Background
In the early morning hours of October 28, 2012, David Yarde attended an apartment party on Tremont Street in Boston alongside Calvin Miranda, John Collins, and Victor Lewis. The victim, Deandre Russ, was also there. After leaving the party, the two groups exchanged words in the elevator about neighborhood affiliations—Yarde identifying with “Blue Hill Ave.” and the victim responding “Mission, Bitch.” Outside, surveillance cameras mounted on the building captured the critical moment: Yarde standing in front of the victim just before the camera panned away, and the victim lying on the ground when it returned. A second camera showed Yarde, Collins, and Lewis fleeing the scene, with Yarde appearing to carry an object at his right side. The victim was shot three times, including a fatal head wound; six shell casings were recovered.
Three weeks later, Yarde was arrested at Collins’s residence, where police found ammunition from the same manufacturers as the casings at the scene. A jury convicted him of murder in the second degree and unlawful possession of a firearm. Yarde then filed two motions for a new trial. In the first, he argued his trial counsel was ineffective for failing to retain a forensic pathologist, Dr. Elizabeth Laposata, and a visual media expert, Michael Garneau, and also raised Brady claims and a prosecutorial-misconduct challenge to the closing argument. In the second motion, he argued his postconviction counsel was in turn ineffective. The trial judge—who had also presided at trial—denied both, and Yarde brought a consolidated direct appeal to the Massachusetts Appeals Court.
The Court’s Holding
Affirmed. A panel of Desmond, Tan, and Wood, JJ. upheld the convictions and both orders denying new trial, applying the Saferian standard for ineffective assistance: counsel’s performance must have fallen below that of an ordinarily fallible lawyer and deprived the defendant of a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because Yarde’s IAC claims rested on alleged tactical failures, the panel also asked whether those decisions were “manifestly unreasonable when made.” Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015).
On Dr. Laposata, the court found that her admissible conclusions—consistent entrance and exit wounds, stippling indicating an intermediate-distance shot—were “completely consistent” with the Commonwealth’s own medical examiner and therefore cumulative. Her additional opinion that Yarde could not have been the shooter based on positioning was ruled to fall outside a forensic pathologist’s expertise; because that opinion would not have been admitted, counsel’s failure to present it could not constitute deficient performance. On the visual media expert, Mr. Garneau’s report added nothing material: his timing conclusions were evident from the video itself, and his positioning analysis “mimick[ed]” trial counsel’s own closing argument. The Brady claims failed because both allegedly withheld items—the victim’s firearm and ammunition found at Collins’s home—were disclosed in discovery and presented at trial. The prosecutorial-misconduct challenge to counsel’s “tucking” argument likewise failed: arguing that Yarde placed a weapon in his waistband as he ran was a fair inference from the video footage, reviewed under the substantial-risk-of-miscarriage-of-justice standard given the absence of a trial objection. And the juror-impartiality claim failed where the trial judge had promptly conducted a voir dire after the juror disclosed overhearing “he’s guilty” on a commuter train; the juror confirmed he could remain unbiased, and no party objected.
Key Takeaways
- Under Saferian, an IAC claim for failure to hire a forensic expert fails when the expert’s admissible opinions would have been cumulative to the Commonwealth’s own witness. A decision not to introduce cumulative testimony does not fall below professional norms and, in fact, is often a sound strategic choice. See Commonwealth v. Jacobs, 488 Mass. 597, 602 (2021).
- Admissibility is a threshold question in expert-based IAC claims. If a proposed expert’s opinion would likely have been excluded—here, a forensic pathologist opining on shooter positioning outside her domain—trial counsel cannot be faulted for not presenting it, and postconviction counsel must be prepared to show the opinion clears the admissibility bar.
- Brady suppression claims require showing the evidence was withheld from the defense. Where the allegedly suppressed material was disclosed in discovery and adduced at trial, the claim fails at its premise.
- A prosecutor’s closing may draw reasonable inferences from the evidence before the jury. Arguing that video footage shows a defendant carrying and concealing a weapon is permissible if the inference is “reasonable and possible,” even if not “necessary and inescapable.” Commonwealth v. Goddard, 476 Mass. 443, 449 (2017).
Why It Matters
Yarde illustrates a recurring IAC pitfall in Massachusetts criminal practice: postconviction litigants often retain experts whose conclusions substantially overlap with testimony the jury already heard. The cumulative-evidence principle cuts both ways. It protects trial counsel from hindsight attack when the omitted expert would not have moved the needle, but it also sets the postconviction bar: to succeed on an IAC claim grounded in expert omission, the defense must identify opinions that genuinely diverge from and undermine the Commonwealth’s case—not merely add nuance to evidence the jury received.
The decision also reinforces the admissibility-prerequisite for expert-based IAC claims. Where an expert’s potentially helpful opinion falls outside her established field, counsel cannot be second-guessed for leaving it out. Defense teams assembling postconviction IAC arguments should therefore work from the admissibility question outward: if the opinion would not have come in, the IAC claim built on it will not succeed either.