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
25-P-253
COMMONWEALTH
vs.
EDWARD W. CEFALO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant, Edward W. Cefalo, of
violating a G. L. c. 209A abuse prevention order. On appeal,
the defendant argues that the trial judge's failure to, sua
sponte, instruct the jury on the affirmative defense of
entrapment by estoppel created a substantial risk of a
miscarriage of justice. The defendant also contends that the
Massachusetts entrapment-by-estoppel jurisprudence should be
clarified by adopting the United States Court of Appeals for the
First Circuit's four-element test. In addition, the defendant
argues that (1) two witnesses improperly testified to their
belief that the defendant violated the abuse prevention order,
and (2) the judge abused his discretion in not permitting the defendant to either refresh the memory of or to impeach the
testifying victim by playing the audio recording of a telephone
call between the victim and a police officer. We affirm.
Background. We summarize the evidence presented at trial.
On May 22, 2023, the victim obtained a restraining order against
the defendant requiring, inter alia, that he stay at least one
hundred yards from the victim and her residence until May 20,
2024. The defendant and victim have a child, Alex.1 Alex had a
restraining order against the victim.
On June 14, 2023, Alex entered the Peabody police station
and spoke with Officer Thomas Southern about receiving a police
escort to retrieve some personal belongings from the victim's
home. Officer Southern called the victim to arrange for Alex to
pick up some belongings from the house in the presence of the
police. The victim responded that Alex could come to her house,
but she stated that she did not want the defendant there.
Officer Southern testified that he advised the victim that the
defendant was not with the child. At no point did Officer
Southern see the defendant. Nor had Alex informed Officer
Southern that the defendant was present at the station and would
be driving Alex to the victim's residence.
1 A pseudonym.
2 Subsequently, Officer Southern instructed Alex to meet
Officer William Thong, who would be escorting him to the
victim's house, in a local restaurant's parking lot. Officer
Southern relayed, either to dispatch or to Officer Thong
directly, that Thong would be "meeting a party at [a restaurant]
to preserve the peace while [Alex] gathers some clothes
quickly." In the parking lot, the defendant identified himself
to Officer Thong, and told him that his child, Alex, needed to
gather belongings from the victim's home. The defendant did not
volunteer that the victim had an active restraining order that
prohibited the defendant from being within one hundred yards of
her or her residence. Officer Thong instructed the defendant to
"follow [him]," which the defendant subsequently did. At that
time, Officer Thong did not know the victim had a restraining
order against the defendant. The defendant parked in the
victim's driveway behind Officer Thong's vehicle, approximately
fifty feet from the house. The victim saw the defendant parked
in front of her driveway and informed Officer Thong that she had
an active restraining order against the defendant prohibiting
him from being near her residence. Officer Thong confirmed the
existence and active status of the restraining order.
Additional police officers arrived at the house, and the
3 defendant was arrested for violating the restraining order by
being within one hundred yards of the victim's residence.
Discussion. 1. Entrapment by estoppel. The defendant
argues that the trial judge should have, sua sponte, instructed
the jury on the affirmative defense of entrapment by estoppel.
Arguing that the controlling cases are insufficiently clear to
provide guidance to litigants, the defendant further urges this
Court to adopt the four-element test developed by the First
Circuit. We are not convinced the circumstances here supported
an entrapment by estoppel instruction.
"Once a defendant raises [a] defense to a charge and the
defense is supported by sufficient evidence, the defendant is
entitled to have a jury instruction on the defense, and the
Commonwealth has the burden of disproving the defense."
Commonwealth v. Cabral, 443 Mass. 171, 179–180 (2005). The
defendant neither raised the applicability of the entrapment by
estoppel defense nor requested a jury instruction for the
defense in the trial court. We thus review for a substantial
risk of a miscarriage of justice. See Commonwealth v. Renderos,
440 Mass. 422, 425 (2003).
"Entrapment by estoppel has been held to apply when an
official assures a defendant that certain conduct is legal, and
the defendant reasonably relies on that advice and continues or
4 initiates the conduct." Commonwealth v. Twitchell, 416 Mass.
114, 128 (1993), quoting United States v. Smith, 940 F.2d 710,
714 (1st Cir. 1991). "The defense rests on principles of
fairness grounded in Federal criminal cases in the due process
clause of the Fifth Amendment," and "generally involves factual
determinations based on the totality of the circumstances"
(citations omitted). Twitchell, supra.
In Twitchell, 416 Mass. at 129, the Supreme Judicial Court
held that the defendants were entitled to present an entrapment
by estoppel defense after concluding that the reasonableness of
their reliance on an official opinion was a question of fact for
the jury. There, the defendants did not seek medical care for
their sick child, relying instead on spiritual treatment in line
with their Christian Science beliefs. Id. at 116. The child
died from his illness, and the parents were ultimately convicted
of involuntary manslaughter in connection with the death of
their son. Id. at 115.
For the first time on appeal, defendants argued, in
relevant part, that they were entitled to present the entrapment
by estoppel defense because a church publication on the legal
rights and obligations of Christian Scientists in Massachusetts
that quoted, without citation, a portion of the Attorney
General's opinion on the spiritual treatment provision of G. L.
5 c. 273, § 1, misled them to believe that they were protected
against criminal prosecution by the spiritual treatment
provision of § 1. Twitchell, 416 Mass. at 125-127. At trial,
the evidence demonstrated that defendants were "seeking to
practice their religion within the limits of what they were
advised that the law permitted." Id. at 129. Ultimately,
"[t]he issue was one that, if presented to them, could well have
changed the jury's verdicts." Id. at 129.
Under Twitchell, to be entitled to an entrapment by
estoppel defense, the defendant must establish that (1) "an
official assure[d] [him] that certain conduct [was] legal" and
(2) he "reasonably relie[d] on that advice and continue[d] or
initiate[d] the conduct." 416 Mass. at 128. Here, the
defendant contends that Officer Thong's direction that he
"follow [him]" constituted an assurance that he could drive his
child to the victim's home without violating the abuse
prevention order. We disagree. The first element of the
entrapment by estoppel defense recognized in Twitchell hinges on
whether the official made "an official statement of the law" on
which the defendant reasonably relied. Twitchell, supra at 129.
The defendant must reasonably rely "on the representations of an
authorized government official as to the legality of his
conduct." Smith, 940 F.2d at 714.
6 Here, Officer Thong's instruction that defendant "follow
[him]" to the victim's home did not rise to an official
statement of the law. Officer Thong did not have knowledge of
the victim's abuse prevention order against the defendant at
that point. Neither Officer Southern nor the defendant informed
Officer Thong about the order. Without knowledge of the order,
Officer Thong's statement that defendant "follow [him]" did not
amount to an assurance that the defendant could legally drive to
the victim's house without being in violation of his abuse
prevention order. See United States v. Lynch, 903 F.3d 1061,
1076 (9th Cir. 2018) (defendant "never received the sort of
clear sanction that entrapment by estoppel requires" where
official never told defendant proposed activities were legal).
Had Officer Thong told the defendant, "Follow me and you will
not be in violation," we might have a different case. However,
those are not the facts before us.
In addition, based on the evidence presented at trial, no
rational jury could have found that the defendant's reliance (if
any) on Officer Thong's statement was reasonable. Alex, not the
defendant, entered the Peabody police station and asked Officer
Southern for a police escort to the victim's home because of his
own restraining order on the victim. The defendant did not
enter the station, and Alex did not inform Officer Southern that
7 his father would be the one driving him to the victim's home.
Officer Thong learned either directly from Officer Southern or
from dispatch only that he was to meet the child "to preserve
the peace" while he grabbed items from his mother's home.
At the meeting place, the defendant identified himself and
explained that his child Alex needed to pick up some items from
his mother's home. Although the defendant did not try to hide
his identity from Officer Thong, at no point did he alert
Officer Thong to the existence of his active abuse prevention
order. There was no evidence that the defendant relied on
Thong's statement as an explicit assurance that that defendant's
conduct in following Thong would not place him in violation of
the victim's order. It was not reasonable for the defendant to
assume that Officer Thong, after hearing the defendant's name,
would have checked if he had any active abuse prevention orders.
Nor was it reasonable for the defendant to assume that Officer
Southern's knowledge of the abuse prevention order was conveyed
to Officer Thong when neither the defendant nor Alex alerted
Officer Southern that the defendant would be accompanying Alex
to the victim's house. See Smith, 940 F.2d at 715. See also
United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987)
("to establish the defense of official misleading, the defendant
must establish that his reliance on the misleading information
8 was reasonable," meaning "that a person sincerely desirous of
obeying the law would have accepted the information as true, and
would not have been put on notice to make further inquiries"
[quotation and citation omitted]).
The defendant argues that entrapment by estoppel is not a
well-developed affirmative defense in Massachusetts. See
Twitchell, 416 Mass. at 128. Consequently, the defendant asks
this court to clarify the defense of entrapment by estoppel by
adopting the First Circuit's four-element test: (1) the
defendant "was advised by a government official that the act was
legal," (2) the defendant "relied on that advice," (3) the
defendant's reliance was reasonable, and (4) "given that
reliance, prosecution of the defendant would be unfair."2 Smith,
940 F.2d at 715.
Even if we were to assume, arguendo, that the First Circuit
test applied, the defendant cannot establish that he was
entitled to an entrapment by estoppel instruction. We have
already addressed the first three elements of the First Circuit
test pursuant to our analysis under Twitchell, so we will only
briefly touch on the fourth. Entrapment by estoppel "rests upon
2 We note that in Twitchell, the Supreme Judicial Court cited Smith but did not adopt the First Circuit's test for entrapment by estoppel. See Twitchell, 416 Mass. at 128, citing Smith, 940 F.2d at 714-715.
9 principles of fairness," and we assess whether the prosecution
violated "fundamental notions of fairness" based on the totality
of the circumstances. Smith, supra at 714. Evaluating the
evidence in light of this standard, we conclude that Officer
Thong's purported assurance would not support a defense of
entrapment by estoppel. See id. at 715. As discussed, supra,
Officer Thong's statement that the defendant should "follow
[him]" did not pertain to the legality of his conduct. It is
not contested that the defendant knew he had an active abuse
prevention order that prohibited him from being within one
hundred yards of the victim's residence. Despite that
knowledge, the defendant did not inform Officer Thong or inquire
whether he was aware of the order before proceeding to the home.
The defendant could have chosen to either inform Officer Thong
of the order, and seek permission to be within one hundred yards
of the victim's residence in the company of the police, or he
could have remained in compliance with the order by parking his
car more than one hundred yards from the residence and waited
for his child to pick up his belongings. Although we do not
suggest that the defendant had an obligation to inform the
police of his active order, the defendant's failure to give
Officer Thong of this fact supports our conclusion that the
prosecution of defendant was not unfair.
10 2. Ultimate-issue testimony. The defendant argues for the
first time on appeal that he is entitled to reversal of his
conviction because Officer Thong offered improper opinion
testimony on the ultimate issue. We agree that Officer Thong
did so. But we conclude that the error did not create a
substantial risk of a miscarriage of justice.
It is fundamental that a witness, including a police
witness, may not give an opinion regarding a defendant's
culpability. See Commonwealth v. Hamilton, 459 Mass. 422, 439
(2011); Commonwealth v. Lodge, 431 Mass. 461, 467 (2000). While
there is "no rule in Massachusetts prohibiting an opinion that
touches on an ultimate issue," Commonwealth v. Canty, 466 Mass.
535, 543 (2013); Mass. G. Evid. § 704 (2023) ("An opinion is not
objectionable just because it embraces an ultimate issue"), such
testimony cannot directly speak to, or express a point of view
on, the issue of guilt or innocence. See Commonwealth v.
Tanner, 45 Mass. App. Ct. 576, 579 (1998). Therefore, when "an
opinion comes close to an opinion on the ultimate issue of guilt
or innocence, the probative value of the opinion must be weighed
against the danger of unfair prejudice." Canty, supra at 543-
544. See generally Mass. G. Evid. § 403, and cases cited.
First, the defendant argues that Officer Thong improperly
testified, on direct and re-direct, to his belief that the
11 defendant was in violation of the abuse prevention order.
Officer Thong testified that after learning that the victim had
an abuse prevention order against the defendant, he requested
additional officers to the scene because "it seems like it's
going to be a restrain[ing] order violation." Officer Thong and
the other officers then "determined that there was in fact a
restraining order violation" and arrested the defendant "[f]or
violation of a restraining order." We agree with the defendant
that this testimony constituted improper opinion testimony on
the defendant's culpability. While the prosecution may present
evidence to "enable[e] the jury to understand the complete
occurrence," Commonwealth v. Ward, 45 Mass. App. Ct. 901, 903
(1998), it may not do so to elicit an opinion on the ultimate
issue in the case. See Commonwealth v. Woods, 419 Mass. 366,
375 (1995).
However, the unobjected-to opinion testimony here does not
require reversal because we do not have "a serious doubt whether
the result of the trial might have been different had the error
not been made." Commonwealth v. Randolph, 438 Mass. 290, 297
(2020), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
The Commonwealth presented a strong case. The evidence
established that the victim had an active abuse prevention order
against the defendant which required the defendant to remain one
12 hundred yards away from the victim and her residence, the
defendant knew of the existence and contents of the order, and
the defendant came within one hundred yards of the victim and
her residence. This evidence, supported by the judge's
instructions that the jurors were "the sole and exclusive judges
of the facts", that the testimony of a police officer "is
entitled to no special or exclusive sanctity" and jurors "should
not believe or disbelieve them merely because they're police
officers," and that the Commonwealth must prove the defendant's
guilt beyond a reasonable doubt, sufficed to avert any
substantial risk of a miscarriage of justice. See Commonwealth
v. Gallagher, 91 Mass. App. Ct. 385, 390 (2017) (in face of
strong evidence and specific jury instructions, trooper's
erroneous testimony on ultimate issue did not cause prejudice).
The defendant also challenges as improper the victim's
testimony on cross-examination that she told Officer Thong to
arrest the defendant because he was in violation of the abuse
prevention order. Specifically, defense counsel asked the
victim, "So, you ran outside the house into the driveway to tell
Officer Thong to arrest him?," to which the victim replied, "I
told him that he's breaking the restraining order." Defense
counsel then immediately followed up by asking, "You ran outside
of your house to tell Officer Thong to arrest him? Yes or no?"
13 The victim responded, "I told him that he needs to be arrested
because he broke the restraining order." Defense counsel then
asked again, "You told Officer Thong to arrest the defendant;
right?" to which the victim responded, "Yes, I said that he
needs to be arrested because he's breaking the restraining
order." Here, the defendant opened the door to unfavorable
testimony by asking the victim on cross-examination about what
she told Officer Thong. We discern no error. Even if the
victim's testimony constituted improper opinion testimony that
exceeded an open-door justification, there was no substantial
risk of a miscarriage of justice for the same reasons discussed
above in our analysis of Officer Thong's testimony that the
defendant violated the order. See, e.g., Commonwealth v.
Saunders, 75 Mass. App. Ct. 505, 510 (2009).
3. Audio recording. The defendant contends that the trial
judge abused his discretion in not allowing defense counsel to
use audio of a radio call to refresh the victim's recollection
or, in the alternative, to impeach the credibility of the
victim.3 We disagree. "We review evidentiary rulings for an
3 We assume without deciding that the defendant sufficiently preserved this claim by filing a prospective motion indicating his intent to use the recording to refresh witness recollection or impeach witness credibility and by requesting to play the recording immediately after the victim testified, "I can't remember. . ."
14 abuse of discretion, which requires a demonstration that the
judge made a clear error of judgment in weighing the factors
relevant to the decision such that the decision falls outside
the range of reasonable alternatives" (quotation and citation
omitted). Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 476
(2017). Where the issue is preserved, we also must determine
whether the trial judge's abuse of discretion prejudiced the
defendant. See Commonwealth v. Souza, 492 Mass. 615, 626-627
(2023).
On cross-examination, the victim testified that she could
not remember if Officer Southern told her that the defendant
would not be coming to her house with the child; she testified
only that the officer informed her that the defendant was not
with the child. In response, the defendant sought to play an
audio recording of a telephone call during which the victim
asked Officer Southern if the child would be "coming with" the
defendant, to which Officer Southern replied, "No, he would be
by himself." The trial judge denied the defendant's request,
finding the victim's testimony and the purported content of the
recording essentially the same.
The defendant's argument that the judge should have
permitted him to play the recording to refresh the victim's
recollection is unconvincing. "The limits of cross-examination
15 ordinarily rest in sound judicial discretion." Commonwealth v.
Woodbine, 461 Mass. 720, 738 (2012). What exactly Officer
Southern told the victim or what the victim remembered Officer
Southern saying to her about the defendant was not relevant to
whether the defendant was in violation of the abuse protection
order. The judge properly, in his discretion, did not allow the
defendant to play the recording based on the judge's stated
understanding (which defense counsel did not challenge) that the
recording was essentially duplicative of the victim's testimony.
Similarly, the defendant's claim that the judge should have
admitted the recording as extrinsic evidence to impeach the
victim's credibility is also unavailing. "[E]xtrinsic evidence
on a collateral matter may be introduced at trial for the
purposes of impeachment only in the discretion of the judge"
(citation omitted). Commonwealth v. Farley, 443 Mass. 740, 751
(2005). The conviction did not depend on the victim's
credibility, as both Officer Thong and the defendant's own
witness placed the defendant in violation of the order by being
within one hundred yards of the victim and her residence. See
Farley, 443 Mass. at 751 (finding no abuse of discretion where
judge did not allow impeachment by extrinsic evidence on
collateral issue of witness's credibility). Whether the victim
was mistaken or lying when she testified, as proven by the audio
16 recording, was only marginally relevant at best. Accordingly,
we discern no abuse of discretion.
Regardless, the exclusion of the recording did not
prejudice the defendant considering the strength of the
Commonwealth's case. Souza, 492 Mass. at 627 ("An error is not
prejudicial if it did not influence the jury, or had but very
slight effect"). As discussed, supra, the relevancy of the
recording was marginal at best and any benefit of the recording
to the defendant was limited given that the defendant's
conviction for violating the abuse prevention order depended
neither on the exact words Officer Southern communicated to the
victim nor the credibility of the victim.
Judgment affirmed.
By the Court (Sacks, Smyth & Wood, JJ.4),
Clerk
Entered: November 26, 2025.
4 The panelists are listed in order of seniority.