Commonwealth v. McGann

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12742
COMMONWEALTH vs. SKYE A. McGANN.
Franklin. November 7, 2019. - March 17, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Assault and Battery. Assault and Battery by Means of a
Dangerous Weapon. Constitutional Law, Confrontation of
witnesses, Fair trial. Evidence, Hearsay, Spontaneous
utterance, Medical record, Cross-examination. Practice,
Criminal, Hearsay, Confrontation of witnesses, Fair trial,
Restitution. Fair Trial. Due Process of Law, Fair trial.
Self-Defense. Restitution.
Complaint received and sworn to in the Orange Division of
the District Court Department on January 17, 2017.
A pretrial motion to redact medical records was heard by
Paul H. Smyth, J., and the case was tried before David S. Ross,
J.
The Supreme Judicial Court granted an application for
direct appellate review.
Cara M. Cheyette for the defendant.
Nicholas Shareef Atallah, Assistant District Attorney
(Thomas H. Townsend, Assistant District Attorney, also present)
for the Commonwealth.
2
CYPHER, J. This is an appeal by the defendant, Skye A.
McGann, from her convictions of assault and battery on a family
or household member and assault by means of a dangerous weapon.
We granted her application for direct appellate review. Before
trial, the victim, the defendant's then boyfriend, invoked his
privilege against self-incrimination under the Fifth Amendment
to the United States Constitution and therefore did not testify
at trial. The defendant argues on appeal that, for various
reasons, her right to a fair trial was violated and that the
judge improperly ordered the defendant to pay restitution to the
victim's mother, who was a third party and nonvictim. To
determine whether the defendant received a fair trial, we
address whether (1) the trial judge properly admitted the
victim's statements he made over the telephone to his mother;
(2) a judge who heard the defendant's pretrial motion to redact
the victim's medical record (motion judge) properly admitted a
statement contained in that record; (3) a line of questioning by
the Commonwealth during cross-examination of the defendant was
improper and, if so, whether it created a substantial risk of a
miscarriage of justice; and (4) the evidence presented by the
Commonwealth was sufficient to allow a reasonable jury to
conclude that the defendant did not act in self-defense. We
hold that the defendant received a fair trial and that a trial
judge may order a defendant to pay restitution to a third party
3
in certain circumstances. We therefore affirm the defendant's
convictions and the judge's restitution order.
Background. We recite the facts as the jury could have
found them, reserving certain details for later discussion.
1. The incident. The defendant and the victim lived
together in an apartment (apartment). At some time during the
night of January 15, 2017, the defendant and the victim got into
an argument.1 Around 11 P.M., the victim called his mother
(first telephone call). The victim's mother testified2 that the
victim told her, "[The defendant] just punched me in both of my
eyes. I can barely see." The victim's mother described the
victim's tone of voice as "screaming and crying." She testified
that when she told the victim to call the police, he responded,
"I'm gonna call the cops."3 The victim's mother called the
police several times after speaking with her son.
At some point after the first telephone call, the defendant
left the apartment and drove to her father's house. The
1 A neighbor testified at trial that she heard "banging,"
"slamming," and "yelling" around 11 P.M., coming from the
apartment.
2 As will be discussed in more detail infra, the judge
accepted the victim's assertion of his privilege under the Fifth
Amendment to the United States Constitution and he therefore did
not testify at trial.
3 There is no evidence in the record to suggest that the
victim called the police at any point during the incident at
issue.
4
victim's mother testified that after the first telephone call,
she called the defendant to address the victim's accusations.
The victim's mother testified that when she told the defendant,
"[The victim] told me you beat him up pretty bad and you stole
his car," the defendant responded, "You should see what he did
to me." The defendant spent about an hour at her father's house
and then returned to the apartment. After the defendant
returned to the apartment, the police arrived at the apartment,
spoke to the victim, and left thereafter.
At 1:30 A.M. on January 16, the victim again called his
mother (second telephone call). The victim's mother testified
that during this telephone call, the victim was "screaming,"
"[h]e was crying," and his tone of voice was "hysterical." She
testified that the victim said to her, "She tried to kill me.
She pulled out a knife." A neighbor living in the apartment
next to the victim and defendant testified that around 1:30 A.M.
she heard4 the defendant state, "I'm going to kill you, and I
want you dead," from the apartment. Another neighbor testified
that during the night she heard the defendant state, "I'm gonna
F'ing kill you," from the apartment.
4 The neighbor testified that she could hear things from the
apartment occupied by the victim and the defendant "very
clear[ly]" and that she is able to recognize the defendant's
voice.
5
As the victim concluded the second telephone call with his
mother, the police arrived. When Officer Corey Brown and
Sergeant Randall Stange of the Athol police department arrived
at the scene, they observed blood on the back of the victim's
head. Brown testified that he noticed blood around the victim's
mouth and nose and bite marks on the victim's arm and shoulder,
and that the victim's demeanor was "excited," his voice was
"loud," and he was "very boisterous with his hands." Both
officers testified that they did not observe injuries or marks
on the defendant. The victim was transported to the hospital by
ambulance.
As detailed infra, the defendant testified at trial,
raising the issue of self-defense.
2. Evidentiary holdings. As relevant to the defendant's
appeal, the judge accepted the victim's assertion of Fifth
Amendment privilege, allowed the Commonwealth's motion to admit
statements the victim made to his mother on the telephone as
nontestimonial spontaneous utterances, and denied the
defendant's motion to redact certain statements in the victim's
medical records.
3. The restitution order. After the verdicts, the
prosecutor requested, inter alia, that the defendant pay
6
restitution. At a later restitution hearing, the judge ordered
the defendant to pay restitution to the victim's mother.5
The defendant appealed from her convictions and from the
restitution order, and we granted her application for direct
appellate review.
Discussion. 1. Admissibility of the victim's statements
to his mother.6 We first address whether the trial judge
properly admitted the statements the victim made over the
telephone to his mother. The defendant argues that the victim's
statements were testimonial because he knew or should have known
that his statements were translating into police action. She
further argues that the judge should not have admitted the
victim's statements to his mother as spontaneous utterances
because the statements failed to bear sufficient indicia of
reliability. She encourages this court to "take this
opportunity to revisit [Commonwealth v. King, 436 Mass. 252
(2002),] and to empower and, indeed, require, that judges act as
'engaged gatekeepers' to ensure that the presumptive reliability
of spontaneous utterances offered without benefit of
confrontation is not rebutted by other credible, reliable
5 The defendant satisfied the payment of restitution.
6 In her brief, the defendant challenged the victim's
invocation of his Fifth Amendment privilege, but at oral
argument, she stated that she was no longer asserting this as an
independent argument.
7
evidence."7 The Commonwealth contends that the victim's
statements to his mother were not testimonial because they were
all made to resolve ongoing medical emergencies, and that "the
limitations required by Commonwealth v. King did not violate the
defendant's due process rights, as the court still evaluated the
statements themselves for reliability." For the reasons that
follow, we hold that the judge properly admitted the statements
the victim made to his mother as excited utterances.
a. Confrontation clause. The first issue is whether the
confrontation clause barred the victim's out-of-court statements
to his mother from being admitted. In a criminal case, to be
admissible as a spontaneous utterance, the out-of-court
statement made by a declarant who does not testify at trial must
satisfy the confrontation clause and must be admissible pursuant
to the rules of evidence.8 See Commonwealth v. Beatrice, 460
7 The defendant does not argue that the excited utterance
exception be abandoned, "just that its application comport with
due process."
8 "A statement qualifies as a spontaneous utterance if
'there is an occurrence or event "sufficiently startling to
render inoperative the normal reflective thought processes of
the observer"' and 'the declarant's statement was "a spontaneous
reaction to the occurrence or event and not the [result] of
reflective thought."'" Commonwealth v. Simon, 456 Mass. 280,
296, cert. denied, 562 U.S. 874 (2010), quoting Commonwealth v.
Santiago, 437 Mass. 620, 623 (2002). See Mass. G. Evid.
§ 803(2) (2020). The parties do not dispute that the victim's
statements meet this test, and given the testimony of the
victim's mother and Brown regarding the victim's demeanor,
discussed infra, we agree.
8
Mass. 255, 258 (2011). The confrontation clause bars the
admission of testimonial hearsay by a declarant who does not
appear at trial, unless the declarant is unavailable to testify
as a matter of law and the defendant had an earlier opportunity
to cross-examine him or her. See id., citing Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). "Testimonial statements
are those made with the primary purpose of 'creating an out-of-
court substitute for trial testimony'" (citation omitted).9
Commonwealth v. Wardsworth, 482 Mass. 454, 464 (2019). "[T]he
question is whether, in light of all the circumstances, viewed
objectively, the 'primary purpose' of the conversation was to
'creat[e] an out-of-court substitute for trial testimony.'"
Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015), quoting Michigan v.
Bryant, 562 U.S. 344, 358 (2011). "[W]hen the Commonwealth in a
criminal case seeks to admit the excited utterance of a
declarant who is not a witness at trial . . . , the judge should
conduct a careful voir dire, evidentiary if needed, before
admitting the excited utterance in evidence." Commonwealth v.
Hurley, 455 Mass. 53, 68 n.14 (2009). "We accept the judge's
findings of fact unless clearly erroneous but independently
apply constitutional principles to the facts found."
9 In Commonwealth v. Wardsworth, 482 Mass. 454, 464 n.18
(2019), we clarified that the "appropriate method of analysis is
the 'primary purpose' test."
9
Commonwealth v. Simon, 456 Mass. 280, 296, cert. denied, 562
U.S. 874 (2010).
The judge conducted a voir dire, before the trial, during
which the victim's mother and a police officer who responded to
the scene testified. See Hurley, 455 Mass. at 68 n.14. The
victim's mother testified during the voir dire that at
approximately 11 P.M. on January 15, the victim called her and
said that the defendant punched him in both his eyes, that he
could "barely see," and that the defendant stole his car. The
victim's mother further testified that during this telephone
call, the victim was "very, very, very upset," and that he was
"crying," "screaming," and "hysterical." She said she told him
to call the police and that he responded, "I will." There is no
evidence to suggest that the victim called the police, and the
defendant does not argue that he did so.
The victim called his mother a second time, again conveying
the defendant's actions to his mother. The victim's mother
testified during voir dire that the victim called her around
1:30 A.M. on January 16 and told her, "[The defendant] pulled
out a knife. She's tried to kill me." She testified that
during this second telephone call, the victim was "screaming,"
and his tone of voice was "hysterical" and "much worse" than the
tone of his voice on the first telephone call. The judge ruled
that the statements were nontestimonial, explaining that they
10
"were not made for the purpose of aiding an investigation of
prosecution of a crime. That might have been so had he called
the police, but he was calling his mother; it sounds as if in
despair."
The record before us demonstrates that a reasonable person
in the victim's position would not have anticipated that his
statements to his mother in the first telephone call would be
used against the defendant in a prosecution. See Commonwealth
v. Smith, 460 Mass. 385, 394 (2011); Beatrice, 460 Mass. at 258-
259. Although his mother urged him to call the police, there is
no evidence that he did so, nor is there evidence that the
victim's mother informed the victim that she was going to
contact the police, or that she was attempting to gather
information from the victim in order to communicate that
information to the police. See Smith, supra; Beatrice, supra.
The statements the victim made to his mother during the
second telephone call present us with an additional layer of
information: that after his first call to his mother and before
his second call to his mother, the police responded to the
apartment and spoke with the victim. The defendant argues that
the victim knew or should have known that his second telephone
call to his mother would result in the police again responding
to his apartment, and that it is immaterial that the police
arrived on scene during the second telephone call in response to
11
a 911 call from a neighbor.10 However, as mentioned supra, there
is no evidence in the record to suggest that, during the first
call, the victim's mother told the victim that she was planning
to contact the police. The record reflects that on the second
telephone call, the victim was "screaming" and "hysterical," and
that when the police arrived as he finished the second telephone
call, a police officer11 observed the victim to be "covered in
blood," and "pretty frantic." Therefore, the victim's state of
being, combined with the record being void of an indication that
he was aware his mother was doing anything other than just
listening to his concerns regarding the defendant, leads us to
hold that the statements in the second telephone call also were
not testimonial. See Beatrice, 460 Mass. at 258-259. As such,
the victim's statements to his mother were nontestimonial and
the admission of the statements did not violate the
confrontation clause. See id. at 258.
10The victim's mother testified during voir dire that she
called the police multiple times between the first and second
telephone calls with her son, to report that she had concerns
about her son.
11Brown testified during the voir dire that when he arrived
on scene at around 1:45 A.M. on January 16, the victim got out
of the vehicle he was sitting in, was "covered in blood," and
had blood coming from his nose and mouth area; that the blood
was wet; and that the victim had bite marks on his arms and one
bite mark on his shoulder. Brown also testified that the victim
"was pretty frantic," his tone of voice was "excited," and the
volume of his voice "was pretty loud."
12
b. Due process. The second issue regarding the
admissibility of the victim's statements to his mother is
whether, as the defendant argues, her due process right to a
fair trial was violated because the judge did not consider all
the evidence in determining the admissibility of the victim's
out-of-court statements to his mother. While a judge has "broad
discretion" to determine whether a statement meets the
foundational criteria of the spontaneous utterance exception,
Simon, 456 Mass. at 296, we held in King that the judge does not
have discretion to exclude a spontaneous utterance that meets
the foundational criteria "on the ground that, in light of other
evidence, the statement no longer appears reliable." King, 436
Mass. at 256-257 (if judge had independent discretion to
determine reliability of evidence in light of other evidence,
this would "effectively require the judge to hear the entirety
of the other proposed trial evidence and would have the judge
usurp the fact finder's function"). Underlying our holding in
King was the principle that spontaneous utterances are, by their
very nature, considered reliable and that the reliability of a
spontaneous utterance goes to its weight, not its admissibility.
Id. Although decided before Crawford, 541 U.S. 36, King does
not conflict with Crawford's holding, or with our Commonwealth's
subsequent case law. As such, we decline the defendant's
invitation to revisit King. As the admission of the victim's
13
statements as spontaneous utterances complied with evidentiary
standards, the admission of the victim's out-of-court statements
did not violate the defendant's due process right to a fair
trial.
2. Admissibility of the statement contained in the
victim's medical record. The next issue is whether the motion
judge properly admitted the following statement contained in the
victim's medical record: "repeatedly beat him about the
head/face and bit him several times in arms and also came after
him with steak knife."12 The defendant contends that the
statement in the victim's medical record in which he "describ[es
the] defendant as the assailant on a charge involving only a
threat of injury was inadmissible, testimonial hearsay."13 The
Commonwealth argues that the judge properly admitted the
statement as a statement related to the victim's medical history
because it related to possible causes of the injuries for which
he was receiving treatment. We hold that the motion judge
properly admitted the statement contained in the victim's
medical record.
12Information that may have named the defendant as the
subject of this statement was redacted in the medical record.
13Before trial, the Commonwealth stated that the charge of
assault and battery was never filed.
14
Certified medical records "may be admitted by the court, in
its discretion, as evidence in the courts of the commonwealth so
far as such records relate to the treatment and medical history
of such cases . . . but nothing therein contained shall be
admissible as evidence which has reference to the question of
liability." G. L. c. 233, § 79. See Mass. G. Evid. § 803(6)(B)
(2020). "The statute has long been construed to permit the
admission of a record that relates directly and primarily to the
treatment and medical history of the patient, 'even though
incidentally the facts recorded may have some bearing on the
question of liability.'" Commonwealth v. Torres, 479 Mass. 641,
653 (2018), quoting Commonwealth v. Dube, 413 Mass. 570, 573
(1992). See Commonwealth v. Dargon, 457 Mass. 387, 395 (2010),
quoting Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998) ("We
distinguish, however, 'a conclusory fact central to the jury's
inquiry from physical observations from which inculpatory
inferences flow'" [quotations omitted]).
Here, the motion judge ruled that the statement was
admissible, nontestimonial hearsay. The victim's mother read
the statement during her testimony at trial, and the prosecutor
read the statement during closing argument.
The first part of the statement, "repeatedly beat him about
the head/face and bit him several times in arms," falls within
the medical record exception because it relates to a potential
15
cause of the victim's "multiple bite marks," "bloodied
appearance," and contusion. See G. L. c. 233, § 79; Torres, 479
Mass. at 653, quoting Dube, 413 Mass. at 573. The second part
of the statement, "came after him with steak knife," although a
closer call than the first part of the statement, was also
admissible. Given that the victim's injuries included
lacerations on his back, face, and finger, the second part of
the statement in the medical record was a "fact-specific
reference[] to the reported cause of [his] injuries [and was]
part of [his] medical history and [was] relevant to treatment."
DiMonte, 427 Mass. at 242. Therefore, the motion judge properly
admitted the statement contained in the victim's medical
record.14
3. Prosecutor's cross-examination of the defendant. We
next examine whether a line of questioning by the prosecutor
during cross-examination of the defendant was improper and, if
so, whether it created a substantial risk of a miscarriage of
justice. The defendant argues that the prosecutor "asked a long
series of 'improperly loaded question[s]'" on cross-examination
of the defendant, and that the prosecutor did not have a good
faith basis for the questions. The Commonwealth agrees that the
14Because statements properly admitted under the medical
record exception are nontestimonial, we reject the defendant's
confrontation clause argument. See Commonwealth v. Irene, 462
Mass. 600, 618, cert. denied, 568 U.S. 968 (2012).
16
questions were improper, but argues that no substantial risk of
a miscarriage of justice occurred because the prosecutor did not
refer to the line of inquiry during closing argument and there
was substantial evidence to support the Commonwealth's case. We
conclude that the majority of the subject line of questioning
was improper but that it did not create a substantial risk of a
miscarriage of justice.
"A cross-examiner may ask a question that implies the truth
of a proposition if she has a basis in fact for asking the
question and is prepared to disclose that reason to the judge."
Commonwealth v. Christian, 430 Mass. 552, 561 (2000), overruled
on another ground by Commonwealth v. Paulding, 438 Mass. 1
(2002). "There must be a reasonable and good-faith basis for
questions asked on cross-examination." Mass. G. Evid.
§ 611(b)(1) (2020). Even when a prosecutor has a good faith
basis for asking questions on cross-examination, the questioning
should be curtailed in the face of a witness's consistent
denials. Christian, supra at 562.
In Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39 (2014),
the Appeals Court stated that "the requirement noted in
[Commonwealth v. White, 367 Mass. 280, 285 (1975)] (that the
examiner must have a good faith basis and proper foundation for
cross-examination) is simply another way of saying that the
examiner must have a reasonable belief that the facts implied by
17
the questions could be established by admissible evidence." The
court in Peck went on to hold that although the prosecutor
communicated to the judge that he had a report in which the
defendant's boyfriend told the police and the insurance fraud
bureau that the defendant had confessed to her involvement in
insurance fraud, the prosecutor's cross-examination questions to
the defendant about that conversation were improper. See Peck,
supra at 37-40. The court held that the questioning was
improper because the boyfriend was not present to testify and
therefore "the prosecutor's questions had the effect of
informing the jury of the contents of out-of-court statements
allegedly made by the defendant that were not admissible"
because (1) the boyfriend could have testified but did not and
(2) on cross-examination the defendant denied making the
statements. See id. at 39-40. The ruling in Peck, however,
goes too far in limiting a prosecutor's cross-examination, as
the cross-examiner need not be ready to offer admissible
evidence in support of a question. See Mass. G. Evid.
§ 611(b)(1) & note, citing White, 367 Mass. at 284.
The defendant in the present case did not object to the
questioning, and we therefore review for a substantial risk of a
miscarriage of justice. See Commonwealth v. Carroll, 439 Mass.
547, 554 (2003). This standard requires us to determine "if we
have a serious doubt whether the result of the trial might have
18
been different had the error not been made." Commonwealth v.
Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005),
quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In
making this determination, "[w]e consider the strength of the
Commonwealth's case, the nature of the error, the significance
of the error in the context of the trial, and the possibility
that the absence of an objection was the result of a reasonable
tactical decision." Azar, supra.
During cross-examination of the defendant, the prosecutor
asked the defendant a series of questions15 relating to her
15 The line of questioning at issue was as follows:
Q.: "And that wound was actually caused by the tip of the
knife that you grabbed, correct?"
A.: "No."
. . .
Q.: "Before you left -- you in fact had kicked [the
victim] and hit him in the face before you took his car and
left, correct?"
A.: "No."
Q.: "And then, when you returned and you -- the argument
resumed, you yanked [the victim] out of bed, and you threw
him up against that mirror, correct?"
A.: "No. I never even --"
Q.: "And in fact --"
A.: "-- touched him."
19
grabbing the knife, kicking the victim, throwing him into a
mirror, and breaking down a door; the defendant denied doing any
of the actions about which the prosecutor questioned her.
Although the Commonwealth agrees with the defendant that this
questioning was improper, we must still decide the issue. See
Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010), quoting
Sibron v. New York, 392 U.S. 40, 58 (1968) ("Confessions of
error are, of course, entitled to and given great weight, but
they do not 'relieve this Court of the performance of the
judicial function'"); Commonwealth v. McClary, 33 Mass. App. Ct.
678, 686 n.6 (1992), cert. denied, 510 U.S. 975 (1993).
Q.: " -- he then ran into the bathroom with your phone
after you threw him into the mirror, correct?"
A.: "No."
Q.: "And then --"
A.: "Are you trying to throw me off?"
Q.: "And then you broke down the door while he was in
there with your phone, correct?"
A.: "Wait, what?"
Q.: "You broke down the door while he was in there with
your phone, correct?"
A.: "No, I can't even break down a door."
Q.: "And then, when you grabbed the knife, he put his
right arm up, didn't he?"
A.: "No."
20
The Commonwealth stated in its brief that the questions
were based on the prosecutor's notes from a conversation he had
with the victim and the victim's mother, which were provided to
defense counsel before trial. However, because the victim did
not testify at trial, the victim's statements to the prosecutor
during that conversation were not going to be admitted as
evidence during the trial. Because the prosecutor based his
questions during this line of cross-examination on his
conversation with the victim, he did have a good faith basis to
ask the questions, even though he was not going to offer
substantive evidence of the statements. See White, 367 Mass. at
284. However, although the prosecutor had a good faith basis
for asking the defendant the questions, he should have ceased
the line of questioning in the face of the defendant's
consistent denials. See Christian, 430 Mass. at 562.
The improper line of questioning did not create a
substantial risk of a miscarriage of justice because it was
brief, the line of questioning did not receive substantial
attention at trial, the prosecutor did not mention his questions
or the defendant's answers in his closing argument, and the
defendant answered each question with a denial. See Azar, 435
Mass. at 687. Furthermore, although the defendant did not
object to the questioning and the judge did not provide a
contemporaneous curative instruction, the judge gave a general
21
curative instruction before the trial, explaining that "what a
lawyer says is not evidence unless a witness agrees to it," and
in his final instruction he explained that "[a] question by
itself is not evidence, the evidence is the witness['s] answer
taken in context." See Commonwealth v. Imbert, 479 Mass. 575,
587 (2018) (juries expected to follow judge's instructions).
For the foregoing reasons, although the line of questions was
improper, it did not create a substantial risk of a miscarriage
of justice.16 See Carroll, 439 Mass. at 554.
4. Defendant's self-defense claim. The next issue is
whether the evidence presented by the Commonwealth was
sufficient to allow a reasonable jury to conclude that the
16In addition, the prosecutor's statements during his
closing argument were not improper. The prosecutor stated,
"[Y]ou have to decide on the credibility of the witnesses you
heard today. And I argue to you, if there's one thing you know
from this trial, you know whatever happened in that house didn't
go down the way [the defendant] said it did. Because her story
is full of holes, it's full of unbelievable things. It doesn't
make any sense." The defendant argues that the prosecutor
"improperly invited the jury to resort to speculation." While
"[a] prosecutor may not misstate evidence or refer to facts not
in evidence in a closing argument," Commonwealth v. Goddard, 476
Mass. 443, 449 (2017), he or she "may properly attack the
credibility of witnesses," Commonwealth v. Donovan, 422 Mass.
349, 357 (1996). Viewed in the context in which the prosecutor
made his remarks, Commonwealth v. Valentin, 474 Mass. 301, 309
(2016), he properly attacked the credibility of a witness, here
the defendant, see Commonwealth v. Copeland, 481 Mass. 255, 264
(2019) (not improper for prosecutor to state during closing
argument that "one thing is for sure about whatever happened
. . . , there's a lot of questions about it," and "[m]aybe
something happened, maybe it didn't").
22
defendant did not act in self-defense. Where the defendant has
sufficiently raised the issue of self-defense, the Commonwealth
carries the burden of proving beyond a reasonable doubt that the
defendant did not act in self-defense. Commonwealth v. King,
460 Mass. 80, 83 (2011). The defendant argues that "there was
insufficient evidence to prove beyond a reasonable doubt the
elements of the charged crimes because the Commonwealth failed
to present any evidence that [the defendant] did not act in
self-defense" as "there was no competent evidence from which the
jury could draw the necessary inferences" that she had not acted
in self-defense. The Commonwealth counters that the evidence
was sufficient "to prove the [d]efendant hit and assaulted [the
victim] without justification," and that the jury were free to
discredit the defendant's self-defense claim. Viewing the
evidence in the light most favorable to the Commonwealth, we
hold that the jury could have found that the defendant did not
act in self-defense on the assault and battery of a family
member charge or on the assault by means of a dangerous weapon
charge. See Commonwealth v. Latimore, 378 Mass. 671, 677-678
(1979).
To satisfy its burden of proving beyond a reasonable doubt
that the defendant did not act in self-defense, the Commonwealth
must establish that at least one of the following factors did
not exist: (1) the defendant had a reasonable concern for her
23
personal safety; (2) she used all reasonable means to avoid
physical combat; and (3) "the degree of force used was
reasonable in the circumstances, with proportionality being the
touchstone for assessing reasonableness." King, 460 Mass. at
83, quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367,
368-369 (2004). Where deadly force is at issue, the defendant
must have had an actual and reasonable belief of "imminent
danger of death or serious bodily harm, from which [she] could
save [herself] only by using deadly force" (citation omitted).
Commonwealth v. Pike, 428 Mass. 393, 396 (1998).
After the Commonwealth rested its case, the defendant
testified in her defense and, in doing so, raised the issue of
self-defense; the judge then instructed the jury on self-
defense. The defendant testified that the victim held her down
on the floor, took and broke her vaporizer, and "smashed into
the mirror,"17 which caused glass shards from the mirror to fall
on the defendant and the victim. She testified that while the
victim pinned her to the ground, she could not move anything
other than her head, so she bit him and used her "head to hit
his nose, or face, or face in general to get off of [her]," and
that she was "pretty sure" this gave him a nosebleed. She also
testified that the victim "took [her] phone and smashed it
17She testified on cross-examination that the mirror broke
when the victim threw her vaporizer at it.
24
across the bathroom sink so [she] couldn't call anyone." She
further testified that she went into the bathroom and locked the
door, that the victim forced his way in, and that she then left
the bathroom and grabbed a knife from the kitchen, which the
victim took from her.
The defendant testified that she went to the hospital after
being released from custody. Her medical records from her visit
to the hospital were admitted, and a photograph, which she
testified was taken four days after the incident and which
depicted a bruise on her head, above her eyebrow, also was
admitted. She testified that she received the bruise from the
victim hitting her in the head with his arm and hand.
The jury were free to reject the defendant's testimony and
instead credit the evidence presented by the Commonwealth. See
Commonwealth v. Fluker, 377 Mass. 123, 128-129 (1979). The
Commonwealth presented sufficient evidence, which included the
victim's injuries, his statements he made over the telephone to
his mother, and the police officers' testimony that they did not
observe any marks or other injuries on the defendant during her
arrest, to allow a reasonable jury to conclude that the
defendant did not act in self-defense. The jury here could have
also credited the various statements made over the course of the
incident, including the victim's statement, "She tried to kill
me. She pulled out a knife," and the neighbors' testimony that
25
the defendant stated, "I'm going to kill you, and I want you
dead" and "I'm gonna F'ing kill you." Given the evidence
presented through the Commonwealth's witnesses, as well as the
evidence of the victim's injuries, the Commonwealth presented
sufficient evidence for the jury to find beyond a reasonable
doubt that the defendant did not act in self-defense. See King,
460 Mass. at 83.
5. Defendant's due process right to a fair trial.
Moreover, contrary to the defendant's argument, the defendant
received a fair trial. The defendant argues that the "preserved
and unpreserved errors combined to deny [her] a fair trial." As
discussed supra, the one error during the trial was the improper
cross-examination, which although error, did not create a
substantial risk of a miscarriage of justice.
6. Third-party restitution. The final issue is whether a
trial judge may order a defendant to pay restitution to a third
party and, if so, whether the order in the present case
satisfied the causation requirement. The defendant argues that
she "should be reimbursed the restitution she was ordered to pay
to the complainant's mother, a nonvictim, for losses the mother
voluntarily incurred." She further argues that even if a trial
judge may order a defendant to pay restitution to a third party,
the order here was improper because the victim's mother's
economic loss was not sufficiently connected to the defendant's
26
offense. The Commonwealth counters that "courts are not limited
to ordering restitution only to named victims, and as the
expenses were related to the offense and reasonably foreseeable,
the court's restitution order was proper." We hold that the
judge properly ordered the defendant to pay restitution to the
victim's mother.
The power of a judge to order restitution in a criminal
case "derives from the judge's power to order conditions of
probation under G. L. c. 276, §§ 87, 87A, and G. L. c. 279,
§ 1." Commonwealth v. McIntyre, 436 Mass. 829, 833 (2002). Cf.
G. L. c. 258B, §§ 1, 3 (o) (victim has right to seek
restitution, and defining "victim" as "any natural person who
suffers direct or threatened physical, emotional, or financial
harm as the result of the commission or attempted commission of
a crime"). A judge's power to order a defendant to pay
restitution is "unquestionable" and "free of any [statutory]
limitation on a judge's authority," and "afford[s] judges
significant latitude in imposing such conditions" (quotations
and citations omitted). Commonwealth v. Denehy, 466 Mass. 723,
737 (2014). See McIntyre, supra, quoting Commonwealth v. Nawn,
394 Mass. 1, 6 (1985) ("There is no question that restitution is
an appropriate consideration in a criminal sentencing"). We
review restitution orders for an abuse of discretion or an error
of law. See McIntyre, supra at 836.
27
In the present case, after a hearing on the issue of
restitution, the judge ordered the defendant to pay $232.37 in
restitution to the victim's mother.18 As the victim's mother
testified at the restitution hearing, the $232.37 covered her
payment for her son's two psychiatrist visits that took place
after the incident, the removal of the staples from his head
that were placed there in the hospital after the incident, and
his prescription medicine connected to the present incident.
The mother provided receipts, which were entered in evidence,
documenting these expenses. However, the differentiating factor
from a more typical restitution order is that here the judge
ordered the defendant to pay restitution to the victim's mother,
rather than to the victim himself. Although a third party (who
is not also a victim of the crime, or a family member of a minor
victim) may not have the "right" to seek restitution under G. L.
c. 258B, § 3 (o), we hold that a judge has the power to order a
defendant to pay restitution to such a third party. See G. L.
c. 258B, §§ 1, 3 (o); Denehy, 466 Mass. at 737 (judge has
"significant latitude" to order restitution [citation omitted]).
18The judge declined to include in the amount of
restitution other expenses that the mother incurred. The
victim's mother testified that she incurred expenses for
"supplies to try to fix the damage that happened the night of
the attack" and a one hundred dollar payment she made toward the
apartment's electric bill. The judge ruled that the electric
bill and hardware supplies were not related to the criminal
offense.
28
While the defendant disputes the validity of a restitution order
to a third party, given the circumstances of this case, with the
defendant causing the victim to need medical care and the
victim's mother paying for that care, it was within the judge's
discretion to order restitution to the victim's mother because
it was "primarily designed to meet . . . the goals of sentencing
and of probation." Commonwealth v. Power, 420 Mass. 410, 414
(1995), cert. denied, 516 U.S. 1042 (1996). We note that third-
party restitution may not always be appropriate, but in the
facts of the present case, where the mother paid for her son's
medically related care, incurred as a direct result of the
defendant's actions, the judge properly ordered it. See
McIntyre, 436 Mass. at 833 ("restitution best serves penal
objectives when it bears a proper relationship to the crime of
conviction, both in kind and proportion").
Moreover, the restitution order met the causation
requirement in the present case. See id. at 834-835, quoting
Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997) (scope of
restitution limited to "loss or damage [that] is causally
connected to the offense and bears a significant relationship to
the offense"). See also Denehy, 466 Mass. at 739 (test adopted
in McIntyre "is a broad test that requires a holistic assessment
of the facts surrounding the crime, not merely those facts
establishing the elements of the crime"). Where the victim's
29
mother presented evidence of expenses she paid for the victim's
medical care as a direct result of the defendant's actions, the
expenses incurred were "causally connected to the offense and
[bore] a significant relationship to the offense." McIntyre,
436 Mass. at 834-835, quoting Glaubius, 688 So. 2d at 915. In
addition, even though the victim was not a minor, it also was
reasonably foreseeable that a mother would pay her twenty-four
year old son's medical and medically related expenses. For
these reasons, the restitution order was proper. See McIntyre,
supra at 836.
So ordered.
LOWY, J. (concurring). I agree with the court that the
defendant's convictions should be affirmed and that aspects of
the prosecutor's cross-examination of the defendant were
improper. I also agree that the improper cross-examination did
not create a substantial risk of a miscarriage of justice. I
write separately to emphasize a point that was made in the
court's opinion. When impeaching a witness, interrogators need
not be able to prove the contrary of a denial of their question
with admissible evidence as a foundation for their inquiry. In
other words, we do not require that the party impeaching the
witness have support for the question through otherwise
admissible evidence. See Commonwealth v. White, 367 Mass. 280,
283-284 (1975) (judge did not err in permitting prosecutor to
ask questions based on prosecutor's pretrial interview with
witness even though prosecutor could only have introduced
admissible evidence of that interview by withdrawing from case
and becoming witness); Mass. G. Evid. § 611(b) & note (2020).
Rather, counsel (or a pro se litigant) must have a reasonable
and good faith basis to ask the question, and the question must
be otherwise permissible. See Commonwealth v. Johnston, 467
Mass. 674, 699 (2014); Commonwealth v. Hart, 455 Mass. 230, 240
(2009) (we prevent attorneys from "pursu[ing] a line of
questioning" for which they have no "good faith basis to believe
2
that" the witness's answers will "prove the matters to which the
line refers" [citation omitted]).