Commonwealth v. Gardner

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21-P-1007 Appeals Court
COMMONWEALTH vs. ROBERT GARDNER.
No. 21-P-1007.
Middlesex. September 9, 2022. – February 15, 2023.
Present: Shin, Hand, & Brennan, JJ.
Rape. Assault and Battery. Assault and Battery by Means of a
Dangerous Weapon. Stalking. Protective Order.
Intimidation of Witness. Husband and Wife, Rape.
Practice, Criminal, Required finding, Discovery, New trial,
Assistance of counsel, Hearsay, Argument by prosecutor.
Evidence, Medical record, Telephone conversation, Verbal
completeness.
Indictments found and returned in the Superior Court
Department on September 11, 2015, and August 17, 2017.
The cases were tried before Robert L. Ullmann, J., a
postconviction motion for discovery and funds was heard by him,
and a motion for a new trial was heard by him.
Dennis Shedd for the defendant.
Ryan J. Rall, Assistant District Attorney, for the
Commonwealth.
BRENNAN, J. A Superior Court jury convicted the defendant,
Robert Gardner, of aggravated rape, assault and battery causing
2
serious bodily injury, assault and battery by means of a
dangerous weapon causing serious bodily injury (two counts),
assault and battery on a family or household member (two
counts), stalking, violation of a restraining order, and
intimidation of a witness.1 The offenses were committed against
his former wife, spanned over half a decade, and resulted in
significant physical injuries to the victim at various times,
including a fractured back, a broken nose, and a fractured
skull. This physical violence was underpinned by emotional
manipulation of the victim, and frequently manifested in the
defendant's pressure on her to recant her allegations and assert
her marital privilege not to testify against him.
We consider the defendant's appeals from his convictions,
the order denying his postconviction motion for discovery and
funds, and the order denying in part his motion for a new trial
based on his claims of ineffective assistance of trial counsel.2
1 The jury acquitted the defendant of a second count of
aggravated rape, rape, assault with intent to rape (two counts),
and a second count of intimidation of a witness. A related
charge of cruelty to animals was dismissed prior to trial.
2 The defendant contended that his trial counsel was
ineffective for a variety of reasons. After a nonevidentiary
hearing, the judge agreed with the defendant on one of these
arguments -- that counsel was ineffective in failing to request
an instruction defining "substantial emotional distress" -- and
thus granted a new trial on the intimidation of a witness
conviction. The judge otherwise denied the defendant's motion.
The Commonwealth did not appeal from the partial allowance of
the motion for a new trial.
3
Concluding that (1) there was sufficient evidence of witness
intimidation to support the defendant's conviction, (2) there
was no error in the admission at trial of a recorded telephone
conversation between the defendant and his father, (3) the
denial of the defendant's postconviction request for discovery
and funds was not an abuse of the judge's discretion, and (4)
trial counsel was not ineffective, we affirm.
1. Background. The defendant and the victim began dating
in 2004, married in 2009, and ultimately divorced in 2017. Less
than one year into their relationship the defendant became
physically and sexually abusive toward the victim. Thereafter,
the defendant frequently was violent toward her, although the
victim rarely reported his abuse.
The first reported incident of abuse occurred on August 7,
2008. According to the victim, after she refused the
defendant's demand for sex, he held her cat against the wall by
its throat, hit the victim, and raped her.3 The victim reported
to police what the defendant had done to her cat but was "too
scared" to disclose the sexual assault. The defendant soon
convinced the victim that the incident was her fault, and she
wrote a letter to him apologizing "for the court case[] that I
3 The defendant was acquitted of the rape charge relating to
this incident.
4
have you involved in." The victim later provided an affidavit
to the prosecutor, written by the defendant, then copied and
signed by the victim, requesting that the charges be dismissed.
The next reported assault took place on February 20, 2011.
After a night of arguing, the defendant and the victim began to
have consensual sex. When the victim tried to stop the sexual
interaction, the defendant pushed her down and hit her
repeatedly. Although she called the police, the victim
initially reported only the physical abuse, because she was
"[still] too scared" to report the sexual assault. As a result
of this attack, she suffered swelling and bruising on her head,
pain in her ribs, vaginal bleeding, and a broken vertebra.
The victim obtained a restraining order against the
defendant in conjunction with this assault. Shortly after the
order issued, the defendant violated it. The victim reported
the restraining order violation to police and the defendant was
charged in the District Court. Subsequently, the victim
submitted an affidavit to the District Court, drafted by the
defendant's attorney, asking that the criminal cases against the
defendant be dismissed.
On October 2, 2014, an argument between the victim and
defendant escalated into a physical assault in which the
defendant broke the victim's nose. The victim called police and
the defendant was arrested. Over the next several months, the
5
defendant repeatedly tried to convince the victim to retract
those allegations of domestic violence. He was angry with the
victim and told her the incident was not his fault, but instead
was a result of her mental illness. One such conversation in
March 2015 erupted into another violent incident that resulted
in the defendant's arrest.4 While held in custody on that
matter, the defendant told the victim to get him out of jail,
directed her to call his attorney, and instructed her to obtain
letters from her psychiatrist to support her recantation of the
allegations against him. Ultimately, the victim provided the
District Court with a letter from her psychiatrist and indicated
that she did not want to cooperate with prosecution. The
charges in the District Court were dismissed at the victim's
request.
On June 3, 2015, after the victim refused the defendant's
demand for sex, the defendant threw an object at the victim,
striking her in the head and fracturing her skull. After
calling 911, the victim passed out in the street. The victim
went by ambulance to the hospital, where she underwent a
craniotomy to remove a blood clot and relieve pressure on her
brain.
4 The March 2015 incident was not the subject of an
indictment in this case.
6
After her release from the hospital, the victim lived in
New Hampshire. On July 24, 2015, she rented a motel room in
Tewksbury and agreed to see the defendant. The victim initially
consented to have sex with the defendant, but when she told him
to stop, they argued. The defendant disabled the telephone in
the motel room (motel phone) so that the victim could not call
for help. Over the next few hours, the defendant repeatedly
raped the victim vaginally and forced his penis into her mouth.
When the victim yelled at him to stop, the defendant put his
hand over her mouth to keep her quiet, which caused the victim
to struggle to breathe. When the victim tried to leave, the
defendant stood in front of the door and locked it. At some
point, the victim got her cell phone and dialed 911. She turned
on the cell phone speaker and the defendant made several
whispered threats, including that he was going to kill her and
her daughter. The defendant fled before police arrived.
When police arrived, the victim was crying and shaking.
She had bruising and swelling on her face, her mouth was
bleeding, and the room was in disarray with the motel phone
ripped off the wall. Although initially reluctant to seek
treatment, the victim went to the hospital later that day. A
sexual assault nurse examiner (SANE) documented numerous
injuries and bruising all over the victim's body.
7
Shortly after her release from the hospital, the victim
spoke to the defendant. The police had not yet arrested the
defendant and, despite the most recent attack, the victim did
not want them to do so because she still loved him. The
defendant told the victim that to avoid his prosecution they
should run away and stay elsewhere for several years. The
defendant and victim left Massachusetts together the following
day, but a police task force eventually located them in New
Jersey. Immediately after his arrest, the defendant began to
exhort the victim from the holding cell to support him: "We're
strong, we know how to do this . . . we just got to do what we
have to do to be strong."
The defendant was returned to Massachusetts and
subsequently charged in Superior Court in indictments that
encompassed the victim's allegations of abuse from 2011 through
2015. While in custody awaiting trial, he sent letters to the
victim. As a result of his sending those letters, the defendant
was charged in a separate indictment with intimidation of a
witness. All the indictments were joined for trial.
2. Discussion. a. Direct appeal. i. Sufficiency of
evidence of intimidation of a witness. The defendant was
convicted of one count of intimidation of a witness. His first
challenge on appeal is to the judge's denial of his motion for a
required finding of not guilty as to that indictment. When
8
reviewing the denial of a motion for a required finding of not
guilty, "we consider the evidence introduced at trial in the
light most favorable to the Commonwealth, and determine whether
a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Oberle, 476 Mass. 539, 547 (2017). "The inferences that support
a conviction 'need only be reasonable and possible; [they] need
not be necessary or inescapable.'" Commonwealth v. Waller, 90
Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods,
466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014).
The elements required to prove intimidation of a witness
are that the defendant (1) willfully; (2) threatened,
intimidated, or harassed; (3) a witness "in a criminal
proceeding of any type; (4) with the intent to impede or
interfere with a criminal investigation or proceeding."
Commonwealth v. Nordstrom, 100 Mass. App. Ct. 493, 499-500
(2021). See G. L. c. 268, § 13B. The defendant argues that
there was insufficient evidence that the defendant threatened,
intimidated, or harassed the victim. Although we agree that the
defendant did not explicitly threaten the victim, we conclude
that there was sufficient evidence to support a conviction of
witness intimidation either by intimidation or by harassment.
As relevant here, "intimidation" means "acts or words that
would instill fear in a reasonable person." Commonwealth v.
9
Rivera, 76 Mass. App. Ct. 530, 535 (2010). See Commonwealth v.
Perez, 460 Mass. 683, 703 (2011). The Commonwealth's evidence
demonstrated that the parties' lengthy relationship was
punctuated by cycles of the defendant abusing, supporting,
blaming, "gaslighting,"5 and pressuring the victim to recant her
allegations against him. See Commonwealth v. Pagels, 69 Mass.
App. Ct. 607, 613 (2007) ("the jury may consider the context in
which the allegedly threatening[, intimidating, or harassing]
statement was made and all of the surrounding circumstances").
In the trove of letters sent by the defendant to the victim from
jail while he awaited trial on the various charges stemming from
his abuse of her between 2011 and 2015, the defendant
consistently urged the victim not to testify against him,6
5 Gaslighting is defined as "psychological manipulation of a
person usually over an extended period of time that causes the
victim to question the validity of their own thoughts,
perceptions of reality, or memories and typically leads to
confusion, loss of confidence and self-esteem, uncertainty of
one's emotional or mental stability, and a dependency on the
perpetrator." Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/gaslighting
[https://perma.cc/Q6XW-SGTU].
6 For example, he wrote to her that "even in the Bible it
talks about solving your legal battles before you go before a
judge." After the victim filed for divorce, the defendant
provided her with a written "motion to stay judgement [sic] for
divorce" and asked her to file it in court. He explained that
reconsidering divorce was her "best opportunity to not have to
testify."
10
admonished her for meeting with prosecutors,7 and coached her on
what to say in court.8 Although not explicitly threatening, the
letters included repeated references to the victim as both the
reason for his incarceration and prosecution and the only
potential key to his freedom. We are satisfied that in the
context of the defendant's longstanding pattern of controlling
and abusive conduct toward the victim, the defendant's words
would have made a reasonable person fearful of the consequences
of refusing to do as the defendant directed. See Commonwealth
v. Carvalho, 88 Mass. App. Ct. 840, 845-846 (2016) (even where
defendant's words are not expressly threatening, intimidating,
or harassing, his behavior may fall within meaning of
intimidation).
Alternatively, "harassment" under the witness intimidation
rubric requires proof of an act that "seriously alarms or
annoys" a person "and would cause a reasonable person . . . to
suffer substantial emotional distress." G. L. c. 268,
7 When he learned that the victim provided his letters to
the prosecutor, the defendant sent a letter criticizing her for
"run[ning] straight to the [assistant district attorney] with
[them]," and told her, "that's the problem with your actions,
you don't think about the long term consequence."
8 In one letter discussing "this intimidation charge," the
defendant writes, "It might help if you let people know you
don't feel afraid or intimidated." In another, he tells the
victim not to object to his request to obtain her medical
records.
11
§ 13B (a). See Commonwealth v. Middleton, 100 Mass. App. Ct.
756, 763-764 (2022). "[E]motional distress that is merely
trifling or passing is not enough to satisfy this element, but
must be markedly greater than that commonly experienced as part
of ordinary living." Commonwealth v. Robinson, 444 Mass. 102,
108 (2005). There was ample evidence in this case that the
victim suffered years of sexual, physical, and emotional abuse
by the defendant in a controlling domestic relationship from
which she was struggling to extricate herself.9 The defendant's
letters to the victim from jail plucked the same emotional
strings that led her to recant in prior cases, and he played on
the victim's embedded insecurities in his repeated attempts to
convince her to abandon this prosecution.10 The victim testified
that the defendant's barrage of letters and telephone calls "was
driving my head crazy . . . repeating the same thing when
9 As we have acknowledged previously, "[d]omestic violence
is a complex phenomenon that results in psychological and
physical injuries to a significant number of persons each year
. . . . The pattern typically exhibited by battered women . . .
includ[es] their tendency to leave and then return to the
batterer many times before finally ending the relationship"
(quotation and citation omitted). Commonwealth v. Gordon, 87
Mass. App. Ct. 322, 333 n.13 (2015).
10Sounding a theme woven into virtually every
communication, in one such letter the defendant wrote, "your
life's a mess and you need to get it back in order," and advised
the victim to "go back to church" to "make amends," while
simultaneously professing his love for her and insisting, "this
is my last chance, our last chance, to stop this [prosecution]."
12
expecting a different result and a different result wasn't going
to come." She also testified that the communications were so
upsetting that she refused to accept them for a time, and that
she ultimately came to understand why her family and friends
were fearful for her. Considering the victim's testimony in
context, we are satisfied that the defendant's efforts to
convince her to foil the prosecution against him for abusing her
caused the victim "serious alarm or annoyance" and would have
engendered "substantial emotional distress" in a reasonable
person. See Robinson, supra.In sum, we are satisfied that the evidence was sufficient
under both the "intimidation" and "harassment" theories of
witness intimidation, either one of which would have supported
the defendant's conviction.
ii. Telephone call between the defendant and his father.
The Commonwealth introduced in evidence, over the defendant's
objection, a portion of a recorded telephone call the defendant
made to his father from jail on September 5, 2015, while
awaiting trial (September 5 call).11 The defendant argues that
his father's statements were inadmissible because they included
11The judge instructed the jury not to "take anything that
[the father] said for the truth of the matter."
13
an opinion that the victim was being truthful.12 We disagree.
Contrast Commonwealth v. Spencer, 465 Mass. 32, 48 (2013)
(detectives' opinion that defendant is guilty and lying and
"police reiteration of accusations by third parties that the
defendant has denied" are inadmissible). The father's
statements provided context for the defendant's admissions that
"I have no defense against this" and "I haven't been able to own
up to it yet because of this phone thing." See Mass. G. Evid.
§ 801(d)(2)(A) (2022); Commonwealth v. Mejia, 88 Mass. App. Ct.
227, 238 (2015) (statement of second speaker on telephone call
properly admitted to provide context to conversation).
Particularly where the jury were instructed that they could not
consider the father's statements for their truth, we discern no
error in the judge's implicit determination that the probative
value of the father's statements outweighed any prejudice to the
defendant, and no abuse of discretion in the admission of those
statements. See Commonwealth v. Robertson, 489 Mass. 226, 237–
238, cert. denied, 143 S. Ct. 498 (2022) (witness's opinion
12Although the defendant does not identify with specificity
which of the statements were inadmissible, it appears that he is
challenging the following statements made by the father at
various points during the call: "[Y]ou need to face up to what
you've done"; "[Y]ou use this marital privilege as a shield and
I disagree"; "In talking to [the victim], I don't believe that
[she was pressured]. . . . That's not where I feel things are
at"; and "I'm sure there's more than one side. But I don't
think you own up to your side either."
14
testimony did not require reversal where judge gave appropriate
curative instruction); Spencer, supra (weighing probative value
versus prejudice of proffered evidence entrusted to trial
judge's broad discretion).
b. Postconviction discovery. Prior to filing his motion
for a new trial, the defendant requested discovery of the
victim's medical records and funds for experts to review them.
"Discovery in the context of a new trial motion under Mass. R.
Crim. P. 30 (c) (4), 378 Mass. 900 (1979), is not a matter of
right. The motion and affidavits must first establish a prima
facie case before discovery is available." Commonwealth v.
Arriaga, 438 Mass. 556, 569 (2003). Here, counsel's affidavit
averred only that the discovery was necessary to explore the
effects that medication and mental illness "may have had" on the
victim's behavior and memory and the reasons she required nasal
surgery in April 2015. Where the defendant advanced no more
than a hypothetical and speculative basis for his request, we
discern no abuse of discretion in the judge's denial of the
motion. See Commonwealth v. Camacho, 472 Mass. 587, 598 (2015)
("In order to prevail on a posttrial discovery motion, a
defendant must demonstrate that it is reasonably likely that
such discovery will lead to evidence possibly warranting a new
trial").
15
c. Motion for a new trial.13 The defendant raised numerous
claims of ineffective assistance of counsel in his motion for a
new trial. Where, as here, the motion judge was the trial
judge, "[r]eversal for abuse of discretion is particularly
rare." Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004),
quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995). To
prevail on a claim of ineffective assistance of counsel, "the
defendant must show that the behavior of counsel fell measurably
below that of an ordinary fallible lawyer and that such failing
'likely deprived the defendant of an otherwise available,
substantial ground of defence.'" Commonwealth v. Prado, 94
Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). Reviewing the denial of the
defendant's motion for a new trial for a significant error of
law or abuse of discretion, see Commonwealth v. Wright, 411
Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014); Commonwealth
v. Sorenson, 98 Mass. App. Ct. 789, 791 (2020), cert. denied,
142 S. Ct. 107 (2021), we discern no reason to disturb the
judge's ruling.
13 As we have noted, the judge decided the defendant's
motion after a nonevidentiary hearing; he outlined his reasoning
in a thoughtful and detailed written memorandum. On appeal, the
defendant does not contend that the judge, who also presided
over the trial, erred in failing to take additional evidence on
the motion.
16
i. Telephone calls. As we have discussed, defense counsel
objected to the introduction of the September 5 call between the
defendant and his father on the ground that it included improper
opinion evidence. In his motion for a new trial, the defendant
argued that counsel should have raised additional objections to
that call, and also should have objected to the scope of the
redactions made to the recordings of other telephone calls
played for the jury. We disagree.
A. Verbal completeness. "When a party introduces a
portion of a statement or writing in evidence the doctrine of
verbal completeness allows admission of other relevant portions
of the same statement or writing which serve to 'clarify the
context' of the admitted portion" (citation omitted).
Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). See Mass.
G. Evid. § 106(a) (2022). The defendant contends that the
September 5 call was redacted improperly to omit his statement,
"I have not instigated any of this," and as a result the
conversation failed to establish that he disputed the victim's
allegations.14 Even assuming that the redacted portion of the
14The following exchange from that call was not part of the
evidence presented to the jury:
Defendant: "Yeah. Everything we say from now until the
end of my trial is going to be recorded."
Father: "I believe that."
17
conversation was admissible under the doctrine of verbal
completeness, the defendant's statement that he had not
"instigated any of this" was not a denial of guilt of the crimes
charged against him. Nor was it inconsistent with the victim's
version of several of the incidents, in which she described
starting arguments that the defendant then escalated. Thus, we
fail to discern in this instance how "better work might have
accomplished something material for the defense." Commonwealth
v. Satterfield, 373 Mass. 109, 115 (1977).
The defendant also argues that two recorded telephone
conversations with the victim were redacted in a manner that
allowed the prosecutor to argue that he was trying to convince
the victim to provide false information to the court by way of a
letter from her therapist in order to "get the [2015] charges
dropped," or allowed the jury to infer that he was urging the
victim to give false testimony. We need not linger on this
argument. Even assuming, without deciding, that trial counsel
fell below acceptable standards in failing to object to the
redactions at issue, see Saferian, 366 Mass. at 96, because
these calls pertained only to the witness intimidation charge on
which the defendant was acquitted, there was no resulting
Defendant: "So how it [sic] that we're going to talk and
talk about this situation? I told you that, you know, I have
not instigated any of this."
18
prejudice to the defendant. See Commonwealth v. Duffy, 62 Mass.
App. Ct. 921, 923 (2004) ("difficult to find that the admission
of the evidence caused prejudice where defendant was acquitted
on two of three indictments" [quotation and citation omitted]).
B. Adoptive admissions. "The theory of adoptive
admissions is straightforward: Where a party is confronted with
an accusatory statement which, under the circumstances, a
reasonable person would challenge, and the party remains silent
or responds equivocally, the accusation and the reply may be
admissible on the theory that the party's response amounts to an
admission of the truth of the accusation" (quotation and
citation omitted). Commonwealth v. Braley, 449 Mass. 316, 320–
321 (2007). See Mass. G. Evid. § 801(d)(2)(B) (2022). At
trial, the Commonwealth presented the defendant's statements in
telephone calls with the victim on April 3 and April 6, 2015, as
adoptive admissions to hitting her in the face and breaking her
nose.15 Trial counsel did not object to the introduction of the
15In the first call, the defendant told the victim, "you
can't be talking on the phone like this, baby," in response to
her statement, "you fucking knocked me right in the nose." The
second challenged conversation contained the following exchange:
Victim: "No it's not, but you broke my nose."
Defendant: "Okay."
Victim: "Plain and simple."
Defendant: "Okay."
19
calls or the Commonwealth's theory. In his motion for a new
trial, the defendant claimed that counsel was ineffective
because his statements were not adoptive admissions. It was
within the judge's discretion to conclude that the defendant's
response, "Okay," to the victim's statement that he had broken
her nose and his statement, "I'm not going to really get into
this because we're on the phone," when she referred to her need
for surgery to repair the broken nose, were admissible as
adoptive admissions by the defendant. Because the calls were
properly admitted at trial, it was not ineffective for counsel
to fail to object to them. See Commonwealth v. McWilliams, 473
Mass. 606, 615 (2016) (counsel not ineffective for failing to
file motion to suppress that would have been unsuccessful);
Commonwealth v. Leng, 463 Mass. 779, 783 (2012) ("An objection
to such properly admitted evidence would not likely have been
successful. Counsel's omission, therefore, does not constitute
ineffective assistance of counsel").
C. Additional objections. The defendant further argues
that counsel was ineffective for failing to object to the
Victim: "I had to go into surgery."
Defendant: "Right, and I'm not going to really get into
this because we're on the phone here. . . ."
20
admission of a portion of his April 11, 2015 telephone call with
the victim about the October 2014 incident in which he broke the
victim's nose.16 He contends that the victim's statements were
irrelevant because that incident did not involve sexual assault
charges; he also claims that they contained multilevel hearsay
and were unduly prejudicial. We disagree. The conversation was
admissible for the nonhearsay purpose of showing the defendant's
state of mind, the victim's state of mind, and the nature of
their relationship. See Commonwealth v. Javier, 481 Mass. 268,
281 (2019) ("evidence may be relevant if it only 'throw[s]
light' on an issue" [citation omitted]); Commonwealth v.
Cruzado, 480 Mass. 275, 280 (2018) ("out-of-court statement not
offered for its truth is not hearsay"). Moreover, the
defendant's claim of undue prejudice is belied by his acquittal
on the relevant charge of witness intimidation. See Duffy, 62
Mass. App. Ct. at 923.
16During the call, the victim indicated that she no longer
wished to speak to the defendant's attorney because she was
concerned that her statement that "we hit each other" would be
"use[d] against [her] in court." In response, the defendant
stated, "[the attorney] told me a lot of stuff that you said
about me . . . . You told her a lot of other stuff, too. . . .
You know, it's the same kind of things that you told my parents,
that -- that, you know, that you make people believe that I'm
using drugs all the time and that when I use drugs that I want
to rape you, so. And that's what you told my attorney."
21
Lastly, the defendant argues that his attorney should have
objected to the admission of telephone calls on September 4 and
5, 2015, between the defendant and his father because the calls
contained inadmissible opinions expressed by his father.17 We
are not persuaded. In both calls, the father's statements were
relevant and admissible to provide context to the defendant's
admissions during the same conversation. See Commonwealth v.
Mullane, 445 Mass. 702, 711 (2006) (statement offered to provide
context for conversation between detective and third party);
Mejia, 88 Mass. App. Ct. at 238. Moreover, the jury's verdicts
acquitting the defendant on five of the charges against him
17In the first call, the father stated that the defendant
"put[] [himself] in a worse position" by calling the victim and
"running."
The father's statements in the second call were more
extensive:
"I won't believe either side 100 percent . . . . Her story
is consistent. . . . What she's saying is that is what
happened. She's not going to lie about it, you know. . . .
I've told you, you know, what she says and what you say and
they're completely different. . . . And that's why we have
told [sic] I think you need some help. You need some
counseling. . . . You know, she consistently says that you
take drugs and that's not that hard to believe. . . . It
means that you're not in your right mind at those
times. . . . I try and give you my best advice . . . and
what you've done is ignore these things and get deeper and
deeper in. You get yourself so deep in I can't help you
anymore. . . . But you're trying to save [a marriage]
that's not worth saving. . . . You tell me . . . we're in
such love. That is not love, Bobby. I hate to tell you."
22
suggest that any unfair prejudicial effect of that evidence did
not outweigh its probative value. See Commonwealth v. Walker,
442 Mass. 185, 201 (2004) (no indication that jury improperly
applied evidence where defendant acquitted of charge to which
evidence did not pertain). Because the statements were
admissible, counsel was not ineffective for failing to object to
their admission. See Leng, 463 Mass. at 783.
ii. Prosecutor's closing argument. The defendant asserts
that trial counsel should have objected to various portions of
the prosecutor's closing argument. First, he contends that two
statements by the victim to the defendant used in the
prosecutor's closing -- that an associate of the defendant's
attorney told "her what to say . . . to get the charges dropped"
and that she was unable to "breathe through one side of [her
broken] nose" -- were hearsay, and that the prosecutor
improperly argued them for their truth. This argument fails
because the defendant did not object to the admission of those
statements, and therefore they were admitted without limitation
and could be argued accordingly. See Carmona, 428 Mass. at 271("Hearsay, once admitted, may be weighed with the other
evidence, and given any evidentiary value which it may possess"
[citation omitted]).
Next, the defendant claims that the prosecutor misstated
evidence by arguing that a particular medical record showed that
23
the victim was compliant with her mental health medications
except when the defendant took them for his own use. We are
satisfied that the record to which the prosecutor referred
supported her argument.
The defendant further asserts that the prosecutor
improperly stated that there was no evidence of the victim
taking drugs that altered her memory or perception of the 2015
reported abuse. The victim was impeached on cross-examination
with a prior statement that she had ingested Klonopin and was
"in a blackout" the day of the incident, but there was no
substantive evidence that she took her medications that day.
See Commonwealth v. Mandeville, 386 Mass. 393, 400 (1982) ("It
is well established that a witness may explain, modify, or
correct damaging testimony that was elicited during cross-
examination").
Finally, the defendant claims that the prosecutor made a
knowingly false statement when she argued, "Nothing that this
defendant has said in a call or a letter about his version of
events can explain the marks on [the victim] from that incident
or from any of the other incidents."18 Viewing the prosecutor's
statement in the context of the entire closing, however, the
18The defendant stated during a telephone call that the
victim caused her own injuries by punching herself in the face
and smashing her head against a floor, a mirror, and a wall.
24
prosecutor was not denying that the defendant had offered
explanations for the victim's injuries, but rather was
suggesting that his explanations were implausible. See
Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 279 (2021) (no
impropriety in prosecutor's argument to effect that defendant's
version of events "didn't make any sense").
In sum, we agree with the judge's conclusion that there was
nothing improper in the prosecutor's argument. Where there was
no error in the prosecutor's closing, it is axiomatic that there
was no basis for trial counsel to object to it. We therefore
conclude that his failure to do so was not ineffective.
Furthermore, even if any of the challenged portions of the
argument were improper, any risk that the defendant was
prejudiced as a result of those flaws was obviated by the
instructions to the jury regarding the limited purposes of
closing arguments. See Commonwealth v. Reyes, 483 Mass. 65, 77
(2019) (no miscarriage of justice arising from prosecutor's
closing where defense counsel did not object, judge provided
general instruction that closing arguments were not evidence,
and relevant statement "was discussed only in passing").
iii. Medical records and testimony. The defendant further
contends that trial counsel was ineffective for not moving to
redact certain medical records or object to improper hearsay
testimony of medical personnel. We agree that the parts of the
25
medical records describing incidents as "assaults" and
containing statements from the victim that identified the
defendant as the perpetrator, as well as similar information
imparted in the testimony of medical providers, were
objectionable. See Commonwealth v. Dargon, 457 Mass. 387, 396
(2010) (printed language on SANE forms "such as 'assault' and
'assailant'" should be redacted); Commonwealth v. Arana, 453
Mass. 214, 231 (2009) ("a patient's statement of . . . by whom
[injuries were] inflicted, generally is not admissible . . .
even if made to a physician").
Although this showing satisfies the first prong of the
Saferian test, the defendant's argument falters on the test's
second prong. Trial counsel's strategy was to discredit the
victim as an untruthful person. To that end, he extensively
cross-examined the victim on the various versions of events she
provided to police, offered medical records showing that the
victim had "lied" to hospital staff, and forcefully argued to
the jury that "[the victim] lied to everyone she's spoken to."
Because the defense focused on the victim's credibility rather
than the form or details of her complaints about the defendant's
conduct, trial counsel's failure to object to evidence that the
victim reported that the defendant had abused and raped her did
not prejudice the defendant. See Commonwealth v. Medeiros, 456
Mass. 52, 62 (2010) (counsel not ineffective despite failure to
26
seek redaction of medical records that named defendant and
contained "sexual assault" diagnosis where defense was that
victim fabricated incident). That the defense was at least
partially successful -- the jury acquitted the defendant of
several counts of sexually assaulting the victim -- bolsters our
conclusion. See Commonwealth v. Kolenovic, 471 Mass. 664, 674
(2015) (in context of ineffective assistance claim, test is one
of "reasonableness [not] perfection").
iv. Police testimony. Finally, the defendant argues that
trial counsel was ineffective for failing to object to hearsay
testimony from a police detective. The detective testified that
in June 2015 a patrol officer found the victim suffering from
head trauma and medical personnel later treated her for "a
temporal fracture." He also verified that the victim reported
assaults in August 2008, February 2011, October 2014, June 2015,
and July 2015, and that there were police reports pertaining to
those incidents. Absent a showing of relevancy not made here,
such testimony was inadmissible. See Commonwealth v. Stuckich,
450 Mass. 449, 457 (2008) (unnecessary and improper to describe
investigative process in sexual assault trial). We agree that
trial counsel therefore should have objected to it. See
Commonwealth v. Sullivan, 478 Mass. 369, 376 (2017) (use of
hearsay testimony from police "carefully circumscribed" and is
27
admissible only if police knowledge is relevant to issue in
case).
Once again, however, the defendant's ineffective assistance
claim fails for lack of any showing that he was prejudiced by
counsel's error. The defendant did not dispute at trial that
the victim was injured or that she made reports to police.
Instead, he attacked her truthfulness regarding how the injuries
occurred and whether the assault allegations were fabricated.
The detective's testimony was brief, undetailed, and cumulative
of other evidence. We discern no prejudice from its admission.
See Commonwealth v. Barbosa, 463 Mass. 116, 127, 129-130 (2012)
(hearsay testimony from detective should not have been admitted
but no prejudice to defendant because admitted testimony was
cumulative).
3. Conclusion. We affirm the judgments and the orders
denying the defendant's postconviction motion for discovery and
funds and motion for a new trial.
So ordered.