COMMONWEALTH v. QUADE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The juvenile appeals, after a jury trial, from convictions of three counts of strangulation, G. L. c. 265, § 15D (b), as a youthful offender, G. L. c. 119, § 54, and adjudications of delinquency for stalking, G. L. c. 265, § 43 (a), and four counts of assault and battery on a family or household member, G. L. c. 265, § 13M (a). The juvenile poses a dizzying array of challenges, most of which we reject. We do, however, conclude that the absence of an instruction on the juvenile's intent in making threats created a substantial risk of a miscarriage of justice regarding the stalking adjudication and thus vacate the adjudication on that count. We otherwise affirm.

1. Audio recording. a. Wiretap statute. The Electronic Communications Privacy Act (Federal wiretap act), 18 U.S.C. §§ 2510-2523, penalizes “any person who ․ intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a). The Federal wiretap act is a one-party consent statute. See 18 U.S.C. § 2511(2)(d) (“It shall not be unlawful ․ for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication”); Blumofe v. Pharmatrak, Inc., 329 F.3d 9, 19 (1st Cir. 2003). Here, the victim took recordings of her oral exchanges with the juvenile. Given that she was a party to both exchanges, the Federal wiretap act is inapplicable.

The juvenile also asserts that the victim's recordings were inadmissible because they violated the Massachusetts wiretap statute, G. L. c. 272, § 99. The absence of governmental action dooms this argument. “While the law bars all clandestine audio recording by private individuals, it was not intended to penalize the State when individuals with evidence ․ voluntarily disclose what they know to law enforcement authorities.” Commonwealth v. Rivera, 445 Mass. 119, 126 (2005). See Commonwealth v. Santoro, 406 Mass. 421, 423 (1990) (declining to apply exclusionary rule in the absence of governmental misconduct because “[n]o deterrent purpose would be served by suppressing the intercepted conversations”). Here, “no police or governmental conduct was involved in the recording of these ․ conversations.” Id. Accordingly, even if the victim recorded the juvenile's conversations without the juvenile's knowledge and in violation of § 99, the judge properly admitted the audio recordings. See Commonwealth v. Ramos, 470 Mass. 740, 742 (2015), quoting Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007) (“In reviewing a decision on a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear error “but conduct an independent review of [the] ultimate findings and conclusions of law” ’ ”).¹

b. Hearsay. “Hearsay is an out-of-court statement offered by a witness at trial or hearing to prove the truth of the matter asserted,” Commonwealth v. Romero, 464 Mass. 648, 651 (2013), and is “generally inadmissible unless it falls within an exception to the hearsay rule.” Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 830 (2011), quoting Commonwealth v. Rice, 441 Mass. 291, 305 (2004). “We review a judge's evidentiary rulings for an abuse of discretion.” Commonwealth v. Andre, 484 Mass. 403, 414 (2020). “Under such a standard, we ‘do not disturb a trial judge's decision absent a clear error of judgment in weighing the relevant factors.’ ” Commonwealth v. Ng, 491 Mass. 247, 257 (2023), quoting Commonwealth v. McDonagh, 480 Mass. 131, 140 (2018). Although the juvenile failed to object to the admission of the audio recordings on hearsay grounds at trial, “we nonetheless consider whether the evidence was admissible and, if not, whether its admission created a substantial risk of a miscarriage of justice.” Commonwealth v. Steed, 95 Mass. App. Ct. 463, 469 (2019).

Here, the audio recordings contain numerous statements by the juvenile and the victim. The statements of the juvenile are admissible as statements of a party opponent. See Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) (“An extrajudicial statement made by a party opponent is an exception to the rule against the introduction of hearsay, and is admissible unless subject to exclusion on other grounds”); Mass. G. Evid. § 801(d)(2) (2026). Statements by the victim were offered by the Commonwealth “to provide context for the defendant's actions in the videos and his state of mind regarding the allegations.” In any event, the victim's statements were largely cumulative of other evidence: the victim's testimony, images of the victim's injuries, and text messages from the juvenile. See Commonwealth v. Brum, 492 Mass. 581, 597 (2023). The audio recordings created no substantial risk of a miscarriage of justice.

2. Jury selection. “We review the denial of a peremptory challenge for abuse of discretion.” Commonwealth v. Kozubal, 488 Mass. 575, 581 (2021), cert denied, 142 S. Ct. 2723 (2022), quoting Commonwealth v. Obi, 475 Mass. 541, 551 (2016). “In doing so we give great deference to the findings of the trial judge, who saw, heard, and participated in the exchange with the prospective juror.” Commonwealth v. Lopez-Ortiz, 105 Mass. App. Ct. 265, 270 (2025).

During empanelment, the judge confirmed that the parties should not be exercising peremptory challenges “until the jury is seated.” The judge informed the parties that “the Commonwealth will exercise peremptories. We'll fill those -- we'll do ․ individual questions, fill those seats. The Commonwealth will again exercise peremptories until the Commonwealth's content․ Then, it'll be [defense counsel's] turn.” Once the jury was seated, defense counsel exercised three peremptory challenges, none of which included juror eighty-two. Later, defense counsel attempted to challenge that juror, but the judge noted that defense counsel had “already passed that seat.” Defense counsel explained that the juvenile reported to counsel that he saw the juror “scowling at him.” The judge did not permit the juvenile to use a peremptory, and the empanelment continued without a voir dire of the juror.

Although Mass. R. Crim. P. 20 (c) (2), 378 Mass. 889 (1979), “establishes parameters for when peremptory challenges may be used ․ judges have discretion to further designate when parties may exercise their peremptory challenges.”² Commonwealth v. Hinds, 487 Mass. 212, 232 (2021), S.C., 494 Mass. 681 (2024). Here, the judge adequately conveyed that the defense would be given one chance to exercise a peremptory challenge on each juror. See id. at 233 (judge's instructions that “starting with the Commonwealth, I'll hear you on your challenges, either for cause, first, if any, and then [peremptory]; and then turn to the [d]efendant,” were adequate in articulating timing requirement). See also Commonwealth v. McCoy, 456 Mass. 838, 843 n.2 (2010) (“because [the defendant] had had a previous opportunity to strike that juror, and had not done so, and subsequently additional jurors had been seated,” he was “prevented ․ from going back and later striking that juror”).

We further reject the juvenile's argument that the seating of the juror denied him an impartial jury. First, defense counsel never challenged the juror for cause. See McCoy, 456 Mass. at 842 (“Where a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived”). Second, the judge found the juror impartial, and a second-hand report that the juvenile saw what he interpreted as scowling is inadequate to require a judge to find that juror biased or to hold a voir dire sua sponte. See Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 271-272 (2002) (“A trial judge has broad discretion in determining the partiality of a prospective juror”). See also Commonwealth v. Clark, 446 Mass. 620, 629-630 (2006) (“A trial judge is accorded considerable discretion in the jury selection process and his finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest”).

3. Evidentiary issues. a. Abuse prevention order. The juvenile challenges the testimony of both the victim and his mother regarding the abuse prevention order obtained by the victim against the juvenile. The juvenile did not object to the victim's testimony, so we review “to determine whether there was error, and, if so, whether the error created a substantial risk of a miscarriage of justice.”³ Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 804 (2024), quoting Commonwealth v. Diaz, 100 Mass. App. Ct. 588, 596 (2022). The juvenile objected to his mother's testimony on cross examination, so “we review for prejudicial error and consider whether there is a reasonable possibility that the error might have contributed to the jury's verdict.” Commonwealth v. Uriah U., 100 Mass. App. Ct. 281, 285 (2021), quoting Commonwealth v. Carriere, 470 Mass. 1, 7 (2014).

Prior to trial, on the juvenile's motion in limine, the trial judge excluded evidence of the issuance of the abuse prevention order. At trial, when asked why she waited to report the incidents, the victim responded that she “didn't want to get the police involved. But I had placed a Restraining Order the week before, and he fought me on it. So that day in court, ․ I couldn't take it. I needed a Restraining Order, so I showed the judge my bruises.” The prosecutor asked no questions of the victim about the order or the hearing, and the victim said nothing else about it. Although “[t]he judicial imprimatur on [an abuse prevention] order lends it significant weight,” Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 515 (2001), the order here was never admitted, the victim's reference to an order was brief, and the jury was never told that the requested order was issued. See Commonwealth v. Regan, 104 Mass. App. Ct. 623, 631 (2024), cert. denied, 145 S. Ct. 1317 (2025).

During cross examination, the juvenile's mother unresponsively stated, “When I came to court, [the victim] say, ‘I got the notification that the AirTag was in my car.’ ” When the prosecutor inquired further, defense counsel objected. At sidebar, the prosecutor argued that the mother “just mischaracterized what [the victim] said. So I think I have the right now to impeach her with whatever she said.” The prosecutor reiterated that she would stay away from whether the order was issued. Then, the prosecutor asked the mother, “Are you saying that [the victim] said at this hearing that she had access to [the juvenile's] AirTag location?” The mother responded, “Yes.” The prosecutor showed the mother a transcript and asked, “So [the victim] was saying at that hearing that if she was the owner of the AirTag, she wouldn't have received a notification that it was traveling with her. Correct?” The mother responded, “I guess.” We see no error in permitting this line of questioning. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 52 (2009) (“the decision to admit impeachment evidence rests in the broad discretion of the judge and will not be disturbed on appeal unless the exercise of that discretion constituted an abuse of discretion or palpable error of law”).

No one -- not the victim, not the juvenile's mother, and not the prosecutor -- ever said that the order issued, and the prosecutor did not reference the order in her closing. Contrast Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 110 (2014) (“the prosecutor focused the jury's attention on the substantial likelihood of abuse evidence and exploited it in her closing”). The jury were merely informed that a restraining order hearing had occurred. Amidst the ample evidence of the juvenile's guilt (and the jury's decision to acquit on multiple charges), the victim's fleeting mention of the order and the mother's recollection of the hearing did not amount to reversible error.

b. Other issues. The juvenile raises several other issues to which he failed to object at trial. We review each in turn for a substantial risk of a miscarriage of justice. See Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 571 (2007).

First, the juvenile argues that the victim's “self-diagnosis of mental health issues, ․ were irrelevant, highly prejudicial, and should have been stricken.” When asked by the prosecutor if she was “still afraid to this day of [the juvenile],” the victim testified, “I'm scared every day. I'm scared to be in a room with men. I'm scared to go out. I have anxiety and paranoia every day. I feel like anyone's just going to come out of the bushes and beat me just like he did. It's extremely difficult to live with this.”

This testimony was relevant. To prove stalking, the Commonwealth had to show that the juvenile “engage[d] in a knowing pattern of conduct ․ directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress.” G. L. c. 265, § 43 (a). See Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 251 (2021). The testimony was proper to show that “the totality of the situation evoked the type of ‘serious negative emotional experience’ required under the statute.” Commonwealth v. Johnson, 470 Mass. 300, 314 (2014), quoting Commonwealth v. Kessler, 442 Mass. 770, 774 (2004). See Commonwealth v. Bigelow, 475 Mass. 554, 558 (2016) (victim “testified that she ‘was hysterical,’ and that she ‘couldn't stop crying, couldn't sleep,’ was ‘afraid to live in’ her own home, and ‘afraid to be alone’ ”); Commonwealth v. Walters, 472 Mass. 680, 700 (2015), S.C., 479 Mass. 277 (2018) (victim testified that defendant's conduct “was part of the ‘most horrible time in [her] life’ and was ‘very, very stressful’ ”); Commonwealth v. Robinson, 444 Mass. 102, 105 (2005) (“the victim felt vulnerable; his son's school grades dropped because he was nervous; the family sensed they were constantly under surveillance”); Lehan, supra at 254 (“The victim testified that ․ [she] was in fact ‘afraid’ and ‘scared’ following the discovery of the vandalism”). We discern no error.

Second, the juvenile argues that a police officer's testimony regarding the victim's demeanor was “gratuitous and improper.” The police officer, who took the victim's walk-in report, testified, “During the course of the entire interview -- because there was a lot there -- she was very strong -- emotionally and mentally strong. We went through it. But she was well-spoken, put together, mature.” This testimony was properly permitted as evidence of the victim's demeanor. See Commonwealth v. Elangwe, 85 Mass. App. Ct. 189, 199-200 (2014). See also Commonwealth v. Arana, 453 Mass. 214, 225 (2009) (“Evidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case”); Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 801 (2011) (“Demeanor evidence may be of particular importance in a case such as this, where the trial devolves to a contest of credibility concerning whether the charged offense ․ occurred”). We discern no error.

Next, the juvenile contends and the Commonwealth concedes that the victim's testimony that she went to her friend's house after an incident with the juvenile and “told them what was going on” was improper. See Commonwealth v. Conley, 103 Mass. App. Ct. 496, 513 (2023). Although inadmissible hearsay, the testimony was fleeting, virtually devoid of content, and insignificant in the context of the entirety of the victim's testimony. See Place, 81 Mass. App. Ct. at 233. We harbor no “serious doubt” that the result of the trial might have been different had this error had not been made. Commonwealth v. Cash, 64 Mass. App. Ct. 812, 815 (2005), quoting Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

Finally, the juvenile contends that the conclusion of the Commonwealth's closing argument “improperly bolstered complainant's credibility with inflammatory argument.” The prosecutor stated, “[The victim] told you that she is afraid to go places and be -- places alone with men. She told you that when she walks on the street, she's afraid that someone's going to jump out of the bushes and attack her.” This argument was merely an accurate paraphrase of the victim's testimony, see Commonwealth v. Delacruz, 443 Mass. 692, 695 (2005), and “[v]iewing the ‘remarks ․ in light of the entire argument,’ we conclude that the prosecutor's statement was not improper.” Commonwealth v. Holguin, 101 Mass. App. Ct. 337, 342 (2022), quoting Commonwealth v. Nee, 83 Mass. App. Ct. 441, 448 (2013).

The prosecutor also argued, “it's time now for [the juvenile] to finally face the consequences of his actions.” We assume, without deciding, that this was improper. See Commonwealth v. Martinez, 476 Mass. 186, 197 (2017). Nonetheless, this sentence, embedded within a lengthy closing, did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016), quoting Commonwealth v. Whitman, 453 Mass. 331, 343 (2009) (“Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury”).

4. Jury instructions. a. Youthful offender. In this case, to establish that the juvenile was a youthful offender, the Commonwealth had to prove that “the offense [charged] involves the inflection or threat of serious bodily harm in violation of law.” G. L. c. 119, § 54. See N.M. v. Commonwealth, 478 Mass. 89, 94 (2017). The judge instructed the jury that, to qualify as “serious bodily harm” under § 54, “the harm must be serious enough to interfere with the victim's health or comfort. The harm need not be permanent, but it must be more than trifling.” “As the defendant failed to lodge any objections to the jury instructions at trial, the substantial risk of a miscarriage of justice standard of review applies.” Commonwealth v. Sanchez, 70 Mass. App. Ct. 699, 700-701 (2007).

“Where the Legislature does not define a term, we presume that its intent is to incorporate the common-law definition of that term, ‘unless the intent to alter it is clearly expressed.’ ” Commonwealth v. Wynton W., 459 Mass. 745, 747 (2011), quoting Commonwealth v. Stokes, 440 Mass. 741, 747 (2004), S.C., 460 Mass. 311 (2011). We have already determined that the Legislature intended the words “serious bodily harm” in § 54 to be interpreted according to their ordinary, common-law meaning. Commonwealth v. J.G., 100 Mass. App. Ct. 731, 737-738 (2022). Under that definition, we have found bruising and scraps to constitute serious bodily harm. See id. at 737, citing Commonwealth v. Sumner, 18 Mass. App. Ct. 349, 352 (1984). We have found abrasions on the head and lower abdominal pain to qualify. J.G., supra, citing Commonwealth v. Pontes, 402 Mass. 311, 319 n.7 (1988). We have recognized a “swollen eye, swollen face, and facial bruises” as serious bodily harm. J.G., supra, quoting Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 235 (1991).

Here, the judge's instruction correctly conveyed the meaning of “serious bodily harm” as set forth in our case law. See J.G., 100 Mass. App. Ct. at 737-38. Accord Commonwealth v. Cruz, 445 Mass. 589, 597 (2005), quoting Commonwealth v. Daye, 411 Mass. 719, 739 (1992) (“The judge is not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue”). Discerning no error, we find no substantial risk of a miscarriage of justice.

b. Stalking. To prove stalking, G. L. c. 265, § 43 (a), the Commonwealth had to show that the defendant “(1) willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) [made] a threat with the intent to place the person in imminent fear of death or bodily injury.” Walters, 472 Mass. at 689, quoting G. L. c. 265, § 43 (a). Applying Counterman v. Colorado, 600 U.S. 66, 69, 82 (2023), the Supreme Judicial Court has held that a criminal threats crime requires “that the Commonwealth prove ‘that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence and delivered it anyway.’ ” Commonwealth v. Ushon U., 497 Mass. 464, 467 (2026), quoting Commonwealth v. Cruz, 495 Mass. 110, 115 (2024).

Here, the judge instructed the jury, “If an act is based on speech, the Commonwealth must prove beyond a reasonable doubt that the speech was a true threat, or what we call ‘fighting words,’ and therefore not protected by the First Amendment. A ‘true threat’ is one that either threatens imminent physical harm to the alleged victim or caused and was intended to cause the alleged victim to fear physical harm at the time or in the future.” This instruction was incomplete, as “the jury were not instructed that they were required to find that the defendant acted with the mens rea necessary to convict him.” Cruz, 459 Mass. at 113.

Because the juvenile did not object, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Bolling, 462 Mass. 440, 452 (2012). We apply a special version of that test because “the error was the omission from the charge of an element of the Commonwealth's required proof.” Ushon U., 497 Mass. at 468. Specifically, “we determine ‘whether the presence of the omitted element was an ineluctable inference from the evidence at trial,’ ” and reverse if it was not. Id., quoting Commonwealth v. Desiderio, 491 Mass. 809, 810 (2023).

Here, the juvenile's statements were quite disturbing, but the juvenile testified that “we verbally talked to each other a lot in very sarcastic ways․ [W]e would insult each other in a joking way, for the other's expense, to laugh.” He described one of the statements in question as “very sarcastic,” and stated that he “wasn't serious.” Although the jury was entitled to disbelieve the juvenile, Commonwealth v. Quinones, 78 Mass. App. Ct. 215, 220 n.2 (2010), the Commonwealth presented no compelling evidence that would have precluded the jury from believing the juvenile. Accordingly, the juvenile's intent regarding the threat cannot be ineluctably inferred from the trial evidence, and thus there is a substantial risk of miscarriage of justice under the Desiderio test. See Ushon U., 497 Mass. at 468.

5. Conclusion. The juvenile's convictions as a youthful offender and the adjudications of delinquency for assault and battery on a family or household member are affirmed. The juvenile's adjudication of delinquency for stalking is vacated and set aside. The case is remanded to the Juvenile Court for proceedings consistent with this decision.

So ordered.

FOOTNOTES

1.   The juvenile asserts that “the trial prosecutor made plain that if the Court found that [the victim] had secretly recorded the Juvenile in violation of the wiretapping statute(s), then she would not seek to admit the videos.” This is not so. In fact, the prosecutor argued, “if your Honor found that it was a violation, ․ it should still be admissible,” and merely stated, “If your Honor doesn't agree with me on that and finds that ․ it's inadmissible, then there would be no questions asked of her about the video because it wouldn't be admissible.” Although the prosecutor's argument about the victim's rights against self-incrimination may have been infirm, the juvenile has no standing to raise a possible violation of the victim's rights against self-incrimination. See Commonwealth v. Vacher, 469 Mass. 425, 438 (2014).

2.   Rule 20 (c) (2) requires that “[p]eremptory challenges shall be made before the jurors are sworn and may be made after the determination that a person called to serve as a juror stands indifferent in the case.”

3.   The juvenile also did not request a curative instruction. See Commonwealth v. Barboza, 76 Mass. App. Ct. 241, 244 (2010), quoting Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992) (“the law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant”).