Berry v. Commonwealth

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SJC-13789

JERMAINE BERRY vs. COMMONWEALTH.

Suffolk. November 3, 2025. - March 12, 2026.

Present: Budd, C.J., Gaziano, Kafker, Georges, Dewar,

& Wolohojian, JJ.

Practice, Criminal, Postconviction relief, Sentence, Psychiatric

examination, Reciprocal discovery, Discovery.

Constitutional Law, Sentence. Evidence, Expert opinion.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on May 28, 2025.

The case was heard by Wendlandt, J.

Elizabeth Caddick for the petitioner.

Elisabeth Martino, Assistant District Attorney, for the

Commonwealth.

GEORGES, J. This case presents a narrow question:

whether, in postconviction resentencing proceedings under Mass.

R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001) (rule

30), a judge may permit limited discovery in the form of a

2

court-ordered psychiatric examination of a defendant1 who elects

to rely on expert opinion derived from a personal examination.

The defendant was convicted of several nonmurder offenses

committed as an emerging adult. He received an aggregate State

prison sentence requiring at least thirty-one years of

incarceration before parole eligibility, which exceeds the

parole eligibility that is now applicable to emerging adult

offenders convicted of murder in the first degree. See

Commonwealth v. Mattis, 493 Mass. 216, 237 (2024). Relying on

Mattis, the defendant moved for resentencing under rule 30,

asserting that his sentence violates art. 26 of the

Massachusetts Declaration of Rights.

In preparation for the resentencing hearing, the defendant

retained an expert who conducted a psychological examination and

provided a report to the Commonwealth based on that examination.

The Commonwealth then moved for a reciprocal court-ordered

psychiatric examination by its own expert, which a Superior

Court judge (motion judge) allowed. The examination authorized

by the motion judge was expressly premised on the judge's

expectation that the defendant would present expert testimony at

the resentencing hearing regarding his own expert's recent

1 Although Jermaine Berry commenced this action by filing a

petition in the county court, for convenience, we refer to him

as the defendant.

3

psychological evaluation of the defendant. Before the court-

ordered examination occurred, the defendant filed a petition in

the county court seeking relief from that order. A single

justice denied the petition, and the defendant appealed.

For the reasons that follow, we conclude that the single

justice did not err or abuse her discretion in denying relief.

The judgment of the single justice is therefore affirmed.

Background. In 2005, the defendant was convicted of

multiple offenses, including assault with intent to kill,

stemming from his shooting at police officers two years earlier.

He was twenty years old at the time of the offenses. The

defendant received consecutive sentences totaling from thirty-

one to forty-three years in State prison, with parole

eligibility after thirty-one years, followed by fifteen years of

probation. The Appeals Court affirmed the convictions in 2011.

See Commonwealth v. Berry, 80 Mass. App. Ct. 1115 (2011).

In July 2024, the defendant moved for resentencing under

rule 30. In connection with that motion, he sought and obtained

funds for expert assistance and retained Dr. Maryanne Galvin, a

licensed and board-certified forensic psychologist who

previously had testified on his behalf at his trial. After

meeting with the defendant for approximately seven hours over

two days in December 2024, Galvin issued a report based "in

large part" on those interviews.

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The report addressed the defendant's mental health history

from childhood through the time of the offenses and his conduct

during incarceration. Galvin also administered the Historical

Clinical Risk Management-20, Version 3 Scale (HCR-20V3), a

structured professional judgment tool used to assess risk of

violence through interview data and records review. Based on

that assessment, Galvin rated the defendant's risk of imminent

violence, serious harm, and over-all "summary risk" as low and

ultimately opined that he had been rehabilitated.

Following disclosure of the report, the Commonwealth moved

for an order requiring the defendant to submit to an independent

examination by its expert, Dr. David Kroll. Drawing an analogy

to the reciprocal examination procedures outlined in Mass. R.

Crim. P. 14.4, 495 Mass. 1515 (2024) (rule 14.4),2 the

Commonwealth argued that the defendant had placed his mental

condition at issue by indicating he would rely on expert opinion

derived from a personal psychological examination, thereby

2 The Commonwealth -- and, subsequently, the motion judge --

referred to the prior Mass. R. Crim. P. 14 (b) (2), as appearing

in 463 Mass. 1501 (2012). As of March 2025, rule 14.4

"replace[d]" rule 14 (b) (2) with "no substantive changes."

Reporter's Notes (2025) to Mass. R. Crim. P. 14.4, Massachusetts

Rules of Court, Rules of Criminal Procedure, at 176 (Thomson

Reuters 2025). To avoid confusion, when addressing the motion

judge's decision in this opinion, we refer to rule 14.4.

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justifying a comparable examination by the Commonwealth's

expert.

The motion judge agreed. Anticipating that the defendant

would present expert testimony regarding "his mental health and

rehabilitation" at resentencing, the judge reasoned that

fairness required that the Commonwealth's expert "be afforded

the same opportunity" to evaluate the defendant's mental

condition and rehabilitation. The judge therefore allowed the

Commonwealth's motion.

The defendant petitioned a single justice of the county

court pursuant to G. L. c. 211, § 3, seeking to vacate the

order. The single justice denied relief without a hearing,

concluding that the motion judge did not abuse her discretion in

allowing the examination. The defendant now appeals, pursuant

to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).3

Discussion. In reviewing a petition under G. L. c. 211,

§ 3, a single justice first determines whether to reach the

3 The defendant moved to expand the record to include the

transcript of a hearing that occurred after the single justice

denied the petition. He asserts that, at the hearing, the

motion judge suggested that the Commonwealth would be entitled

to a compelled psychiatric examination even if the defendant

ultimately chose not to rely on expert testimony at the

resentencing. We deny the motion and decline to consider the

subsequent hearing in evaluating the validity of the challenged

order. See Campiti v. Commonwealth, 426 Mass. 1004, 1005 (1997)

(declining to review matters arising after proceeding before

single justice).

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merits. See Commonwealth v. Fontanez, 482 Mass. 22, 24 (2019).

Because the single justice reached the merits here, we do so as

well, reviewing her decision for abuse of discretion or other

error of law. See Commonwealth v. Clark, 454 Mass. 1001, 1002

(2009). To the extent the ruling turns on a question of law,

our review is de novo. See Lewis v. Commonwealth, 497 Mass. 99,

101 (2026).

The examination order was issued in connection with the

defendant's motion for resentencing under rule 30. It is

therefore properly analyzed as a postconviction discovery order

pursuant to rule 30 (c) (4), rather than as one implicating

trial-stage procedures governing competency or criminal

responsibility. Whether rule 30 permits a court-ordered

psychiatric examination presents a question of law that we

review de novo, see Lewis, 497 Mass. at 101, whereas the motion

judge's decision to allow such discovery is reviewed for abuse

of discretion, see Commonwealth v. Stewart, 383 Mass. 253, 261

(1981) (postconviction discovery under rule 30 "is properly left

to the judge's discretion").4

4 The defendant asserted for the first time in his G. L.

c. 211, § 3, petition that the motion judge's order violates

several constitutional rights, including his right against self-

incrimination under the Fifth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights. These issues were not raised before the motion judge,

and we therefore decline to address them. See Yatia Y. v. Safi,

495 Mass. 1033, 1035 (2025) ("review under G. L. c. 211, § 3,

7

1. Postconviction discovery under rule 30. Postconviction

discovery is not limited to documentary material but may

encompass other forms of evidence. See Reporters' Notes to Rule

30, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at

607 (LexisNexis 2025) (judge may order production of "evidence

or statements," which "in an unusual case may include

depositions"). See also Commonwealth v. Gaulden, 383 Mass. 543,

552 (1981) ("we appropriately may look to the reporters' notes

for guidance" in construing meaning of rules of criminal

procedure). Where a defendant, in moving for postconviction

relief, relies on expert opinion grounded in a personal

examination, a judge may determine that a limited reciprocal

examination is an appropriate form of discovery to assess the

weight and credibility of that evidence. Cf. Commonwealth v.

Ostrander, 441 Mass. 344, 354, cert. denied, 543 U.S. 867 (2004)

(cross-examination of defendant's expert on voluntariness of

confession "is an inadequate substitute for actual testimony

from another qualified expert who has examined the defendant").

was not the time . . . to raise new arguments"); Baez v.

Commonwealth, 494 Mass. 1001, 1002 n.4 (2024) (declining to

address "constitutional questions [that] were not properly

before" single justice, where defendant failed to make these

arguments in District Court).

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A psychiatric examination, like other forms of discovery

under rule 30 (c) (4), is "not a matter of right." Commonwealth

v. Arriaga, 438 Mass. 556, 569 (2003). Rather, the defendant

first must make a prima facie case of entitlement to rule 30

relief, after which the judge may permit appropriate discovery

subject to protective conditions. See Mass. R. Crim. P.

30 (c) (4).

We consider first whether the defendant established a prima

facie case before addressing the propriety of the court-ordered

psychiatric examination.

a. Prima facie case for relief. As explained below, the

defendant has established a prima facie case for relief by

demonstrating that his aggregate sentence is presumptively

disproportionate under art. 26.5 Whether he has met his burden

turns on the scope of art. 26 protections following our decision

in Mattis, 493 Mass. 216. We therefore briefly summarize the

governing sentencing framework before addressing the defendant's

showing.

i. Presumptively disproportionate sentences post-Mattis.

Under art. 26, a sentence constitutes cruel or unusual

punishment if it is "so disproportionate to the crime" that it

"shocks the conscience and offends fundamental notions of human

5 The Commonwealth does not contest this showing.

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dignity" (citation omitted). Commonwealth v. LaPlante, 482

Mass. 399, 403 (2019). See Diatchenko v. District Attorney for

the Suffolk Dist., 466 Mass. 655, 669 (2013) (Diatchenko I),

S.C., 471 Mass. 12 (2015). In Diatchenko I, supra at 671, we

held that a sentence of life without the possibility of parole

for a juvenile convicted of murder in the first degree violates

art. 26. Building on subsequent scientific developments, we

later extended related constitutional protections to emerging

adults -- individuals who were eighteen, nineteen, or twenty

years old at the time of the murder. See Mattis, 493 Mass. at

234-235. See also id. at 217 (defining "emerging adults" as

"those who were eighteen, nineteen, and twenty years of age when

they committed the crime"). As a result, emerging adults

convicted of murder in the first degree are entitled to parole

eligibility. See id. at 235-237.

These constitutional principles are not confined to murder

convictions. In Commonwealth v. Perez, 477 Mass. 677, 685-686

(2017) (Perez I), S.C., 480 Mass. 562 (2018), we held that a

juvenile's aggregate sentence for nonmurder offenses that

produces a later parole eligibility date than that applicable to

a juvenile convicted of murder is presumptively disproportionate

under art. 26. The reasoning of Perez I applies equally to

emerging adults. Compare Perez I, supra at 683 ("children are

constitutionally different from adults for purposes of

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sentencing" [citation omitted]), with Mattis, 493 Mass. at 238

("unique characteristics of emerging adults . . . render them

constitutionally different from adults for purposes of

sentencing" [quotations and citation omitted]).

Accordingly, an emerging adult's aggregate sentence for

nonmurder offenses that delays parole eligibility beyond that

applicable to an emerging adult convicted of murder is

"presumptively disproportionate" under art. 26. Perez I, 477

Mass. at 685-686. In such circumstances, the offender is

entitled to an individualized sentencing proceeding consistent

with Miller v. Alabama, 567 U.S. 460 (2012), to determine

whether "extraordinary circumstances" justify treating the

emerging adult convicted of nonmurder offenses more harshly for

parole purposes than an emerging adult convicted of murder.

Perez I, supra at 686. See Miller, supra at 477-478 (requiring

individualized sentencing that considers defendant's youth,

background, and circumstances of offense).

ii. The defendant's showing. A defendant establishes a

prima facie case for relief under rule 30 through affidavits and

supporting documentation. See Mass. R. Crim. P. 30 (c) (4).

Here, the defendant submitted an affidavit, the mittimus6 for

6 "A mittimus is a ministerial document . . . executed on

behalf of the court by a clerk, addressed to the sheriff who had

custody of the accused during trial and to the future custodian

(sheriff or superintendent of a correctional institution) of the

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each offense of conviction, and Department of Correction records

establishing his age and date of birth. Those materials

demonstrate that the defendant, an emerging adult at the time of

the offenses, is serving an aggregate sentence of from thirty-

one to forty-three years in State prison. Had he been convicted

of murder in the first degree, he would have been eligible for

parole after fifteen years. See Mattis, 493 Mass. at 237.

Because the defendant's aggregate sentence for nonmurder

offenses requires more than twice as many years of incarceration

before parole eligibility as would apply to an emerging adult

convicted of murder, his sentence is presumptively

disproportionate under art. 26. On this undisputed record, the

defendant therefore has established a prima facie case for

relief under rule 30.

b. Availability of court-ordered psychiatric examination.

Once a prima facie showing is made, rule 30 authorizes a judge

to permit appropriate discovery on "motion of any party,"

including the Commonwealth (emphasis added). Mass. R. Crim.

P. 30 (c) (4). Although postconviction discovery often is

sought by defendants to develop evidence otherwise "unknown to

prisoner, that . . . states what the sentence is, and states how

many days of the sentence the prisoner is deemed to have served,

commonly while awaiting trial and sentencing" (quotation and

citation omitted). Perez v. Commonwealth, 496 Mass. 381, 382

n.2 (2025).

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the court" to support "an apparently meritorious claim"

(citation omitted), Commonwealth v. Daniels, 445 Mass. 392, 406

(2005), permitting appropriate discovery by the Commonwealth

ensures that resentencing decisions rest on accurate and

complete information, see Commonwealth v. Plasse, 481 Mass. 199,

206 (2019).7

Where, as here, the defendant relies on expert opinion

grounded substantially in recent personal interviews and

clinical judgment concerning his mental state and

rehabilitation, permitting the Commonwealth to obtain a

corresponding psychiatric examination serves that purpose. Such

reciprocity helps ensure that the sentencing judge is not

presented with a one-sided expert narrative that cannot be

meaningfully tested through cross-examination alone. Cf.

Ostrander, 441 Mass. at 353 (allowing trier of fact to hear

"countervailing expert views, based on similar testimonial

statements of a defendant" promotes fair result [citation

omitted]); Commonwealth v. Wayne W., 414 Mass. 218, 231 (1993)

(reciprocal psychiatric examination of defendant prevents "the

7 Such information includes a defendant's psychological

functioning at the time of the offense, capacity for

rehabilitation, and postsentencing conduct, which bear on

whether extraordinary circumstances justify delaying parole

eligibility beyond that applicable to an emerging adult

convicted of murder. See LaPlante, 482 Mass. at 404-406;

Commonwealth v. Costa, 472 Mass. 139, 147-149 (2015).

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distorting effect on the fact finder's role" that might occur if

only one party could introduce expert testimony on crucial

issue).

The Commonwealth is not entitled to parity for its own

sake. Rather, the motion judge permissibly concluded that

fundamental fairness and accurate fact finding warranted

affording the Commonwealth's expert a meaningful opportunity to

evaluate the same subject matter underlying the defendant's

expert opinion. That determination reflects the practical

reality that expert conclusions derived from recent clinical

interviews and professional judgment concerning a defendant's

mental condition and rehabilitation cannot always be fully

assessed through documentary evidence or cross-examination

alone. See Ostrander, 441 Mass. at 354 ("in most instances the

only means of rebuttal" of favorable psychological testimony is

"other psychological testimony").

Our holding is limited. We do not suggest that a

psychiatric examination is warranted whenever a defendant seeks

resentencing or introduces generalized mitigation evidence.

Instead, a motion judge acts within his or her discretion where,

as here, the defendant's expert opinion rests substantially on

personal interviews and clinical assessment addressing the

defendant's psychological functioning -- a matter not readily

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susceptible to meaningful assessment without comparable

evaluation.

2. Utilization of rule 14.4 procedure. The defendant

contends that the motion judge abused her discretion by relying

on rule 14.4 to order a psychiatric examination, arguing that

rule 14.4 governs only pretrial proceedings. This argument

mischaracterizes the order.

Although the motion judge referenced the Commonwealth's

analogy to rule 14.4, she did not treat that rule as an

independent source of authority. Rather, in the absence of an

explicit procedure under rule 30 addressing postconviction

psychiatric examinations, the judge appropriately looked to rule

14.4 for guidance and adapted certain procedures to the rule 30

context. Cf. Commonwealth v. Teixeira, 475 Mass. 482, 490

(2016) (even where discovery is not explicitly authorized by

statute, court's inherent powers include "authority to

facilitate . . . discovery" [quotation and citation omitted]).

In doing so, the judge retained authority to impose protective

conditions tailored to postconviction discovery, including

limitations on the scope of questioning and restrictions on the

use of any statements obtained during the examination. See

Mass. R. Crim. P. 30 (c) (4) (judge "may authorize such

discovery as is deemed appropriate, subject to appropriate

protective order"). Nothing in the order suggests that the

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Commonwealth may use the defendant's statements for purposes

beyond the resentencing proceeding, and rule 30 (c) (4)

contemplates that discovery be conducted subject to such

safeguards. See id.

Adapting the procedures from rule 14.4 is consistent with

the structure and origins of rule 30 itself. Rule 30 is drawn

in part from the American Bar Association's Postconviction

Remedies Standards, which contemplate the use of techniques

"specifically adapted" to assist courts in resolving

postconviction claims. 4 American Bar Association, Standards

for Criminal Justice, Postconviction Remedies Standard 22–

4.5(a), at 22–46 (2d ed. 1986). See Reporters' Notes to Rule

30, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at

603 (LexisNexis 2025). Under rule 14.4, a psychiatric

examination based on a defendant's statements may be ordered

where the defendant intends to offer expert testimony derived

from those statements or where there is otherwise a reasonable

likelihood that the defendant will do so. See Mass. R. Crim. P.

14.4 (b) (1) (A). Here, the motion judge implicitly made that

finding, expressly anticipating the admission of Galvin's report

and testimony at the resentencing hearing.8

8 The defendant argues that he did not provide formal notice

of an intent to rely on a psychiatric examination at the Miller

hearing. He does not, however, address whether --

notwithstanding the absence of a more formal notice -- there was

16

In these circumstances, the motion judge acted well within

the "broad discretion" afforded by rule 30 (c) (4) (citation

omitted). Commonwealth v. Goparian, 496 Mass. 348, 364 (2025).

Her adaptation of rule 14.4 procedures was appropriate given

that both rules serve the "truth-seeking function" of criminal

adjudication. Commonwealth v. Hanright, 465 Mass. 639, 644

(2013) (rule 14). See Daniels, 445 Mass. at 406 (rule 30).

Conclusion. Resentencing proceedings, like original

sentencing hearings, permit consideration of a broad range of

information bearing on the defendant's characteristics,

background, and prospects for rehabilitation. See Commonwealth

v. Costa, 472 Mass. 139, 147 (2015). Where a defendant elects

to present mental health evidence derived from a personal

examination, allowing a limited reciprocal evaluation serves the

a reasonable likelihood that he would introduce such evidence.

See Mass. R. Crim. P. 14.4 (b) (1) (A). Nor has he included the

record materials necessary to assess whether the motion judge's

implicit finding on that point was clearly erroneous. See

Sabree v. Commonwealth, 479 Mass. 1006, 1007 (2018) ("A

petitioner must also create a record to substantiate his

allegations").

The record instead reflects that the defendant obtained

expert funds in connection with his resentencing motion and

disclosed his expert's report to the Commonwealth shortly after

it was prepared. On this record, we cannot conclude that the

motion judge erred in finding a reasonable likelihood that the

defendant would offer expert testimony at the Miller hearing.

See Commonwealth v. Woods, 419 Mass. 366, 371 (1995) ("The

burden is on the appellant to ensure that an adequate record

exists for an appellate court to evaluate").

17

societal interest of ensuring a "fair inquiry" into this

critical issue (citation omitted). Wayne W., 414 Mass. at 231.

Here, the motion judge did not abuse her discretion or

otherwise err in permitting the Commonwealth to obtain a

psychiatric examination where there was a reasonable likelihood

that the defendant would rely on psychological expert testimony

derived from his own statements. The single justice likewise

did not abuse her discretion or err in denying the defendant's

petition.

Judgment affirmed.