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-387
COMMONWEALTH
vs.
FRANK R. LAMONDE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Frank LaMonde, was convicted of violating an abuse
prevention order (209A order), G. L. c. 209A, § 7. On appeal,
the defendant argues that his conviction should be reversed
because he was unfairly prejudiced by the admission of the
return of service of the 209A order, references in the
prosecutor's closing argument to "admissions" by the defendant,
and evidence that the defendant was arrested. We affirm.
Background. We summarize the facts as the jury could have
found them. On November 3, 2021, the victim was in the law
library of the Lowell District Court conducting legal research.
She had a valid 209A order against the defendant. The defendant subsequently also entered the law library to conduct legal
research. The victim testified that the defendant came up in
close proximity behind her and touched her shoulders with his
hands. She could feel his breath on her when he spoke. He told
her "like, 'What are you doing here? You're not supposed to be
here.'"
There was uncertainty in the evidence regarding what
statement the defendant made next and to whom it was directed.
The victim testified that the defendant looked straight at her
and told her that "he wanted to talk to [the librarian] first."
She testified that his demeanor was aggressive when he shouted,
"I asked her first."
The law librarian, who was familiar with the defendant and
the victim, came out of her office and approached the reference
desk near where the victim was sitting. She testified that the
defendant asked to speak with her outside and the victim asked
if the librarian would come over to where she was sitting. The
librarian testified that the defendant "said, 'I asked her
first,' but it could also have been, 'I asked you first.'" On
cross-examination she testified that she was not sure which it
was. She testified she was "[n]ot 100 percent [sure], no. I
think he said, 'I asked her first,' but I don't remember." The
defendant was between five to ten feet away from the victim
during this interaction. Upon the defendant's request, the
2 defendant and the librarian then went outside the law library.
The defendant asked the librarian to print out a statute for
him. She did so while he waited outside. The jury took a view
of the scene.
The complainant contacted the court officers, who responded
to the scene for a report of a 209A violation. Upon arrival,
the court officers observed the defendant sitting on a bench
outside the library. The officers spoke with the complainant,
the librarian, and the defendant. The court officer testified
that she "ended up placing [the defendant] under arrest." In
response to that testimony, defense counsel requested an
instruction that an arrest is not evidence of guilt but did not
formally object. The judge instructed the jury as requested.
The defendant did not call witnesses or testify himself.
He presented his defense through cross-examination of the
witnesses, highlighting inconsistencies in testimony by the
eyewitnesses. The defense's theory was that the contact was
incidental.
Discussion. 1. Return of service. The defendant argues
that admission of the return of service for the 209A order was
testimonial and therefore violated the confrontation clause. We
disagree.
"A properly completed and returned c. 209A return of
service is admissible under the official or public records
3 exception to the hearsay rule, and its admission at trial absent
the presence of the officer who completed it does not violate
the confrontation clause of the Sixth Amendment to the United
States Constitution." Commonwealth v. Shangkuan, 78 Mass. App.
Ct. 827, 837 (2011). The defendant argues that we must revisit
Shangkuan based on the decision in Commonwealth v. Wardsworth,
clarifying that the appropriate analysis for whether a statement
is testimonial is the "'primary purpose' test." 482 Mass. 454,
464 n.18 (2019). We disagree. In Shangkuan, this Court
determined that the admission of a 209A order does not violate
the confrontation clause because "the primary purpose for which
the return of service [of a 209A order] was created is to serve
the routine administrative functions of the court system," and
not "for the purpose of establishing or proving some fact at a
potential future criminal trial." 78 Mass. App. Ct. at 833.
The analysis in Shangkuan is therefore in accord with
Wardsworth. Accordingly, the return of service was properly
admitted.
2. Closing argument. The defendant argues that the
prosecutor's statements in closing that the defendant "admitted"
to speaking to the complainant constitute prejudicial error
because they were not grounded in the record.1 Because the
1 The defendant further argues that the statements therefore implicate the defendant's decision not to testify. See
4 defendant objected, we review for prejudicial error. "[T]he
error is nonprejudicial only if [the appellate court is] sure
that the error did not influence the jury, or had but very
slight effect." Commonwealth v. Alvarez, 480 Mass. 299, 305
(2018) (quotation omitted).
In closing, prosecutors may argue the evidence and
reasonable inferences therefrom. Commonwealth v. Kozec, 399
Mass. 514, 516 (1987). The victim had testified that the
defendant said he asked the librarian first. The prosecutor
marshaled that evidence and also argued the alternative scenario
presented by the defendant, that he was directing his comment,
by "his own admission," to the librarian. The defendant's
counsel asserted in the opening statement and closing argument
that after the defendant realized the victim was present, he
spoke to the librarian. While it might have been better phrased
had the Commonwealth referenced the admission in the defendant's
opening or closing, we discern no error and certainly no
prejudicial error. The defendant may have been surprised to
encounter the victim at the law library, but the jury properly
Commonwealth v. Cruz, 98 Mass. App. Ct. 383, 391 (2020) (remarks in prosecutor's closing argument improper where they are "reasonably susceptible of being interpreted as a comment on the defendant's failure to take the stand" [quotation omitted]).
5 could have found that he did not immediately withdraw to a
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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-387
COMMONWEALTH
vs.
FRANK R. LAMONDE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Frank LaMonde, was convicted of violating an abuse
prevention order (209A order), G. L. c. 209A, § 7. On appeal,
the defendant argues that his conviction should be reversed
because he was unfairly prejudiced by the admission of the
return of service of the 209A order, references in the
prosecutor's closing argument to "admissions" by the defendant,
and evidence that the defendant was arrested. We affirm.
Background. We summarize the facts as the jury could have
found them. On November 3, 2021, the victim was in the law
library of the Lowell District Court conducting legal research.
She had a valid 209A order against the defendant. The defendant subsequently also entered the law library to conduct legal
research. The victim testified that the defendant came up in
close proximity behind her and touched her shoulders with his
hands. She could feel his breath on her when he spoke. He told
her "like, 'What are you doing here? You're not supposed to be
here.'"
There was uncertainty in the evidence regarding what
statement the defendant made next and to whom it was directed.
The victim testified that the defendant looked straight at her
and told her that "he wanted to talk to [the librarian] first."
She testified that his demeanor was aggressive when he shouted,
"I asked her first."
The law librarian, who was familiar with the defendant and
the victim, came out of her office and approached the reference
desk near where the victim was sitting. She testified that the
defendant asked to speak with her outside and the victim asked
if the librarian would come over to where she was sitting. The
librarian testified that the defendant "said, 'I asked her
first,' but it could also have been, 'I asked you first.'" On
cross-examination she testified that she was not sure which it
was. She testified she was "[n]ot 100 percent [sure], no. I
think he said, 'I asked her first,' but I don't remember." The
defendant was between five to ten feet away from the victim
during this interaction. Upon the defendant's request, the
2 defendant and the librarian then went outside the law library.
The defendant asked the librarian to print out a statute for
him. She did so while he waited outside. The jury took a view
of the scene.
The complainant contacted the court officers, who responded
to the scene for a report of a 209A violation. Upon arrival,
the court officers observed the defendant sitting on a bench
outside the library. The officers spoke with the complainant,
the librarian, and the defendant. The court officer testified
that she "ended up placing [the defendant] under arrest." In
response to that testimony, defense counsel requested an
instruction that an arrest is not evidence of guilt but did not
formally object. The judge instructed the jury as requested.
The defendant did not call witnesses or testify himself.
He presented his defense through cross-examination of the
witnesses, highlighting inconsistencies in testimony by the
eyewitnesses. The defense's theory was that the contact was
incidental.
Discussion. 1. Return of service. The defendant argues
that admission of the return of service for the 209A order was
testimonial and therefore violated the confrontation clause. We
disagree.
"A properly completed and returned c. 209A return of
service is admissible under the official or public records
3 exception to the hearsay rule, and its admission at trial absent
the presence of the officer who completed it does not violate
the confrontation clause of the Sixth Amendment to the United
States Constitution." Commonwealth v. Shangkuan, 78 Mass. App.
Ct. 827, 837 (2011). The defendant argues that we must revisit
Shangkuan based on the decision in Commonwealth v. Wardsworth,
clarifying that the appropriate analysis for whether a statement
is testimonial is the "'primary purpose' test." 482 Mass. 454,
464 n.18 (2019). We disagree. In Shangkuan, this Court
determined that the admission of a 209A order does not violate
the confrontation clause because "the primary purpose for which
the return of service [of a 209A order] was created is to serve
the routine administrative functions of the court system," and
not "for the purpose of establishing or proving some fact at a
potential future criminal trial." 78 Mass. App. Ct. at 833.
The analysis in Shangkuan is therefore in accord with
Wardsworth. Accordingly, the return of service was properly
admitted.
2. Closing argument. The defendant argues that the
prosecutor's statements in closing that the defendant "admitted"
to speaking to the complainant constitute prejudicial error
because they were not grounded in the record.1 Because the
1 The defendant further argues that the statements therefore implicate the defendant's decision not to testify. See
4 defendant objected, we review for prejudicial error. "[T]he
error is nonprejudicial only if [the appellate court is] sure
that the error did not influence the jury, or had but very
slight effect." Commonwealth v. Alvarez, 480 Mass. 299, 305
(2018) (quotation omitted).
In closing, prosecutors may argue the evidence and
reasonable inferences therefrom. Commonwealth v. Kozec, 399
Mass. 514, 516 (1987). The victim had testified that the
defendant said he asked the librarian first. The prosecutor
marshaled that evidence and also argued the alternative scenario
presented by the defendant, that he was directing his comment,
by "his own admission," to the librarian. The defendant's
counsel asserted in the opening statement and closing argument
that after the defendant realized the victim was present, he
spoke to the librarian. While it might have been better phrased
had the Commonwealth referenced the admission in the defendant's
opening or closing, we discern no error and certainly no
prejudicial error. The defendant may have been surprised to
encounter the victim at the law library, but the jury properly
Commonwealth v. Cruz, 98 Mass. App. Ct. 383, 391 (2020) (remarks in prosecutor's closing argument improper where they are "reasonably susceptible of being interpreted as a comment on the defendant's failure to take the stand" [quotation omitted]).
5 could have found that he did not immediately withdraw to a
distance farther than the distance required by the 209A order.
3. Testimony the defendant was arrested. Finally, the
defendant argues that the admission of evidence that he was
arrested was unfairly prejudicial. The defendant did not object
to the testimony. Rather, he requested a jury instruction that
arrest is not any evidence of guilt, which was given.
Accordingly, we review for a substantial risk of a miscarriage
of justice. See Commonwealth v. Desiderio, 491 Mass. 809, 810
(2023).
Because the police officer's testimony that she "ended up
placing [the defendant] under arrest" was irrelevant and
unfairly prejudicial, we agree that it was error to admit it.
See Commonwealth v. McDonagh, 480 Mass. 131, 140 (2018)
(evidence of defendant's arrest for possession of child
pornography is prior bad act); Commonwealth v. DaSilva, 471
Mass. 71, 81 (2015) (evidence about what grand jury considers in
deciding to charge defendant irrelevant because it had no
evidentiary value and therefore should have been struck).
However, the error did not amount to a miscarriage of
justice. Upon request of counsel, the judge instructed the jury
simply but directly that arrest is not evidence of guilt. He
instructed the jury that:
6 "the fact that the [d]efendant may have been arrested in the case is not in any way evidence of the [d]efendant's guilt. You can't draw any kind of inference of guilt against [the defendant] from the mere fact that the police placed him under arrest, and I tell you that as a matter of law."
This instruction was adequate to mitigate any possible prejudice
to the defendant. See Commonwealth v. Telcinord, 94 Mass. App.
Ct. 232, 243 (2018) (jury instructions that evidence of
complaint against defendant was not evidence, defendant entitled
to presumption of innocence, countered prejudice from evidence
that defendant was arrested). See also Commonwealth v. Salazar,
481 Mass. 105, 118 (2018), quoting Commonwealth v. Hernandez,
473 Mass. 379, 392 (2015) (no prejudice where "the judge
properly instructed the jury . . . and it is well-established
that 'the [j]ury are presumed to follow instructions'").
Further, the testimony regarding the defendant's arrest was
brief and passing. See Commonwealth v. Roby, 462 Mass. 398, 409
(2012) (brevity of inadmissible testimony factor in considering
risk of miscarriage of justice); Commonwealth v. Connors, 447
Mass. 313, 320-321 (2006) (no prejudice to defendant where
evidence "contained a brief reference to" prior bad act "without
7 any accompanying detail" and was cumulative of other evidence
before jury).
Judgment affirmed.
By the Court (Green, C.J., Henry & Ditkoff, JJ.2),
Clerk
Entered: August 8, 2024.
2 The panelists are listed in order of seniority.