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Appeals Court of Massachusetts.



Decided: September 23, 2021

By the Court (Green, C.J., Singh & Hand, JJ.1)


After a jury trial in the Boston Municipal Court, the defendant was convicted of assault and battery,2 G. L. c. 265, § 13A (count one), and assault and battery on a family or household member, G. L. c. 265, § 13M (a) (count two).3 The judge denied the defendant's subsequent motion to vacate the assault and battery conviction as a lesser included offense of assault and battery on a family or household member, see Mass. R. Crim. P. 25, as amended, 420 Mass. 1502 (1995), and the defendant appealed from both his convictions and the denial of his motion to vacate. Because we agree with the defendant that the judge exceeded her discretion in precluding the defendant from offering evidence at trial of statements the victim made in e-mails, text messages, and Facebook 4 communications to the defendant (collectively, “electronic communications”), we vacate the defendant's conviction of assault and battery on a family or household member. Additionally, given the risk that, in the absence of a specific unanimity instruction, the jury's verdict on the assault and battery charge was based on the same facts the jury relied on in convicting the defendant of assault and battery on a family or household member, we reverse the order denying the defendant's posttrial motion to vacate his conviction of the former offense as duplicative of the conviction of the latter crime. See Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).

Background. In 2017, the defendant and the victim began dating, then living together, in Utah. Although they broke off their relationship in February 2018, and the victim moved to New Hampshire, the defendant and victim later resumed contact; they arranged to meet for a final weekend in Boston in July 2018 before parting ways permanently.

On the second day of the trip, July 20, 2018, the defendant and victim spent the day sightseeing and visiting local bars and restaurants, ultimately attending a comedy show in Faneuil Hall that night. The defendant and the victim each drank a number of alcoholic beverages.5

Although the prosecution and the defense agreed that the victim and the defendant left the comedy club together, their accounts of what transpired from there diverge. The victim testified that the defendant became angry about her texting while at the comedy show, and that when they left the comedy club he grabbed her cell phone, threw it on the ground, and stomped on it. She testified that the defendant then pushed her down, yelled at her, hit her, and kicked her as she lay on the ground.

A third-party witness for the prosecution testified that as he and his wife walked through Faneuil Hall on the night of July 20, he saw a man and woman who appeared to be arguing. He testified that from his vantage point about twenty-five to thirty feet away from those people, it appeared to him that the man “was either shaking [the woman] or ․ hitting her,” but conceded on cross-examination that he did not actually see the man hit the woman at that point and was only “guessing by her body movement” that the man had done so. The witness testified that as he ran over to intervene, the “[the man] struck [the woman] ․ and knocked her to the ground.”

In contrast, the defendant testified that once outside the comedy club, the phone slipped from the victim's hand, that he tried but failed to catch it, and that the phone then fell to the ground and broke. Upset, the victim threw a ring the defendant had given her at him and walked away. When the defendant caught up to the victim, she spun around and hit him in the neck with her hands. The defendant testified that when he put his hands up to prevent her from landing another blow, the victim, intoxicated and wearing platform shoes, stumbled backward on the uneven brick plaza and fell to the ground. He testified that he did not push the victim to the ground, and that he neither hit nor kicked her.

Discussion. 1. Exclusion of evidence of electronic communications. The defendant argues that because he was denied the opportunity at trial to introduce certain evidence of the victim's past communications and conduct toward him, his convictions should be vacated. We agree.

The Commonwealth's theory of the case was that the defendant became upset by the victim's texting during the comedy show, “lost control,” and erupted into an anger-driven physical attack on the victim.

The defendant sought to counter that argument by demonstrating that the victim, and not the defendant, had been controlling and manipulative throughout the course of the relationship, and that the victim's account of the defendant's July 20 attack was not credible. In support of that strategy, the defendant argued a pretrial motion in limine seeking to admit evidence of the victim's “prior bad acts” to give the jury a sense of the “hostile” and mercenary nature of her relationship with him.6

The judge expressed doubts about the relevance of much of this evidence and an intention to keep the trial focused on the events of July 20, ruling that the defendant could question the victim about her “name-calling,” but otherwise foreclosing the defendant's ability to use the electronic communications as substantive evidence.7

Provided the defendant was otherwise able to lay a proper foundation for the electronic communications, he should have been permitted to introduce them. The defendant was entitled to reasonable cross-examination to show motive or bias as part of his right to confront the witnesses against him as guaranteed under both the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Gallett, 481 Mass. 662, 682 (2019); Commonwealth v. Joyce, 382 Mass. 222, 225, 229 (1981). While we recognize that a trial judge has significant discretion in determining the scope of cross-examination, see Gallett, supra, we conclude that in this case the judge set the parameters of that examination too narrowly. See Commonwealth v. Miles, 420 Mass. 67, 72 (1995).

First, evidence of the electronic communications went directly to the nature of the parties’ relationship, a consideration that bore on the jury's assessment of the credibility of both the victim and the defendant. See Commonwealth v. Miller, 475 Mass. 212, 229 (2016) (evidence of prior bad acts and hostile relationships admissible to prove hostile nature of relationship between victim and defendant); Commonwealth v. Butler, 445 Mass. 568, 576 (2005) (jury entitled to consider evidence of witness's hostile relationship to defendant in assessing witness's credibility). The victim's testimony omitted any suggestion of acrimony in the relationship before July 20 and painted the decision to end the relationship as “mutual.” Based on the electronic communications, however, the jury could have concluded that the defendant decided that the relationship would end, and that his decision sparked an angry and vindictive response in the victim. If so, the jury could also have considered whether the victim's hostility toward the defendant carried over to their interaction on July 20, shading her account of the defendant's conduct on that day.

Second, to the extent that the electronic communications refuted the victim's testimony that the decisions to suspend and then terminate the relationship she and the defendant had were “mutual,” they were admissible as extrinsic evidence of the victim's prior inconsistent statements. See Mass. G. Evid. § 613 (a) (2) (2021).

“[W]eigh[ing] the materiality of the [victim's] direct testimony and the degree of the restriction on cross-examination,” Miles, 420 Mass. at 72, citing Commonwealth v. Kirouac, 405 Mass. 557, 561 (1989), we conclude that it was an abuse of discretion to preclude the defendant from offering the electronic communications for the reasons the judge appears to have relied on. Given that the defendant's motion in limine addresses the rulings on appeal, we treat the defendant's objections as preserved. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016). See also Commonwealth v. Dargon, 457 Mass. 387, 399 (2010). As we cannot say that the error “did not influence the jury, or had but very slight effect,” we conclude that it was prejudicial, and thus, that the defendant's conviction of assault and battery on a family or household member must be vacated.8 Dargon, supra, quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

2. Duplicative convictions. As the Commonwealth properly concedes, given the state of the evidence in this case, where the jury were not instructed on the requirement for specific unanimity, the defendant's conviction for assault and battery must be vacated as duplicative of his conviction for assault and battery on a family or household member. See Kelly, 470 Mass. at 700.

Conclusion. On count one of the complaint, the order denying the defendant's motion to vacate the judgment on the assault and battery conviction is reversed. The judgment on count one of the complaint is vacated, the verdict is set aside, and that count is to be dismissed. On count two of the complaint, charging assault and battery on a family or household member, the judgment is vacated and the verdict is set aside.

So ordered.

reversed in part; vacated in part


2.   The original charge was one of assault and battery with a dangerous weapon. G. L. c. 265, § 15A (b). At trial, the judge allowed the defendant's motion for required finding of not guilty as to so much of the charge as alleged the use of a dangerous weapon.

3.   The defendant was acquitted of malicious destruction of property under $1,200. G. L. c. 266, § 127.

4.   “ ‘Facebook’ is a social networking Web site that allows the electronic exchange of both written messages and images.” Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 735 n.1 (2014).

5.   The victim testified that she did not recall how many drinks she had over the course of the day. The defendant testified that he consumed approximately ten drinks, and that the victim consumed approximately eighteen drinks.

6.   Specifically, the defendant moved to admit evidence of electronic communications he claimed were sent to him by the victim during their relationship and before July 20, and which included derogatory references to the defendant and his son. The defendant represented that the victim referred to him as, inter alia, “a piece of shit,” “pathetic,” “a pussy,” a “short legged muppet,” an “oompa Lompa [sic],” a “mother fucker,” and an “asshole,” and called the defendant's then-eight year old son “dimwitted [and] fugly.” Additionally, the defendant moved to admit pre-July 20 electronic messages suggesting that he had broken off the relationship against the victim's wishes and that the victim threatened to file a lawsuit in Utah that she intimated could impact the defendant's medical license; a contract between the defendant and the victim outlining specific ways in which the defendant agreed to support the victim's lifestyle and financial requirements and including detailed provisions governing their sexual relationship; and evidence of two prior instances in which the victim struck the defendant in the head.

7.   We accept that the judge denied the motion, other than as to evidence of the victim's prior assaults on the defendant in December 2017 and early 2018. As we discuss, to the extent that the defendant challenges these remaining rulings, we need not, and do not, address them. See note 7, infra.

8.   Given our conclusion, we do not address the defendant's remaining claims of error at trial.

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