NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1494
COMMONWEALTH
vs.
BEHNAM PARVARESH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant,
Behnam Parvaresh, was convicted of assault and battery on a
family or household member, G. L. c. 265, § 13M (a), and
strangulation, G. L. c. 265, § 15D (b).1 The defendant filed a
motion for a new trial on the strangulation conviction, arguing
that he received ineffective assistance of counsel because trial
counsel failed to investigate and call an expert witness to
rebut evidence of injuries to the victim's neck that
corroborated the victim's allegations of strangulation. The
motion judge, who was not the trial judge, denied the
1The defendant was acquitted of two other charges: witness intimidation, G. L. c. 268, § 13B, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). defendant's motion for a new trial without an evidentiary
hearing. The defendant's direct appeal from his convictions and
his appeal from the order denying his motion for a new trial
were consolidated in this court. On appeal, the defendant
argues that the motion judge erred in denying his motion for a
new trial and that the trial judge erred in the admission of
certain evidence. We affirm.
Discussion. 1. Ineffective assistance of counsel. Trial
counsel is ineffective when "(1) 'there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinarily fallible lawyer'; and (2) as a
result, the defendant was 'likely deprived . . . of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Henley, 488 Mass. 95, 134 (2021), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). When the ineffective
assistance claim is "based on a tactical or strategic decision,
the test is whether the decision was 'manifestly unreasonable
when made'" (quotation omitted). Commonwealth v. Kolenovic, 471
Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446
Mass. 435, 442 (2006). Manifestly unreasonable decisions refer
only to "strategy and tactics which lawyers of ordinary training
and skill in the criminal law would not consider competent."
Kolenovic, supra, quoting Commonwealth v. Pillai, 445 Mass. 175,
2 186-187 (2005). Finally, "[a]bsent a constitutional error, we
review the denial of a motion for a new trial for an abuse of
discretion." Commonwealth v. Corey, 493 Mass. 674, 684 (2024).
At trial, the Commonwealth introduced (1) the victim's
testimony that the defendant strangled her; (2) medical records
made by the treating physician and nurse; and (3) photographs of
the victim's neck and limbs taken at the emergency room. During
trial, the defendant's theory of the case was that the victim
fabricated the allegations against him. Through effective
cross-examination, trial counsel raised the issue of reasonable
doubt as to how the victim's injuries were caused, focusing on
various apparent inconsistencies of when the scratches were seen
on the victim's neck.
The defendant now argues that trial counsel provided
ineffective assistance by failing to consult with a medical
expert to rebut the Commonwealth's evidence of the victim's
injuries to her neck, which corroborated the victim's testimony
that the defendant grabbed her by the neck and applied pressure.
In support of his motion for a new trial, the defendant offered
the affidavit of Dr. Christian Klaucke, an emergency room
doctor, who reviewed the trial evidence and the medical
literature. In the affidavit, the defendant's expert opined
that the timing of the markings on the victim's neck were
3 inconsistent with "an alleged non-lethal strangulation event
occurring just prior to [the victim making] the 911 call."
The defendant also submitted an affidavit from trial
counsel, who stated that he considered calling a medical expert
but decided against it. Trial counsel explained that he was
reluctant to argue that the victim caused the injuries to
herself, fearing that he would alienate the jury. Instead,
trial counsel chose to focus on cross-examination of a nurse
regarding the absence of notes in the medical file about
scratches or abrasions to the victim's neck when she arrived at
the hospital and attempted to focus the jury's attention on the
existence of reasonable doubt.2
The defendant has failed to demonstrate that trial
counsel's approach was manifestly unreasonable or that he was
deprived of an otherwise available substantial ground of
defense.3 First, the victim's injuries were not so complex as to
2 We note that this strategy proved effective as the defendant was acquitted of charges of assault and battery by means of a dangerous weapon and intimidation of a witness.
3 The defendant also argues that the motion judge abused his discretion by denying the defendant's request for an evidentiary hearing on the motion for new trial. It was not an abuse of discretion for the motion judge to decline to conduct an evidentiary hearing where, as here, the motion was thoroughly briefed and, for the reasons discussed herein, the motion and affidavits did not make an adequate showing that would raise a substantial issue. See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See also Commonwealth v.
4 render trial counsel's failure to call an expert medical witness
manifestly unreasonable. Cf. Commonwealth v. Baran, 74 Mass.
App. Ct. 256, 277-278 (2009) (ineffective assistance of counsel
not to hire expert where prosecutor called three physicians and
child psychotherapist). Here, the defendant's expert noted that
"[a] fair-skinned individual . . . can actually demonstrate the
rapid timing of an abrasion's appearance on themselves by simply
scratching their own forearm with a fingernail." The expert
also acknowledged that a review of the medical literature
suggests that up to forty percent of non-fatal strangulation
injuries have no external signs. Therefore, the absence or
presence of abrasions and scratches is not dispositive of
whether the victim was strangled.
Second, there is no requirement that trial counsel present
expert medical evidence to support an argument, "especially
where other evidence is presented to support it." Commonwealth
v. Hensley, 454 Mass. 721, 736 (2009). Through cross-
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1494
COMMONWEALTH
vs.
BEHNAM PARVARESH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant,
Behnam Parvaresh, was convicted of assault and battery on a
family or household member, G. L. c. 265, § 13M (a), and
strangulation, G. L. c. 265, § 15D (b).1 The defendant filed a
motion for a new trial on the strangulation conviction, arguing
that he received ineffective assistance of counsel because trial
counsel failed to investigate and call an expert witness to
rebut evidence of injuries to the victim's neck that
corroborated the victim's allegations of strangulation. The
motion judge, who was not the trial judge, denied the
1The defendant was acquitted of two other charges: witness intimidation, G. L. c. 268, § 13B, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). defendant's motion for a new trial without an evidentiary
hearing. The defendant's direct appeal from his convictions and
his appeal from the order denying his motion for a new trial
were consolidated in this court. On appeal, the defendant
argues that the motion judge erred in denying his motion for a
new trial and that the trial judge erred in the admission of
certain evidence. We affirm.
Discussion. 1. Ineffective assistance of counsel. Trial
counsel is ineffective when "(1) 'there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinarily fallible lawyer'; and (2) as a
result, the defendant was 'likely deprived . . . of an otherwise
available, substantial ground of defence.'" Commonwealth v.
Henley, 488 Mass. 95, 134 (2021), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). When the ineffective
assistance claim is "based on a tactical or strategic decision,
the test is whether the decision was 'manifestly unreasonable
when made'" (quotation omitted). Commonwealth v. Kolenovic, 471
Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446
Mass. 435, 442 (2006). Manifestly unreasonable decisions refer
only to "strategy and tactics which lawyers of ordinary training
and skill in the criminal law would not consider competent."
Kolenovic, supra, quoting Commonwealth v. Pillai, 445 Mass. 175,
2 186-187 (2005). Finally, "[a]bsent a constitutional error, we
review the denial of a motion for a new trial for an abuse of
discretion." Commonwealth v. Corey, 493 Mass. 674, 684 (2024).
At trial, the Commonwealth introduced (1) the victim's
testimony that the defendant strangled her; (2) medical records
made by the treating physician and nurse; and (3) photographs of
the victim's neck and limbs taken at the emergency room. During
trial, the defendant's theory of the case was that the victim
fabricated the allegations against him. Through effective
cross-examination, trial counsel raised the issue of reasonable
doubt as to how the victim's injuries were caused, focusing on
various apparent inconsistencies of when the scratches were seen
on the victim's neck.
The defendant now argues that trial counsel provided
ineffective assistance by failing to consult with a medical
expert to rebut the Commonwealth's evidence of the victim's
injuries to her neck, which corroborated the victim's testimony
that the defendant grabbed her by the neck and applied pressure.
In support of his motion for a new trial, the defendant offered
the affidavit of Dr. Christian Klaucke, an emergency room
doctor, who reviewed the trial evidence and the medical
literature. In the affidavit, the defendant's expert opined
that the timing of the markings on the victim's neck were
3 inconsistent with "an alleged non-lethal strangulation event
occurring just prior to [the victim making] the 911 call."
The defendant also submitted an affidavit from trial
counsel, who stated that he considered calling a medical expert
but decided against it. Trial counsel explained that he was
reluctant to argue that the victim caused the injuries to
herself, fearing that he would alienate the jury. Instead,
trial counsel chose to focus on cross-examination of a nurse
regarding the absence of notes in the medical file about
scratches or abrasions to the victim's neck when she arrived at
the hospital and attempted to focus the jury's attention on the
existence of reasonable doubt.2
The defendant has failed to demonstrate that trial
counsel's approach was manifestly unreasonable or that he was
deprived of an otherwise available substantial ground of
defense.3 First, the victim's injuries were not so complex as to
2 We note that this strategy proved effective as the defendant was acquitted of charges of assault and battery by means of a dangerous weapon and intimidation of a witness.
3 The defendant also argues that the motion judge abused his discretion by denying the defendant's request for an evidentiary hearing on the motion for new trial. It was not an abuse of discretion for the motion judge to decline to conduct an evidentiary hearing where, as here, the motion was thoroughly briefed and, for the reasons discussed herein, the motion and affidavits did not make an adequate showing that would raise a substantial issue. See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See also Commonwealth v.
4 render trial counsel's failure to call an expert medical witness
manifestly unreasonable. Cf. Commonwealth v. Baran, 74 Mass.
App. Ct. 256, 277-278 (2009) (ineffective assistance of counsel
not to hire expert where prosecutor called three physicians and
child psychotherapist). Here, the defendant's expert noted that
"[a] fair-skinned individual . . . can actually demonstrate the
rapid timing of an abrasion's appearance on themselves by simply
scratching their own forearm with a fingernail." The expert
also acknowledged that a review of the medical literature
suggests that up to forty percent of non-fatal strangulation
injuries have no external signs. Therefore, the absence or
presence of abrasions and scratches is not dispositive of
whether the victim was strangled.
Second, there is no requirement that trial counsel present
expert medical evidence to support an argument, "especially
where other evidence is presented to support it." Commonwealth
v. Hensley, 454 Mass. 721, 736 (2009). Through cross-
examination of the witnesses and admission of the victim's
medical records, trial counsel effectively raised the issue as
to whether the victim's neck injuries occurred before or after
the police arrived. Trial counsel underscored this argument in
Goodreau, 442 Mass. 341, 348-349 (2004) (judge may exercise discretion in declining to hold evidentiary hearing where "theory of the motion, as presented by the papers, is not credible or not persuasive").
5 his closing statement, vigorously arguing that the victim's
testimony was not credible and that the jury should credit the
testimony of several other witnesses who did not observe
scratches or injuries to the victim's neck.
Further, the defendant has not shown that an expert opinion
such as that of Dr. Klaucke would have added materially to the
defendant's case. Expert opinion testimony such as
Dr. Klaucke's on whether the injuries to the victim's neck were
self-inflicted would not have materially added to the
defendant's case and in fact may have even weakened it. In his
affidavit, Dr. Klaucke opined that the victim's injuries were
inconsistent with having been caused by the victim through
defending herself against an attack by the defendant. At best,
this opinion was immaterial as there was no testimony or theory
presented to the jury that the victim's injuries were caused by
the victim when she was defending herself.
As far as the timing of the scratches to the victim's neck,
which would support the defense theory that the injuries were
not caused by the defendant, Dr. Klaucke's testimony did little,
if anything, to assist the defense. Dr. Klaucke acknowledged
that "there are no robust studies measuring the timing of
abrasion appearance in the acute phase (seconds to minutes)
after injury to the skin." Further, Dr. Klauke's expert opinion
about when the victim sustained neck injuries was based solely
6 on his accepting the testimony of one witness and disregarding
both the victim's testimony and that of a police officer who
arrived on the scene.
Finally, we note that the charge of strangulation did not
solely rest on the scratches to the victim's neck. The victim
testified that the defendant squeezed her neck and, in so doing,
made it difficult for her to breathe and to speak. Based upon
the above, the failure to call a medical expert was not
manifestly unreasonable and, accordingly, it was not an abuse of
discretion for the motion judge to deny the defendant's motion
for a new trial.
2. Prior bad acts. At trial, the victim was allowed to
testify that soon after she married the defendant, the nature of
her relationship with him changed. She testified that after she
moved from Iran to the United States, the defendant threatened
to burn her passport, told her that "Mr. Trump is not good with
Iranian[s]," and told her that the police were racist and killed
Iranians. She also testified that the defendant had kicked and
punched her in the past to the point of bruising.
The defendant claims that the judge abused her discretion
because the probative value of this evidence was outweighed by
the risk of unfair prejudice. While evidence of prior bad acts
is not admissible to show a defendant's bad character or
propensity to commit a crime, it may be admissible for another
7 purpose. In the context of domestic violence, it may be
admissible to prove the existence of a hostile relationship
between the defendant and the victim. See Commonwealth v.
Oberle, 476 Mass. 539, 550 (2017). The evidence of the
defendant's prior bad acts, which was limited to several months
before the crime, was relevant to provide the jury with a
complete picture of the incident and the nature of the
relationship between the parties. Moreover, the judge
instructed the jury that they were to consider the testimony
only as evidence of the victim's perception of the relationship
and that they could not consider it for propensity purposes or
as evidence of character, bad behavior, or criminal conduct.
Finally, while we agree with the defendant that the trial
judge deviated from the model jury instruction, her limiting
instructions for the prior bad act evidence was nevertheless
proper and effectively minimized any potential prejudice. To
the extent that the instructions strayed from the model jury
instructions by allowing the victim's testimony about the
defendant's prior bad acts only for the victim's "perception" of
the nature of their relationship, the defendant was not harmed
but rather was the beneficiary of that limitation.
3. Admission of victim's call to 911. The Commonwealth
moved in limine for the admission of the victim's recorded
statements in her call to 911. The judge denied the motion
8 without prejudice, ruling that the 911 call did not qualify as
an excited utterance. At trial, the Commonwealth once again
moved to introduce the 911 call, this time not for the truth of
the matter, but rather to establish that the victim had in fact
called 911. The defendant objected. The judge allowed the
admission of the 911 recording, but before the audio recording
was played to the jury, provided the jury with a limiting
instruction. On appeal, the defendant argues that the judge
erred in the admission of the 911 call and that the judge's
improper limiting instruction compounded this error.
Assuming without deciding that the admission of the 911
call was in error, the defendant suffered no prejudice as the
911 call did not inculpate the defendant. The brief audio
recording played to the jury consisted of the victim providing
her address, telling the 911 operator that she could not speak
English and that she needed help. These statements were
cumulative of the trial testimony, as both the victim and the
responding officers testified without objection about the fact
that 911 was called.
Although he did not object at trial, the defendant now
claims that judge's limiting instruction allowed the jury to
consider the recorded statements for the truth of the matter
asserted. When read as a whole, the judge's instruction
correctly conveyed to the jury that the evidence "is only being
9 admitted to establish that . . . she did make a call to the
police department. That's the purpose for which this is being
admitted." Given the nature of the statements in the 911
recording, even if the jury improperly considered her statements
for the truth of the matter asserted, there was no prejudice to
the defendant. It bears repeating that her statements did not
inculpate him: she said she needed help, provided her address,
and explained that she did not speak English.
4. Admission of testimony of victim's physical gestures.
At trial, a police officer testified that when he arrived at the
scene, the victim pointed to the defendant and made a gesture
with her hands around her neck. The defendant did not object to
this testimony, so we review for a substantial risk of a
miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 17
(1999).
We find no substantial risk of a miscarriage of justice, as
the testimony that the police officer saw the victim, who did
not speak English, gesturing with her hands to her neck was
cumulative of the victim's testimony at trial. The properly
admitted trial testimony of the victim was that the defendant
placed both of his hands around her neck and squeezed. The
Commonwealth also adduced testimony from the next-door neighbor,
who was present when the police arrived, that when she first saw
the victim, she repeatedly told her "Behnam choke." In
10 addition, the police officer testified that after seeing the
victim gesturing with her hands, the defendant was immediately
placed under arrest. The defendant seized upon this evidence,
forcefully arguing to the jury that the police rushed to
judgment and failed to properly investigate the victim's
allegations. This evidence also supported the defendant's
successful request for a Bowden instruction. See Commonwealth
v. Bowden, 379 Mass. 472, 485-486 (1980). There was no harm to
the defendant, where, as here, the evidence was cumulative and
more important to the defense than to the Commonwealth. See
Commonwealth v. Nardi, 452 Mass. 379, 395–396 (2008)
(erroneously admitted testimony was equally, if not more,
important to defense and therefore did not create substantial
likelihood of miscarriage of justice). See also Commonwealth v.
McCoy, 456 Mass. 838, 851 (2010).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Ditkoff, Hand & Walsh, JJ.4),
Clerk
Entered: May 27, 2025.
4 The panelists are listed in order of seniority.