Skip to main content


Reset A A Font size: Print

Appeals Court of Massachusetts.



Decided: October 04, 2021

By the Court (Meade, Shin & Walsh, JJ.1)


A jury convicted the defendant of assault and battery on a family or household member, intimidation of a witness, and assault and battery on a police officer. The defendant argues on appeal that the trial judge erred by admitting testimony that referred to a G. L. c. 209A order (abuse prevention order) obtained by a victim of one of the assaults. He also argues that the prosecutor's closing argument was improper. We affirm.

Background. The jury could have found the following facts. The defendant and his then-girlfriend (victim) were living together in a Fall River apartment. On the night of September 8, 2018, the defendant became upset with the victim and hit her several times on the head, face, and eye. At one point the defendant grabbed the victim by her neck and squeezed.

The victim was able to escape and run to the living room. After retrieving two knives from the kitchen, the defendant followed the victim to the living room and waved the knives in her face.2 At the same time, he yelled, “If the cops come, this is going to end up being real bad for you and real bad for me.” The victim did not call the police.

The police responded to the apartment in any event after a passerby called to report screaming. Officer Raul Camara spoke with the victim and saw that she had redness on her eye and neck and was crying, shaking, and “sweating profusely.” The defendant was arrested, and Officer David McElroy escorted him to a cruiser. As Officer McElroy was standing outside the cruiser, he heard a thumping noise, opened the door, and saw the defendant hitting his head on a plexiglass divider. Officer McElroy tried to stop the defendant, but the defendant bit Officer McElroy's arm and refused to let go, even as Officer McElroy punched him.

The defendant was eventually transported to the hospital to be treated for his injuries. Later, after taking the victim to the police station, Officer Camara arrived at the hospital “[t]o serve [the defendant] with a restraining order.” When Officer Camara tried to give the defendant the order, the defendant threw it on the floor. As Officer Camara went to give the order back to the defendant, the defendant punched him in the chest.3

Discussion. 1. Testimony about the abuse prevention order. The defendant argues that the judge erred by allowing Officer Camara to testify that he was trying to serve an abuse prevention order (referred to by him as a restraining order). The defendant concedes that this evidence was relevant to show that Officer Camara was “engaged in the performance of his duties,” an element of the offense of assault and battery on a police officer. G. L. c. 265, § 13D. Nonetheless, the defendant contends that the risk of unfair prejudice from the evidence substantially outweighed its probative value. We disagree.4

In both Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 106 (2014), and Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 512 (2001), on which the defendant relies, the abuse prevention order itself was admitted in evidence. As a result, the juries there “were presented with a judicial determination that there was ‘a substantial likelihood of immediate danger of abuse’ of [the victim] by the defendant.” Foreman, supra at 514. See Reddy, supra at 108. This was the error in both cases that was deemed to create a substantial risk of a miscarriage of justice. See Reddy, supra at 109-111; Foreman, supra at 514-515. In other words it was the “introduction of the entire order, with all of the extraneous and prejudicial information contained therein,” that required a new trial. Foreman, supra at 514.

In contrast, here, the abuse prevention order was not admitted in evidence, and no witness testified as to its content. Rather, the evidence was limited to Officer Camara's testimony that his purpose for visiting the defendant's hospital room was to serve the defendant with the order. The judge did not abuse his discretion in admitting this limited testimony. See Commonwealth v. Brea, 488 Mass. 150, 159 (2021) (“We review a judge's evidentiary ruling for abuse of discretion”). As the judge found, the testimony was relevant to whether Officer Camara was acting “in his official responsibility” and to explain “the story.” Although the judge considered the defendant's proposal that Officer Camara refer to “court papers” or “legal process,” instead of the abuse prevention order, the judge found that “the nature of the papers being served” was relevant to “some of the conduct that the defendant [was] charged with, in terms of his reaction to it.” The judge was within his discretion to so find.

The judge was also within his discretion to find that the probative value of the testimony was not substantially outweighed by the risk of unfair prejudice. Because the abuse prevention order was not in evidence, and the jury heard nothing about its content, this is not a situation where a “judicial imprimatur” on the order lent it unfair weight. Reddy, 85 Mass. App. Ct. at 110. See Foreman, 52 Mass. App. Ct. at 514 (“introduction of limited testimony that [victim] sought and received a restraining order may have been justified,” but introduction of order itself was not). We note that the jury acquitted the defendant of assault by means of a dangerous weapon, indicating that they did not credit all of the victim's testimony and were not improperly swayed. See, e.g., Commonwealth v. McLaughlin, 431 Mass. 506, 512 (2000).

2. Closing argument. The defendant raises three challenges to the prosecutor's closing argument, none of which were preserved at trial. We therefore review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Henley, 488 Mass. 95, 132 (2021).

The defendant first argues that the prosecutor misstated the evidence when he said the following: “[The victim] had knives held up to her. She was threatened, ․ with the defendant indicating to her, ‘If you call the police this is gonna be really bad for you and for me.’ ” As the defendant observes, the victim's precise testimony was the following: “[The defendant] said, ‘If the cops come, this is going to end up being real bad for you and real bad for me.’ ” We conclude that the prosecutor's characterization was not improper. It was a fair inference from the defendant's statement, “If the cops come,” and his simultaneous act of holding knives up to the victim's face, that he was trying to prevent her from calling the police. See Commonwealth v. Rivera, 482 Mass. 259, 270 (2019) (prosecutor may argue fair inferences drawn from evidence); Commonwealth v. Evans, 439 Mass. 184, 194, cert. denied, 540 U.S. 923 (2003) (not improper for prosecutor to paraphrase testimony). Indeed, after asking the victim what the defendant said, the prosecutor immediately followed with whether the victim ever called the police, to which the victim responded that she had not. To the extent there was error, moreover, it did not create a substantial risk of a miscarriage of justice in light of the judge's instructions that closing arguments are not evidence and that the jury's collective memory of the evidence controlled. See, e.g., Rivera, supra at 270-271.

The defendant next argues that the prosecutor improperly vouched for the victim by describing her reaction after the incident as “the way you would expect someone to react who had been hit by their long-time partner.” This was not vouching. The prosecutor did not “express[ ] a personal belief in the credibility of [the] witness, or indicate[ ] that he ․ [had] knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Instead, he properly “ask[ed] [the] jury to rely on their common sense and life experience in assessing evidence and credibility.” Commonwealth v. Salazar, 481 Mass. 105, 117 (2018).

Finally, the defendant challenges the prosecutor's recounting of Officer Camara's testimony that it is his general practice to explain abuse prevention orders when he serves them so that the recipient cannot later say that he or she did not understand the terms of the order. According to the defendant, this argument improperly speculated that he would violate the abuse prevention order in the future, appealed to the jury's emotions by suggesting that the victim had continuing reason to fear him, and implied that he had a general criminal propensity. We disagree on all counts. The prosecutor's comments merely described the steps that Officer Camara took when he arrived at the hospital and why he took them. It is evident in context that the comments were intended to counter the suggestion raised by the defendant -- both in his cross-examination of Officer Camara and in his closing -- that Officer Camara antagonized the defendant when he arrived at his hospital room. Furthermore, the jury acquitted the defendant of two charges, demonstrating that they were not influenced by emotion or any perception of the defendant's criminal propensity. We discern neither error nor a substantial risk of a miscarriage of justice.

Judgments affirmed.


2.   The jury acquitted the defendant of assault by means of a dangerous weapon.

3.   The jury acquitted the defendant of assault and battery on Officer Camara.

4.   The defendant claims that he preserved the issue by filing a motion in limine to preclude all witnesses from testifying about the abuse prevention order. On the other hand, the Commonwealth claims that, during the discussion of the motion, the defendant did not object to the aspect of the judge's ruling allowing Officer Camara to testify about the abuse prevention order “for the purpose of explaining what happened.” We need not resolve this conflict because we would reach the same result whether reviewing for prejudicial error or for a substantial risk of a miscarriage of justice.

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard