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-477
COMMONWEALTH
vs.
DAQUON MACK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial on a five-count complaint, the defendant
was convicted of violating an abuse prevention order (209A
violation), G. L. c. 209A, § 7 (count one); committing an
assault and battery in violation of an abuse prevention order
(AB 209A), G. L. c. 265, § 13A (b) (iii) (count five); and
threatening to commit a crime, G. L. c. 275, § 2 (count two).
The jury acquitted the defendant of strangulation or
suffocation, G. L. c. 265, § 15D, and reckless endangerment of a
child, G. L. c. 265, § 13L. On appeal, the defendant raises two
issues. First, he argues that the evidence was insufficient to
find him guilty of the 209A violation, as the Commonwealth never
introduced a certified copy of the abuse prevention order in evidence. Second, he argues that his trial counsel was
ineffective for failing to move to strike undisclosed statements
of the defendant and failing to impeach the victim on a prior
inconsistent statement. Because we agree that the evidence was
insufficient to establish the terms of the abuse prevention
order, we reverse the judgment on count one. Because we also
agree that there was sufficient evidence to support a conviction
of assault and battery, G. L. c. 265, § 13A (a), as a lesser-
included offense of AB 209A, we vacate the judgment on count
five and remand that count for entry of a new judgment and
resentencing. In all other respects, we affirm.
Background. 1. The abuse prevention order. On October 4,
2020, the victim obtained a New York abuse prevention order
against the defendant following a domestic incident. The order,
a "no contact" one, was set to expire on October 4, 2021. At
some point between October 2020 and October 2021, the victim
called authorities in New York and asked them to lift the order.
The authorities told the victim that she had no control over the
order and that the matter was out of her hands. At some point,
the order was extended. There was no evidence as to what the
extended order's terms were, or for how long it was extended.
2. The assault and the threat. On February 12, 2022, the
victim drove the defendant and their young child to a pharmacy.
During the drive, the defendant told the victim that "we will
2 all go down in flames." He screamed at the victim such that she
could feel spit landing on her face. As the victim attempted to
park her car at the pharmacy, the defendant grabbed the victim's
neck with both hands and pulled her head downward. The victim
slammed on the brakes and stopped the car until the defendant
let go. Once he let go, she parked; the defendant got out of
the car; and the victim sped away.
The victim drove to a police station to report the crimes.
At the station, the investigating officer searched a nationwide
database and found the victim's New York abuse prevention order
against the defendant. The investigating officer asked the
victim whether she knew she had an active restraining order
against the defendant, and she answered yes. The issuing police
department in New York sent the investigating officer an
electronic copy of the restraining order, which he read. He
testified that the order was active and that "all the parameters
were enforceable." After his arrest, the defendant stated that
"[the victim] disregards [the abuse prevention order] herself.
. . . [S]he holds that over my head all the time."
3. The trial. Before trial, the prosecutor disclosed to
the defendant, via the criminal complaint and police report,
that the defendant had told the victim he would "light[] her car
up," which the victim understood to mean lighting her car on
fire. The police report also reflected that the victim "said
3 that [the defendant] also had threatened to kill her and set her
on fire." The judge granted the defendant's motions in limine
to exclude evidence of prior bad acts and to exclude undisclosed
evidence. At trial, the victim testified to the following:
A.: "[The defendant] did say, 'Nobody's gonna get out of the house tonight when we get home.' He's said things like that in the past, but in this -- so I know what it means. And this specific night he says, 'When we get back there, nobody's gonna get out of the house. Nobody's leaving the apartment tonight.'"
Q: "Okay."
A.: "Things like, 'We will burn -- we will burn at the flames of glory is something he always says.' He definitely said that that night, like he would set the house on fire, and that nobody would leave."
Trial counsel objected.
At sidebar, trial counsel told the judge, "I have not heard
any of this." The judge agreed, telling the prosecutor that
"we're dealing with potentially a lot of information that is
coming out that you don't know, and he doesn't right? So at
this point, we have to limit what she's going to be saying."
Trial counsel requested a corrective instruction. The judge
offered trial counsel the opportunity to draft one but cautioned
that "sometimes it backfires because now I'm underscoring it,"
to which trial counsel responded affirmatively.
After sidebar, the prosecutor resumed her direct
examination of the victim:
4 Q.: "[D]id the defendant ever say anything to you about lighting your car up?"
A.: "Yes. He's also poured gasoline on my car."
Q.: "So that evening, did he say that he was going to light your car up?"
A: "No, not that evening. No. He just mentioned that we will all go down in flames."
Trial counsel did not object to this testimony.
Discussion. 1. Sufficiency of the evidence. When
reviewing a sufficiency claim, we ask whether "after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (citation omitted).
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The
defendant moved for required findings of not guilty on all
counts except the 209A violation. Because the issue of
sufficiency was not preserved as to the 209A violation, we
review for a substantial risk of a miscarriage of justice.
Commonwealth v. Melton, 436 Mass. 291, 294 n.2 (2002). We note
that convictions "based on legally insufficient evidence are
inherently serious enough to create a substantial risk of a
miscarriage of justice." Commonwealth v. McGovern, 397 Mass.
863, 867-868 (1986).
In order to prove a 209A violation, "the Commonwealth must
demonstrate that '(1) a valid [abuse prevention] order was
5 entered by a judge and was in effect on the date of the alleged
violation; (2) the defendant violated the order; and (3) the
defendant had knowledge of the order." Commonwealth v.
Dufresne, 489 Mass. 195, 200 (2022), quoting Commonwealth v.
Kulesa, 455 Mass. 447, 452 (2009). The Commonwealth must
introduce evidence of the terms of the order to prove the second
element, namely that the defendant violated the order. See
Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 109 (2014)
("particular elements of the order -- including the duration of
the order, the conditions that were violated, and the
defendant's knowledge of those conditions -- must be
established"). Although the "standard method" of proving the
terms of a restraining order is to offer a copy of the order in
evidence, Commonwealth v. Marrero, 85 Mass. App. Ct. 911, 912
n.2 (2014), other evidence that proves the terms of the order
may suffice.
Here, as to the charge of violation of 209A, the jury were
instructed they must find,
"First, that a court had issued an order pursuant to Chapter 209A of our general laws which ordered the defendant to stay away from [the victim]. Second, that such order was in effect on the date when its violation allegedly occurred. Third, that the defendant violated the order by failing to stay away from [the victim]. Fourth, that the defendant knew that the pertinent term of the order was in effect either by having received a copy of the order or by having learned the pertinent terms of the order in some other way."
6 In this case, the jury were instructed that the elements
they had to find in order to convict the defendant of AB 209A
included
"that a court had issued an order pursuant to Chapter 209A of our general laws against the defendant ordering him to stay away from [the victim]"; "that the order was in effect at the time of the alleged assault battery [sic]; and . . . that the defendant knew that the pertinent terms of the order were in effect."
We conclude that the Commonwealth did not adduce sufficient
evidence to establish the terms of the restraining order as of
February 2022, and thus whether it ordered the defendant to
"stay away" from the victim. Without knowing the terms of the
order, a rational jury could not conclude beyond a reasonable
doubt that the defendant violated the order -- a necessary
element of the crime. Although the victim testified that the
original one-year restraining order was a no contact order,
there was no evidence of the order's contents after it was
extended. The investigating officer's testimony that the order
was "active" and that "all the parameters were enforceable"
established that the order existed; however, he did not explain
what those parameters were. Nor was there any evidence that
this was, at any time, a "stay away" order. 1 Indeed, the words
"stay away" appear nowhere in the evidence. A rational fact
1 The instruction saying "stay away" was requested by the prosecutor and ageed to by defense counsel.
7 finder could not infer the terms of the extended order -– or
that it was a stay away order -– absent speculation. See
Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.
215 (2007) and 460 Mass. 12 (2011) ("A conviction may not rest
on the piling of inference upon inference or on conjecture and
speculation").
The Commonwealth argues that the defendant's postarrest
statements proved that the defendant knew the order was in
effect when he assaulted the victim. The defendant acknowledged
that "he was aware that the order -- the restraining order was
in existence," because he felt that "she holds [the restraining
order] over my head all the time." These statements show that
the defendant was aware of the existence of an active
restraining order, but not what it prohibited. Compare
Commonwealth v. Melton, 77 Mass. App. Ct. 552, 556 (2010)
(victim's statement to defendant -- "[w]hat are you doing
calling me; there's a restraining order" -- sufficient to show
defendant's knowledge of order that prohibited calling). The
jury lacked a critical piece of information; namely, what the
terms of the order were. Cf. Commonwealth v. Kurko, 95 Mass.
App. Ct. 719, 722 (2019) (reversing conviction of violating
harassment prevention order where jury had no evidence of
order's terms). Because the terms of the abuse prevention order
were necessary to prove the 209A violation and it must have been
8 a stay away order for the jury to convict on that charge in this
case, we must reverse the judgment on count one.
The judgment on count five need not be reversed, however,
because we agree with the Commonwealth that there was sufficient
evidence of the lesser-included offense of assault and battery,
G. L. c. 265, § 13A (a). The AB 209A charge contained all the
elements of an assault and battery charge. See Instruction
6.140 of the Criminal Model Jury Instructions for Use in the
District Court (2019) (defining elements of assault and battery,
G. L. c. 265, § 13A); Instruction 6.180 of the Criminal Model
Jury Instructions for Use in the District Court (2019) (defining
elements of AB 209A). See also Commonwealth v. Torres, 468
Mass. 286, 289 (2014) ("The elements of a lesser included
offense are necessarily a subset of the elements of the greater
offense"). By convicting the defendant of AB 209A, the jury
necessarily found all the elements of assault and battery beyond
a reasonable doubt. Accordingly, we vacate the defendant's
conviction of AB 209A and remand count five for entry of a new
judgment and resentencing for assault and battery, G. L. c. 265,
§ 13A (a). See Commonwealth v. Waterman, 98 Mass. App. Ct. 651,
654 (2020), quoting Commonwealth v. Sudler, 94 Mass. App. Ct.
150, 156 (2018) ("When there is insufficient evidence to support
a conviction, but there is sufficient evidence of a lesser
included offense of the crime of conviction, we vacate the
9 conviction and 'remand for entry of a conviction of the lesser
included offense and for resentencing'").
2. Ineffective assistance of counsel. The defendant
argues that his conviction of count two, threatening to commit a
crime, must be reversed because trial counsel was ineffective
for failing to object to and move to strike the victim's
testimony concerning the threats. Since the defendant raises
his ineffective assistance claim for the first time on appeal
and did not move for a new trial below, "we will reverse the
defendant's conviction[] only if the ineffectiveness 'appears
indisputably on the trial record.'" Commonwealth v. Medeiros,
456 Mass. 52, 61 (2010), quoting Commonwealth v. Zinser, 446
Mass. 807, 811 (2006).
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). The burden of proving an
ineffective assistance claim is on the defendant. Commonwealth
v. Montez, 450 Mass. 736, 755 (2008).
10 When the ineffective assistance claim is "based on a
tactical or strategic decision, the test is whether the decision
was 'manifestly unreasonable' when made." 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, 186-187 (2005).
a. The victim's initial testimony. The victim initially
testified that the defendant had told her, "[n]obody's leaving
the apartment tonight" and that "we will burn at the flames of
glory." Trial counsel objected on the ground that the
Commonwealth had not disclosed these statements prior to trial.
The judge warned trial counsel that, regarding a curative
instruction, "[s]ometimes it backfires because now I'm
underscoring it," to which counsel replied, "Yeah."
Trial counsel's decision not to move to strike the victim's
initial testimony bore the hallmarks of a strategic or tactical
decision. In fact, during the sidebar, he acknowledged the
strategic risk of striking the statements. The question is
whether the strategy was manifestly unreasonable. We cannot say
that it was. Trial counsel could have reasonably concluded that
striking the testimony and underscoring it with a curative
11 instruction would have done more harm than good. See
Commonwealth v. Fredette, 396 Mass. 455, 466 (1985) (failure to
object and request curative instruction not ineffective where
"defense counsel could reasonably have concluded that objection
or further pursuit of the matter in the hearing of the jury
would only add emphasis and importance to the matter"). At the
time the objection was made, the judge and the parties all
expected that, when led by the prosecutor, the witness would
subsequently testify to the threat with respect to the car.
Given that and the minor difference involved in threating to
burn the victim alive in a house instead of a car, it certainly
might make sense not to have the judge repeat either version of
the threat while striking it. Trial counsel's decision with
respect to striking the victim's initial testimony was not
manifestly unreasonable.
b. The victim's subsequent testimony. The defendant
argues that defense counsel should have objected to the victim's
subsequent testimony on the threat -- "He just mentioned that we
will all go down in flames." He argues that if trial counsel
had objected and moved to strike, the judge would have sustained
the objection and struck the statement, leaving no evidence of
threats (had counsel also asked to have the earlier testimony
struck) and mandating entry of a required finding of not guilty.
See Commonwealth v. Sepheus, 468 Mass. 160, 172 (2014) (trial
12 counsel was ineffective for failing to move to strike
nonresponsive answer on cross-examination that supplied
Commonwealth with proof of essential element of crime).
A claim for ineffective assistance of counsel based on a
failure to object to an error at trial is evaluated "essentially
the same as the substantial risk standard we apply to
unpreserved errors." Commonwealth v. LaChance, 469 Mass. 854,
858 (2014), cert. denied, 577 U.S. 922 (2015). An ineffective
assistance claim made solely on the trial record, like this one,
is the "weakest form" of an ineffective assistance claim,
because it is "bereft of any explanation by trial counsel for
his action and suggestive of strategy contrived by a defendant
viewing the case with hindsight" (citation omitted).
Commonwealth v. Norris, 462 Mass. 131, 142 (2012).
The defendant's argument flounders at the outset, because
there was no error in allowing in the testimony. The judge
would not properly have sustained the objection, and the
defendant would not have been entitled to a required finding of
not guilty.
The Massachusetts Rules of Criminal Procedure require that
"[t]he prosecution shall disclose to the defense . . . [a]ny
written or recorded statements, and the substance of any oral
statements, made by the defendant" (emphasis added). Mass. R.
Crim. P. 14 (a) (1) (A), (a) (1) (A) (i), as amended, 444 Mass.
13 1501 (2004). see Commonwealth v. Lewinski, 367 Mass. 889, 902
(1975). The prosecutor disclosed the defendant's statement, as
recounted in the police report, that he would "light[] her car
up." The victim testified that she understood this to mean that
the defendant would light her car on fire, given that he had
previously poured gasoline over her car. The police report
further recounted that the defendant "also had threatened to
kill her and set her on fire." Although the previously-
disclosed statements in the police report did not match verbatim
the victim's testimony at trial ("we will all go down in
flames"), the disclosure captured the substance of the threat.
See Black's Law Dictionary 1728 (11th ed. 2019) (defining
"substance" as "[t]he essence of something; the essential
quality of something, as opposed to its mere form"). Since the
prosecutor disclosed the substance of the defendant's oral
statements, an objection on that basis would have been
overruled. See Commonwealth v. Collins, 470 Mass. 255, 261
(2014) (failure to make futile objection is not ineffective).
Trial counsel made a reasonable decision not to object. See
Commonwealth v. Johnson, 435 Mass. 113, 131 n.24 (2001), S.C.,
486 Mass. 51 (2020) ("[t]he fact that an attempted defense does
not work out as well as planned or hoped does not transform the
strategy into a manifestly unreasonable one"). Since the
defendant fails to illustrate "serious incompetency,
14 inefficiency, or inattention" of his trial counsel -- the first
prong of the Saferian test, 366 Mass. at 96 -- trial counsel was
not ineffective.
c. Trial counsel's decision not to impeach the victim.
The defendant contends that trial counsel was ineffective for
not impeaching the victim based on the discrepancy between her
statements to police and her testimony at trial. To underscore
this argument, the defendant points to trial counsel's effective
cross-examination of the witness on other issues, which he
argues led the jury to acquit the defendant of strangulation and
recklessly endangering a child. Cf. Commonwealth v. Fisher, 433
Mass. 340, 357 (2001) (failure to impeach witness with prior
inconsistent statements not ineffective where witness was
impeached on other grounds).
Since impeachment of a witness is "fraught with a host of
strategic considerations," an ineffective assistance claim based
on failure to impeach is "difficult to establish." Fisher, 433
Mass. at 357. "Generally, failure to impeach a witness does not
amount to ineffective assistance of counsel." Id. As discussed
above, trial counsel's decision not to move to strike the
victim's initial testimony sounded in strategy. The judge
suggested, which trial counsel acknowledged, that moving to
strike the testimony would call the jury's attention to the
testimony. So too with cross-examination. Trial counsel could
15 have reasonably concluded that calling attention to the
defendant's threat through cross-examination of the victim would
backfire. This is especially true given that the discrepancy
between the two recounted threats was minute and trial counsel
could have reasonably concluded that impeaching the witness on
the discrepancy would be futile. The defendant fails to meet
his burden to satisfy the first prong of the Saferian test.
Conclusion. Accordingly, on count one of the complaint
alleging the 209A violation, we reverse the judgment of
conviction, set aside the verdict, and order entry of judgment
for the defendant. On count five alleging AB 209A, the judgment
is vacated, the verdict is set aside, and that count is remanded
for entry of a new judgment and resentencing for assault and
battery, G. L. c. 265, § 13A (a). The judgment on count two is
affirmed.
So ordered.
By the Court (Rubin, Desmond & Singh, JJ. 2),
Clerk
Entered: December 2, 2024.
2 The panelists are listed in order of seniority.