COMMONWEALTH v. JOHN CARVALHO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant was convicted of two counts of intimidation of a witness, see G. L. c. 268, § 13B, and one count of violation of a harassment prevention order, see G. L. c. 258E, § 9.¹ He appealed, and the convictions were affirmed by a different panel of this court. Commonwealth v. Carvalho, 88 Mass. App. Ct. 840 (2016). More than six years later, the defendant filed a motion for a new trial alleging that trial counsel and appellate counsel provided him with ineffective assistance of counsel. Specifically, the defendant claimed that the Commonwealth had failed to prove that the harassment prevention order was in effect on the day he allegedly violated it, and trial counsel was ineffective for not requesting a required finding of not guilty on that basis. The defendant further argued that the judge erred in admitting an unredacted copy of the harassment prevention order in evidence and that trial counsel was ineffective for not lodging an objection at that time. The defendant next claimed that the judge erred in preventing him from testifying about alleged threats directed at him by the victim. With regard to appellate counsel, the defendant asserted that the failure to raise the issues noted above on appeal constituted ineffective assistance of counsel. The motion was denied following a nonevidentiary hearing by the trial judge, and the defendant appealed. We affirm.

Discussion. We review a decision denying a motion for a new trial for abuse of discretion. Commonwealth v. Clemente, 452 Mass. 295, 304 (2008). We have conducted a careful review of the record and conclude that the judge did not abuse his discretion for the following reasons.

In order to prevail on a claim of ineffective assistance of counsel, a defendant has the burden of proving that “the behavior of [trial or appellate] counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived [him] of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Comita, 441 Mass 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (2004). Furthermore, when ineffective assistance of counsel claims are based on tactical or strategic decisions, those decisions must have been “ ‘manifestly unreasonable’ when made.” Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).

The defendant did not meet his burden. Although the Commonwealth's evidence was not overwhelming, on this unusual record, it was sufficient to prove beyond a reasonable doubt that the harassment prevention order was in effect on March 24, 2011, the day the defendant approached the victim and spoke to her while the two were present in the Fall River courthouse attending a hearing involving the defendant's son. We acknowledge that the Commonwealth should have introduced a certified copy of the order itself, but as the judge properly concluded, the Commonwealth overcame this omission with other evidence.² See Commonwealth v. Marrero, 85 Mass. App. Ct. 911, 912 n.2 (2014). To begin with, the victim testified that the order was in effect on March 24, 2011, when she attended the court proceeding. The defendant approached the victim and twice told her that she had to “drop” the no-contact order. The victim further testified that the order was obtained in 2010 and then renewed in “2011, 2012 and this year” and thus also was in effect at the time of trial. Furthermore, the victim's testimony was corroborated. As the victim explained, she immediately reported the incident to a police officer at the courthouse. That officer testified at trial and confirmed that the victim had made a report to him. The officer then told a court officer about the incident.

The court officer also testified at trial and relayed that she was told of the incident and that she reported it to the judge who was presiding over the hearing. Specifically, the court officer said that the police officer gave her a “piece of paper” which she then gave to the judge after which the defendant was instructed to leave the courtroom. In response to questions on cross-examination, the court officer provided additional details. She testified as follows:

“I explained to the judge that the police officer had handed me a piece of paper, that there was an incident between [the victim] and Mr. Carvalho, and that there was a harassment order in effect and if I could please show the judge so that Your Honor could ask the gentlemen to step out of the courtroom so that the police officer could speak to him.”

Furthermore, the defendant's comments themselves, telling the victim that she needed to “drop” the order, showed that there was an order in effect at that time.

In addition, it is significant to note that the existence of the order and the dates on which it was in effect were not contested issues at trial. The defendant testified and acknowledged that he was aware of the order and knew that he had to stay away from the victim. He maintained, however, that the stay-away provision of the harassment prevention order did not include “court appearances.” Thus, while the Commonwealth had the burden of proof, the defendant pursued a defense which assumed that the order was in effect. Given the circumstances, we cannot say that this defense was manifestly unreasonable.

Accordingly, the judge did not abuse his discretion in concluding that the evidence was sufficient and, as a result, neither trial counsel nor appellate counsel engaged in conduct that fell below that required by an ordinary fallible lawyer. See Saferian, 366 Mass. at 96.

Next, we discern no substantial risk of miscarriage of justice with regard to the admission in evidence of an unredacted copy of the harassment prevention order. The order contained the following language: “the Court determined that there is a substantial likelihood of immediate danger of harassment” and “[a]n imminent threat exists of bodily injury to the Plaintiff.” This language should have been redacted. Nonetheless, we agree with the judge's reasoning and conclude, as he did, that the admission of the unreacted harassment prevention order “did not create unfair prejudice or propensity evidence in th[is] case.” We note that the prosecutor did not refer to the challenged language in closing argument, contrast Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 108-110 (2014), and the language was not highlighted on the form itself. Moreover, as the Commonwealth notes in its brief, the fact that the defendant was acquitted of some of the charges “tends to confirm that the jurors appropriately considered the evidence as it related to each offense and did not use the [challenged language of the harassment prevention order] to impute guilt.” Commonwealth v. Iguabita, 69 Mass. App. Ct. 295, 301 (2007). Given our conclusion, it follows that raising this issue on appeal would have had minimal to no chance of success and, consequently, the ineffective assistance of appellate counsel claim on this ground is unavailing.

Lastly, we conclude the judge did not err in preventing the defendant from testifying about various statements made by the victim. The judge sustained the prosecutor's objection to the testimony because the statements were inadmissible hearsay. Even if, as the defendant now argues, the statements were admissible to show the victim's state of mind, we discern no substantial risk of miscarriage of justice. The defendant presented a robust defense which was not unfairly circumscribed by the judge's ruling. Accordingly, the motion for a new trial was properly denied on this ground as well.

Order denying motion for a new trial affirmed.

FOOTNOTES

1.   The defendant was found not guilty of additional counts of violating a harassment prevention order and intimidating a witness.

2.   The Commonwealth concedes that a copy of the order “would have undoubt[edly] made [its] case stronger.” We go a step further and take the opportunity to say that the Commonwealth's failure to introduce a properly redacted and certified copy of the harassment protection order ignores well-settled law that the standard method of proving the existence of a harassment protection order, the dates in which it is in effect, and what the terms of the order were, is to offer a certified copy of the order in evidence. See Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 722 (2019).