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March 12, 2026 Get Citation Alerts Download PDF Add Note

Commonwealth v. David Antonetty-Almestica.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0183

• Precedential Status: Non-Precedential

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

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-183

COMMONWEALTH

vs.

DAVID ANTONETTY-ALMESTICA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of the

second degree murder of Angel Camacho, in violation of G. L.

c. 265, § 1; witness intimidation, in violation of G. L. c. 268,

§ 13B; and two counts of assault and battery by means of a

dangerous weapon, in violation of G. L. c. 265, § 15A (b). The

defendant thereafter filed a motion for a new trial, which was

denied by the trial judge after an evidentiary hearing. On

appeal, the defendant claims that he received ineffective

assistance of counsel, a question posed to the defendant on

cross-examination created a substantial risk of a miscarriage of
justice, and that other evidentiary errors warrant granting him

a new trial.1 We affirm.

1. Effective assistance. The defendant claims that it

constituted ineffective assistance when trial counsel failed to

move to exclude evidence of two knives and a bloody shoe. As a

result, the defendant claims he is entitled to a new trial. We

disagree.

"Motions for a new trial are granted only in extraordinary

circumstances." Commonwealth v. Comita, 441 Mass. 86, 93

(2004). We review "the denial of a motion for a new trial to

determine whether the motion judge has committed a significant

error of law or an abuse of discretion." Commonwealth v.

Deschaine, 77 Mass. App. Ct. 506, 512 (2010). We will only

reverse if "no conscientious judge, acting intelligently, could

honestly have taken the view expressed by [the judge]." Id.,

quoting Commonwealth v. Clemente, 452 Mass. 295, 304 (2008),

cert. denied, 555 U.S. 1181 (2009).

When a defendant moves for a new trial based on ineffective

assistance of counsel, the defendant must establish that "the

representation fell 'measurably below that which might be

expected from an ordinary fallible lawyer,' and that the

1 The defendant also appealed from an order denying his
motion to set aside the verdict, however, he has not made any
specific argument in his brief with respect to that order.

2
performance inadequacy 'likely deprived the defendant of an

otherwise available, substantial ground of defence.'"

Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

With regard to the defendant's claim for ineffective

assistance of counsel, his central argument is that had trial

counsel moved in limine to exclude evidence of the two knives

and the shoe, the motion would have been successful. However,

rather than focusing our review on the likelihood of the success

of the motion,2 the operative questions before us are whether it

was manifestly unreasonable for trial counsel to decide to not

move to exclude this evidence, and whether it would have

influenced the jury's decision.

"In cases where tactical or strategic decisions of the

defendant's counsel are at issue, we conduct our review with

some deference to avoid characterizing as unreasonable a defense

that was merely unsuccessful." Kolenovic, 471 Mass. at 673,

quoting Commonwealth v. Valentin, 470 Mass. 186, 190 (2014).

"[A]rguably reasoned tactical or strategic judgments do not

2 The defendant cites to a line of cases following
Commonwealth v. Barbosa, 463 Mass. 116 (2012), in support of his
argument that the knives, neither of which was the murder
weapon, would have been excluded had trial counsel so moved.
Although we do generally caution against the admission of
evidence related to weapons that definitively were not used in
the crime, it is still within the judge's discretion to admit or
exclude them. See id. at 122-123.

3
amount to ineffective assistance of counsel unless they are

manifestly unreasonable when made" (quotation and citation

omitted). Commonwealth v. Miller, 101 Mass. App. Ct. 344, 348

(2022). "The manifestly unreasonable test . . . is essentially

a search for rationality in counsel's strategic decisions."

Kolenovic, supra at 674.

At the evidentiary hearing on the motion for a new trial,

trial counsel testified that after he tried to exclude

consciousness of guilt evidence, i.e., the events "in

Springfield," and was unsuccessful, he did not see any

"constitutional" justification to support an attempt to exclude

the items found in the Jeep, namely a knife and a bloody shoe.

With regard to the knife found in the defendant's bedroom, trial

counsel again noted that he "didn't see a constitutional issue

to its seizure," and furthermore, counsel said it appeared from

grand jury testimony that the knife was found with the

defendant, so he would not be successful in arguing that the

knife lacked a nexus to the defendant. Lastly, during the

motion in limine hearing, the motion judge noted that "where

[the defendant is] found and the items he's found with . . . are

relevant to [the] Commonwealth's case" and that those items

should be included in evidence. Considering these statements by

the judge, it was not manifestly unreasonable for the

4
defendant's trial counsel to not move to exclude the knives and

shoe.

Furthermore, the defendant's trial counsel decided to adopt

the knives and shoe into his theory of the case, which was that

the police "investigation was not credible." He used the

"overwhelming amount of untested evidence" to criticize the

investigation, and the inclusion of the two knives and the

bloody shoe in evidence aided him in conveying that criticism.

For instance, counsel cross-examined a trooper regarding the

lack of forensic evidence on the knife in the bedroom where the

defendant had slept. There was also evidence that the shoe

found in the jeep did not likely belong to the defendant.

Furthermore, trial counsel was successful in striking a

significant amount of the testimony given by one of the

responding officers. In fact, trial counsel characterized an

officer's testimony on cross as becoming "unraveled . . .

because it was all being contradicted," and that the officer

"back[ed] out of all [his] prior statements." Given these

facts, as the motion judge found, trial counsel's strategic

choices were not manifestly unreasonable and rather aided in

conveying his theory of the case to the jury, i.e., that the

police investigation was incompetent. The fact that

"[c]ounsel's strategic choices [simply] did not yield an outcome

5
favorable to the defendant" is not enough to warrant a new

trial. Kolenovic, 471 Mass. at 675.

Even assuming the admission of such evidence was erroneous

and trial counsel's representation fell below the standard

expected, the defendant still failed to establish the second

prong of the effective assistance test, which is effectively

that a substantial risk of a miscarriage of justice was created.

See Commonwealth v. Millien, 474 Mass. 417, 432 (2016);

Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 328 (2023). At

the hearing on the motion for a new trial, the defendant claimed

that the Commonwealth's purpose of introducing the knives and

the bloody shoe was to associate the defendant with people who

have knives. Even without these pieces of evidence, the

incremental prejudice flowing from its admission was negligible

where, as the motion judge found, there was ample other evidence

that the defendant's life involved danger. Also, the motion

judge appropriately noted that the defendant testified at trial

that he was "dealing crack," which would be an indication that

he spends time with criminals. The defendant also agreed on

cross-examination that drug dealing is a dangerous business.

Finally, given the strength of the Commonwealth's case,

which included the testimony of two eyewitnesses to the victim's

6
death,3 we do not have a "serious doubt whether the result of the

trial might have been different" had the evidence been excluded

(citation omitted). Valentin, 470 Mass. at 189. In other

words, the defendant has failed to show that "better work might

have accomplished something material for the defense."

Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).4

1. Google search testimony. Next, the defendant claims

that on cross-examination of the defendant, the prosecutor

improperly asked him, "And you typed[,] searching for 'stabbing

at North Front and Tallman' in English." The defendant's phone

records indicate that he actually searched for "North Front

Street and Tallman Street news homicide," and did not use the

word "stabbing." Because there was no objection to this

3 Meagan Fisher testified that she witnessed the defendant
stab the victim. Also, John Medeiros testified that he saw the
defendant with a knife during the altercation leading up to the
victim's death.

4 The defendant also claims that several of the motion
judge's factual findings underlying the ineffective assistance
of counsel claim were clearly erroneous. We disagree. When
reviewing findings of fact in a decision denying a motion for a
new trial, we must accept the judge's findings of fact if there
is evidence in the record to support them, Commonwealth v.
Antone, 90 Mass. App. Ct. 810, 814 (2017), and "[w]here, as
here, the motion judge was also the trial judge, we afford
particular deference to the judge's factual findings" (quotation
and citation omitted). Commonwealth v. Ware, 482 Mass. 717, 721
(2019). The challenged findings all have support in the record,
and the defendant's argument largely amounts to a dispute of the
credibility of witnesses and of the weight the judge gave to
certain evidence.

7
question, we review for error, and if one occurred, whether it

created a substantial risk of miscarriage of justice.5 See

Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002). We

conclude that it did not.

The defendant's concern with the prosecutor's question is

that it may have led the jury to believe that the defendant knew

the victim had been stabbed before his arrest, contradicting his

earlier testimony and suggesting his culpability in the

stabbing. Even if the question had been more properly worded,

it was not asked in bad faith. Although the defendant did not

use the word "stabbing," in his Google search, he did use the

word "homicide" and clicked on a news article stating that a

forty-seven year old New Bedford man had recently died of stab

wounds. As the motion judge held, this belies the defendant's

testimony that he did not know the victim had been stabbed until

he was at the police station when he was arrested. Thus, the

prosecutor's improperly worded question did not create a

substantial risk of a miscarriage of justice.

5 As stated above, it is of no moment that the defendant
also frames the issue as one of ineffective assistance for trial
counsel's failure to object. See Commonwealth v. Curtis, 417
Mass. 619, 624 n.4 (1994) (if counsel's omission does not
present substantial risk of miscarriage of justice, no basis for
ineffective assistance of counsel claim under either Federal or
State Constitution).

8
3. "King C" testimony. The defendant also claims that it

was an abuse of discretion for the judge to allow the

prosecutor, over objection, to ask the defendant who "King C"

was as listed in his cell phone directory. We disagree.

As stated above, "[m]otions for a new trial are granted

only in extraordinary circumstances," Comita, 441 Mass. at 93,

and we "examine the motion judge's conclusions only to determine

whether there has been a significant error of law or other

abuses of discretion" (citation omitted). Commonwealth v.

Ferreira, 481 Mass. 641, 648 (2019). Here, where the challenge

is to an evidentiary decision, we review for an abuse of

discretion. Simmons v. Chace, 105 Mass. App. Ct. 550, 555

(2025). A decision constitutes an abuse of discretion where "we

conclude the judge made a clear error of judgment in weighing

the factors relevant to the decision, such that the decision

falls outside the range of reasonable alternatives" (quotations

and citations omitted). L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014).

While the defendant had concerns that the name "King" might

implicate him having ties to the gang known as "the Latin

Kings," the judge, well within his discretion, determined that

9
"the name King is [not] automatically a gang reference."6

Furthermore, there was no evidence put forth by the Commonwealth

that the defendant was affiliated or participated in any gang

activity, the Commonwealth did not reference the Latin Kings

throughout trial, and the judge explicitly excluded gang

references. In addition, the Commonwealth did not enter

evidence of other contact names including the name "King."

Since gang references were excluded, and "King" could be a

nickname or someone's last name, the allowance of testimony

regarding the contact's name of "King C" was not an abuse of

discretion.

1. Cumulative effect of alleged errors. Lastly, the

defendant argues that the evidence in cumulation poses a

substantial risk of a miscarriage of justice. Given our

conclusions above, the defendant's claim that the alleged errors

6 The judge offered to strike the reference to "King" after
the fact, but trial counsel declined so as to not bring
attention to it.

10
cumulatively created a substantial risk of a miscarriage of

justice must also fail.7

Judgments affirmed.

Order denying motion to set
aside verdict affirmed.

Order denying motion for new
trial affirmed.

By the Court (Blake, C.J.,
Meade & Tan, JJ.8),

Clerk
Entered: March 12, 2026.

7 The defendant's citation to Commonwealth v. Rosario, 477
Mass. 69, 77-78 (2017), as support for his cumulative error
claim is not persuasive. Rosario outlines an example where an
appellate court will affirm an order granting a new trial "even
though none of the usual reasons for doing so (e.g.,
constitutional error, newly discovered evidence, or ineffective
assistance of counsel) were present." Id. at 78. In Rosario,
and in the cases cited therein, see id., the procedural posture
was materially different from here where the motion judge denied
the motion for a new trial.

8 The panelists are listed in order of seniority.

11