Commonwealth v. Gomes, 89 N.E.3d 1148

Jeremy D. Gomes was convicted (mayhem; breaking and entering a vehicle at night with intent to commit a felony) and the convictions were affirmed in 2015.
At trial Gomes requested a jury instruction on eyewitness identification modeled on recent research-driven instructions (mirroring New Jersey/Henderson principles); the judge instead used the older Rodriguez instruction previously adopted by the Massachusetts Supreme Judicial Court.
After this court in Gomes proposed a revised eyewitness-identification model instruction based on scientific consensus, Gomes moved for a new trial arguing ineffective assistance because defense counsel did not supply expert testimony or scholarly materials to support the newer instruction at trial.
The motion judge (also the trial judge) denied the new-trial motion, finding counsel made a tactical choice not to present expert/scholarly evidence and that decision was not manifestly unreasonable.
On appeal the Court reviewed the ineffective-assistance claim de novo with deference to tactical choices and also considered (though it was not raised below) Gomes’s miscarriage-of-justice argument; the Court affirmed the denial of a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not presenting expert testimony/scholarly support to get an updated eyewitness-identification instruction	Counsel’s failure prevented the judge from finding the scientific principles generally accepted, so counsel’s omission was serious incompetence	Counsel chose tactically not to present experts; doing so might have helped or hurt credibility — decision was reasonable	Counsel’s decision was a tactical choice not manifestly unreasonable; no ineffective assistance
Whether withholding expert/scholarly evidence was per se incompetence because it failed to secure a modern instruction	Failure to secure the newer instruction shows serious incompetence	Attorneys are not incompetent for declining a difficult evidentiary/strategic gambit; competence does not require perfection	Not per se incompetence; lawyers need competence, not perfection
Whether there is a substantial risk of a miscarriage of justice warranting a new trial	Even if counsel was not ineffective, convictions may be tainted and a new trial is necessary	Weight of evidence supports the convictions; no substantial miscarriage of justice shown	No substantial risk of miscarriage of justice given the evidence; no new trial granted

Commonwealth v. Gomes, 470 Mass. 352 (opinion affirming convictions and proposing revised eyewitness instruction)
Commonwealth v. Rodriguez, 378 Mass. 296 (adopted earlier model eyewitness-identification instruction)
Commonwealth v. LaBrie, 473 Mass. 754 (standard for ineffective assistance review)
Commonwealth v. Saferian, 366 Mass. 89 (establishes ineffective-assistance framework)
Commonwealth v. Kolenovic, 471 Mass. 664 (deference to tactical/strategic counsel decisions)
Commonwealth v. Pillai, 445 Mass. 175 (competence standard for counsel)
Commonwealth v. Lanoue, 409 Mass. 1 (counsel performance within ordinary fallible attorney standard)
Commonwealth v. Epps, 474 Mass. 743 (miscarriage-of-justice standard cited)
Commonwealth v. Brescia, 471 Mass. 381 (miscarriage-of-justice framework cited)