealth v. Rosario,

460 Mass. 181, 195 (2011) (newly discovered evidence must be

material and credible).   By contrast, an "ineffective assistance

claim asserts the absence of one of the crucial assurances that

the result of the proceeding is reliable, so finality concerns

are weaker and the appropriate standard of prejudice should be

somewhat lower."    Strickland, 466 U.S. at 694.

    For this reason, Strickland rejected the prejudice standard

applicable to other motions for a new trial, and assessed

prejudice in a claim of ineffective assistance for failure to

investigate by the same measure as cases in which a fair trial

has been compromised by the failure to disclose exculpatory

evidence.   Ibid.   The Supreme Judicial Court also has analyzed

prejudice in the two types of cases in a similar fashion.

However, our jurisprudence deviates from the Federal approach to

prejudice in these two types of cases; we apply a common law

standard of review that places particular emphasis on the role

of the jury.   See Tucceri, 412 Mass. at 412-413 (applying common

law standard in in exculpatory evidence case).     See also Scott,

supra at 360; Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 573

(2014).   "We have justified this approach as 'preserv[ing], as

well as it can in the circumstances, the defendant's right to

the judgment of his peers,' since it ensures that the court's
                                                                    17


analysis turns on 'what effect the omission might have had on

the jury,' rather than on 'what . . . impact the . . .      evidence

has on the judge's personal assessment of the trial record."

Commonwealth v. Cowels, 470 Mass 607, 623 (2015), quoting from

Tucceri, supra at 411.

     The concerns articulated in Cowels are the same as, and

underscore, those articulated in Roberio -- the preservation of

the jury's function.     We therefore conclude that, under our

common law standard, the judge erred in denying the motion for a

new trial due to ineffective assistance of counsel on the basis

of her assessment of the witness's credibility.      Instead, the

appropriate question is what impact the witness might have had

on the jury.   See Alvarez, 433 Mass. at 103; Tucceri, supra at

411 n.10.   We recognize that there are occasions in which a

judge or reviewing court must engage in a more nuanced approach

to the witness's testimony in addressing this question.      See

Walker, 443 Mass. 213, 226-228 (2005).     Cf.   Commonwealth v.

Jackson, 468 Mass. 1009, 1010-1011 (2014).8      Where, as here, the


     8
       For example, in Jackson, supra, the court evaluated the
impact of previously undisclosed impeachment evidence on the
jury, concluding that it was cumulative. In so doing it
considered dicta in Tucceri that a motion may be denied if "the
undisclosed evidence is cumulative, if it lacks credibility, or
if, in an overall assessment, it does not carry a measure of
strength in support of the defendant." Tucceri, supra at 414.
If however, "the undisclosed evidence is more credible than any
other evidence on the same factual issue, and bears directly on
a crucial issue before the jury" then the evidence would have
                                                               18


only issue at trial was whom to believe, and the witness was the

defendant's sole corroborating witness, the question of the

witness's credibility should have been left to the jury.

                                   Order denying motion for
                                     new trial reversed.

                                   Judgment reversed.

                                   Verdict set aside.




been a "real factor" in the jury's deliberations. Jackson,
supra at 1011. Other reported cases have examined this language
with respect to physical evidence, such as the blood evidence in
Cowels, supra at 623-624, or the photographs in Tucceri, supra,
which, by their nature, indisputably cast doubt on other
evidence and theories propounded at trial. We are unaware of
any case in which Tucceri has been interpreted to permit a judge
to evaluate a witness's credibility under the second prong of
Safarian. We understand Cowels to caution against too broad an
application of this dicta. See Cowels, supra at 623.
