COMMONWEALTH vs. ROBERT I. LASH.

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
25-P-1304
COMMONWEALTH
vs.
ROBERT I. LASH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a one-day trial, a Boston Municipal Court jury
convicted the defendant of one count of assault and battery on a
family or household member, G. L. c. 265, § 13M (a).1 The
defendant filed a motion for a new trial, alleging ineffective
assistance of counsel based on trial counsel's decision not to
seek a continuance to file a motion to suppress police body-worn
camera footage after learning on the day of trial that the
complainant would not testify. The motion judge, who was also
the trial judge, denied the motion following a hearing. On
1 The defendant was also charged with malicious destruction
of property, G. L. c. 266, § 127, but the judge granted the
defendant's motion for a required finding of not guilty on that
charge at the close of the Commonwealth's case.

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appeal, the defendant argues that the judge erred in denying his
motion for a new trial because counsel's decision was manifestly
unreasonable. We agree. Accordingly, we reverse the judge's
denial of the defendant's motion for a new trial, vacate the
conviction, set aside the verdict, and remand the case for a new
trial should the Commonwealth choose to pursue one.
Background. In February 2024, Boston police Officers
Robert Nunez, Willem Scheele, and Sarah Wyszynsky responded to a
domestic violence call involving the defendant and his
girlfriend (complainant) at a hotel. The officers, who had
their body-worn cameras activated, spoke separately with the
defendant and the complainant. While the complainant was in a
conference room with Officer Wyszynsky, Officers Nunez and
Scheele approached the defendant, took him by the arms, and
escorted him to an area in the hotel lobby. As the defendant
stood with his back facing a wall, the officers placed the
defendant's hands behind his back, applied handcuffs, and
informed him that he was being detained. The officers did not
read the defendant his Miranda rights before asking him what
occurred that evening. After hearing from both parties, the
officers arrested the defendant.
Prior to trial, the Commonwealth filed a motion in limine
to admit into evidence a one-minute portion of Officer Scheele's
body-worn camera footage. Defense counsel did not raise any

3
objections and did not file a motion to suppress the video
recording. In the recording, the defendant tells the officers
that he "pushed [the complainant] back," and that he "pushed her
back on the bed, but it was in defense." He continues, "She's
hitting me, and I fucking pushed her back," and "I pushed her on
the bed, yeah, she fell on the floor, and she started crying."
On the day of trial, the Commonwealth informed defense
counsel that the complainant would not testify. Both the
Commonwealth and the defense answered ready for trial. During
its case-in-chief, the Commonwealth called two witnesses,
Officers Wyszynsky and Scheele. The Commonwealth also admitted
in evidence photographs of the complainant's injuries during
Officer Wyszynsky's testimony,2 and played the one-minute video
segment of the body-worn camera footage during Officer Scheele's
direct examination. The defense did not present any witnesses.
The jury found the defendant guilty of one count of assault and
battery on a family or household member.
The defendant subsequently filed a motion for a new trial
based on a claim of ineffective assistance of counsel
accompanied by an affidavit from trial counsel (counsel). The
judge conducted an evidentiary hearing at which counsel
2 Defense counsel objected to the admission of these
photographs.

4
testified. Counsel averred that it was his understanding, based
in part on his communications with the Commonwealth, that the
complainant planned to testify against the defendant at trial.
Based on his assessment of the case, counsel concluded that
self-defense would be the defendant's most effective trial
strategy. In order to present evidence of self-defense, counsel
could have presented the defendant's recorded statements in the
body-worn camera footage or put his client on the stand; he
chose the former after discussing the options with the
defendant.
After learning for the first time on the day of trial that
the complainant would not testify, counsel explained that he
"stuck" with the self-defense strategy and did not ask for a
continuance because he "did not think the Commonwealth would be
able to prove its case without the alleged victim." Counsel
further stated, however, that "had [he] previously moved to
suppress the statements and that motion was allowed, then the
Commonwealth likely would not have been able to proceed to trial
without the testimony of the complaining witness."
Discussion. 1. Standard of review. A motion for a new
trial may be granted "if it appears that justice may not have
been done." Commonwealth v. Kolenovic, 471 Mass. 664, 672
(2015), quoting Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001). We examine the denial of a new trial motion

5
for "a significant error of law or other abuse of discretion"
(citation omitted). Commonwealth v. Lys, 481 Mass. 1, 4 (2018).
Where, as here, the motion judge was also the trial judge, "we
give special deference to the judge's findings of fact and the
ultimate decision on the motion" (quotation and citation
omitted). Kolenovic, supra at 672-673.
"Where a motion for a new trial is based on ineffective
assistance of counsel, the defendant must show that the behavior
of counsel fell 'below that . . . [of] an ordinary fallible
lawyer' and that such failing 'likely deprived the defendant of
an otherwise available, substantial ground of defen[s]e.'"
Commonwealth v. Miller, 101 Mass. App. Ct. 344, 348 (2022),
quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
"Essentially, [t]he defendant must demonstrate that better work
might have accomplished something material for the defense."
Commonwealth v. Ng, 489 Mass. 242, 250 (2022), S.C., 491 Mass.
247 (2023), quoting Commonwealth v. Valentin, 470 Mass. 186, 190
(2014).
2. Ineffective assistance of counsel. a. Trial counsel's
performance. The defendant argues that counsel's decision, on
the day of trial, not to seek to convert the trial date to a
motion date, or to request a continuance to file a motion to
suppress the video statements, after learning the complainant
would not testify, was manifestly unreasonable. We agree.

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"A strategic or tactical decision by counsel will not be
considered ineffective assistance unless the decision was
manifestly unreasonable when made" (quotation and citation
omitted). Commonwealth v. Watson, 455 Mass. 246, 256 (2009).
Manifestly unreasonable decisions refer only to "strategy and
tactics which lawyers of ordinary training and skill in the
criminal law would not consider competent." Kolenovic, 471
Mass. at 674, quoting Commonwealth v. Pillai, 445 Mass. 175,
186-187 (2005). The manifestly unreasonable test is "a search
for rationality in counsel's strategic decisions, taking into
account all the circumstances known or that should have been
known to counsel in the exercise of his duty to provide
effective representation to the client and not whether counsel
could have made alternative choices." Kolenovic, supra at 674-
675.
As a preliminary matter, counsel's and defendant's decision
to rely on the defendant's statements as depicted on the video
recording, premised on their understanding from the Commonwealth
that the complainant would testify at trial, was not an
unreasonable self-defense strategy. To argue that the
defendant's actions were in self-defense, counsel would either
need to show the video recording of the defendant saying he
"pushed her back," or have his client testify. To avoid

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exposing the defendant to cross-examination, counsel and the
defendant reasonably chose to rely on the video recording.
Although counsel's decision to rely on the video statements
to argue self-defense was not a manifestly unreasonable strategy
formed in anticipation of the complainant's testimony against
him, his decision not to pivot on the day of trial after
learning that the complainant would not testify was manifestly
unreasonable. To sustain a conviction for assault and battery
on a family or household member, the Commonwealth must prove
that (1) the defendant intentionally touched the victim, (2) the
touching was likely to cause bodily harm or was offensive, and
(3) the defendant and victim were family or household members at
the time of the offense. See G. L. c. 265, § 13M; Commonwealth
v. Dustin, 476 Mass. 1003, 1004-1005 (2016). It is undisputed
that the video recording contained the Commonwealth's only
evidence of the relationship between the defendant and the
complainant, as well as the only direct evidence that the
defendant touched the complainant without her consent. It
follows that it was manifestly unreasonable to go forward with
the only direct evidence of the elements of assault and battery
on a family or household member -- the police body-worn camera
footage wherein the defendant admits that he touched the
complainant without her consent -- after learning that the
complainant would not be testifying, knowing that the footage

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was likely subject to suppression for the reasons discussed
infra. Compare Commonwealth v. Conceicao, 388 Mass. 255, 264
(1983) ("It is not ineffective assistance of counsel when trial
counsel declines to file [or pursue] a motion with a minimal
chance of success").
It is unknown whether the complainant would have appeared
at a second trial date. That uncertainty, however, does not
change our analysis. If the complainant did not show up and
testify at a second trial date, and the video evidence had been
suppressed, the Commonwealth would not have evidence of the
family or household member element and only very weak
circumstantial evidence -- photographs of the complainant's
injuries and police officer testimony as to observations of the
parties -- that the defendant did anything. If, however, the
complainant did show up to testify and the video evidence had
been suppressed, the defendant could withdraw his objection to
the admission of the video recording, and proceed with his
chosen self-defense strategy. Indeed, had counsel requested a
continuance and filed a motion to suppress, the defendant would
not have forfeited his self-defense strategy. Considering the
officers had appeared for trial, counsel could have also
requested the trial date be converted to a hearing on a motion
to suppress the video footage. Accordingly, counsel's actions
were not consistent with what "lawyers of ordinary training and

9
skill in the criminal law" would consider to be competent
(quotation and citations omitted). Pillai, 445 Mass. at 186-
187.
b. Prejudice. Magnifying the manifest unreasonableness of
counsel's decision is that there was a strong likelihood that
the defendant's statements would be suppressed because he was
subjected to custodial interrogation without being read his
Miranda warnings. See Commonwealth v. Cavitt, 460 Mass. 617,
626 (2011) (to prove prejudice, "the defendant must demonstrate
that the evidence would have been suppressed if properly
challenged").
In assessing whether the defendant was prejudiced because
of trial counsel's performance, "a defendant is entitled to a
new trial 'if we have a serious doubt whether the result of the
trial might have been different had the error not been made.'"
Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439 (2016),
quoting Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
"[T]he burden is on the defendant to show . . . a reasonable
probability of a different outcome." Weaver v. Massachusetts,
582 U.S. 286, 301 (2017). The defendant here has met that
burden.
This is not a case where the evidence was so strong that
there could be no prejudice. Compare Commonwealth v.
Despasquale, 86 Mass. App. Ct. 914, 917 (2014), quoting

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Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977)
("Notwithstanding trial counsel's deficient performance, there
has been no showing, in light of the overwhelming evidence of
guilt, 'that better work might have accomplished something
material for the defense'"). As noted above, the video
recording provided the only direct evidence that the defendant
touched the complainant without her consent, and the only
evidence that the defendant and complainant were in a qualifying
relationship. Given the limited strength of the Commonwealth's
case without the video recording, we do have a "serious doubt
whether the result of the trial might have been different" had
defense counsel requested a continuance to file a motion to
suppress (citation omitted). Valentin, 470 Mass. at 189.
While the judge would have still had to allow defense
counsel's motion for a continuance, or convert the trial date to
a motion to suppress hearing, there is nothing to suggest that
this was unlikely. This case had been continued only once, and
the trial date was only a little over three months after the
defendant's arraignment.3 While counsel had not moved to
suppress the video statements in a timely manner, this was not
due to negligence or inadvertence but rather was a strategic
3 The defendant was arraigned in February 2024, and the
trial was held in May 2024.

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decision, as discussed supra. In the circumstances presented
here, had counsel sought a continuance and filed a motion to
suppress on the day of trial, the judge would have been required
to entertain the motion. While
"[t]he decision whether to grant a motion to continue lies
within the sound discretion of the trial judge . . . . a
trial judge may not exercise his discretion in such a way
as to impair a defendant's constitutional right to have
counsel who has had reasonable opportunity to prepare a
defense. In determining whether a trial judge's denial of
a continuance has violated a defendant's right to effective
assistance of counsel and to due process of law, we must
examine the circumstances present in [the] case,
particularly [those] reasons presented to the trial judge"
(quotations and citations omitted).
Commonwealth v. Miles, 420 Mass. 67, 85 (1995). Here, the judge
could have then reviewed the relevant body-worn camera footage,
which contained all the facts and circumstances relevant to
suppression, in a matter of minutes, and heard arguments from
the parties before ruling on the motion that day.4 Defense
counsel may have succeeded in having the video statements
suppressed, and a trial could have proceeded as originally
scheduled. We also cannot disregard the chance that the
Commonwealth, knowing the defendant was now moving to suppress,
4 Recognizing the judge was required to "afford[]" the
Commonwealth an "adequate opportunity to prepare and submit a
memorandum of law prior to [a] hearing," Mass. R. Crim. P.
13 (e), as appearing in 442 Mass. 1516 (2004), should the
Commonwealth have requested such an opportunity, there is
nothing to suggest the judge would not have granted a
continuance to the Commonwealth.

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would not have opposed the motion considering the clear Miranda
violation.5 Additionally, a judge may well have concluded that
the abrupt change in the Commonwealth's case-in-chief once the
complainant failed to appear dramatically impacted the
defendant's defense strategy and supported the request for a
continuance.
When the complainant unexpectedly did not appear on the day
of trial, the trial landscape changed significantly. Indeed,
the reason for a continuance went to the core of the defendant's
defense -- that the Commonwealth's strongest evidence, absent
the complainant testifying, was the body-worn camera footage.
Considering that a continuance and a successful motion to
suppress could well have resulted either in the dismissal of the
case or an acquittal after trial, we conclude that the defendant
has shown that "better work might have accomplished something
material for the defense." Satterfield, 373 Mass. at 115.
Conclusion. The order denying the defendant's motion for a
new trial is reversed. The judgment is vacated, the verdict is
set aside, and the case is remanded to the Boston Municipal
5 The Commonwealth does not dispute that the defendant's
statements were obtained in violation of Miranda.

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Court for a new trial should the Commonwealth choose to pursue
one.
So ordered.
By the Court (Rubin, Hand &
Smyth, JJ.6),
Clerk
Entered: October 15, 2026.
6 The panelists are listed in order of seniority.