463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

counsel for Ronald Mendes actually stated in·his
opening statement, "My client is going to concede that
he had marijuana in his house and had cocaine in his
house, but those were for his own personal use .... " (Tr.
The bare appellate record will only rarely
afford a basis for concluding - by any standard -- that
a defendant's decision to testify was not "in response
to" the way that certain facts were proven in the
Commonwealth's case in chief. Indeed, in general, it
stands to reason that appellate courts, in any direct
appeal, will find it exceedingly difficult to determine
why a defendant chose to testify, because that decision
is made (and should be made) under the protection of
the attorney-client privilege. The defendant's
approach is simply unworkable and unfair.
But mainly, there is just nb need to abandon our
traditional harmless error analysis to deal with
Melendez-Diaz errors. This Honorable Court applied our
traditional harmless error analysis, and the Degraca
factors (including "the premise of the defense" factor
and "whether the erroneously admitted evidence was
merely cumulative of properly admitted evidence"
factor); in all sorts of contexts. This Court has had
no problem applying the "premise of the defense"
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