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-1324
COMMONWEALTH
vs.
GAMALIEL T. MADELON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Boston Municipal Court, the
defendant, Gamaliel Madelon, was convicted of assault and
battery, in violation of G. L. c. 265, § 13A (a). On appeal, he
contends that the trial judge erred in (1) denying his motion
for a required finding of not guilty where the date of offense
referenced at trial varied from the date of offense alleged in
the criminal complaint, and (2) allowing a detective to testify
about a telephone conversation he had with the defendant. We
affirm.
Background. At trial, the prosecutor asked the victim to
describe events that occurred on "April 29th of 2020."1 In
1The prosecutor also referred to April 29, 2020, as the date of offense during his opening statement and during direct examination of an eyewitness. The defendant did not object to either reference. response, the victim described an incident that occurred on
Boylston Street in Boston during which the victim "honked" the
horn of his car while stopped in traffic behind the defendant's
car. The victim "exited [his] car to see what's going on," and
"[a]t the same time," the defendant "came out of his car." The
victim asked the defendant, "Why aren't you moving? You blocked
the way." The defendant responded by grabbing the victim's
shirt near his throat and punching him in the face and head. At
some point, the defendant stopped striking the victim, returned
to his car, and drove away. The victim then used his cell phone
to take a photograph of the car driven by the defendant and its
license plate.2
Later at trial, the prosecutor asked Boston Police
Detective Michael Nucci about his investigation into an incident
that occurred on "April 29th of 2020."3 Detective Nucci
testified that the victim provided him with a video and
photograph depicting the "license plate attached to the vehicle
in question." Detective Nucci entered the license plate into a
database and found that it was registered to the defendant. He
then searched a "subsequent database" and obtained a telephone
The victim's version of events was further corroborated by 2
the testimony of the eyewitness, who saw the incident and "called 911" to report what he had witnessed.
3 The defendant did not object to this reference as well.
2 number for the defendant. Detective Nucci called the number and
"inquired as to who [he] was speaking with" and if he was
"speaking with the registered owner of the vehicle." The
defendant acknowledged that he was "Gamaliel Madelon," that he
was the registered owner of the vehicle in question, and that he
was involved in a "physical altercation at the date and location
in question." The defendant also "indicated that he felt that
he was being attacked and that he was defending himself."
The defense at trial centered on self-defense. The
defendant moved for a required finding of not guilty following
the close of the Commonwealth's case, arguing, in part, that the
Commonwealth alleged an incident date of April 18, but the
witnesses testified that the event occurred on April 29. The
judge denied the motion. The defendant renewed the motion for a
required finding of not guilty at the close of all evidence,
which the judge likewise denied. The jury found the defendant
guilty of assault and battery. This appeal ensued.
Discussion. 1. Variance. The criminal complaint listed
April 18, 2020, as the date of offense. As noted above, the
prosecutor referred to the date of offense as April 29, 2020,
during his opening statement and direct examinations. The
defendant argues that he was prejudiced by lack of notice of the
date of the crime. The claim is unavailing.
3 "[A] variance between the allegations and proof shall not
be a ground for the defendant's acquittal 'if the essential
elements of the crime are correctly stated, unless he is thereby
prejudiced in his defence.'" Commonwealth v. Day, 387 Mass.
915, 922 (1983), quoting G. L. c. 277, § 35. "The time alleged
for an offense is ordinarily treated as a matter of detail
rather than substance . . . . [T]here will be no fatal variance
if the Commonwealth has alleged one time for the commission of
an offense and proves that it occurred, but at another time"
(citations omitted). Commonwealth v. Campiti, 41 Mass. App. Ct.
43, 50 (1996).
Here, where the date of offense was not an essential
element of the crime alleged, the defendant has not demonstrated
that his defense was prejudiced by the variance. From the
criminal complaint, the defendant was provided notice that he
was charged with assault and battery based on the incident with
the victim, at Boylston Street and Massachusetts Avenue.
Further, had defense counsel believed that the Commonwealth was
proceeding on a theory that the incident occurred on April 29,
2020, he could have used the discrepancy to his advantage during
cross-examination or during closing argument. Instead, while
cross-examining the victim, rather than exploit the
Commonwealth's error, defense counsel referred to "the events of
April 29th of 2020." Seemingly recognizing that the discrepancy
4 was a misstatement by the Commonwealth, defense counsel did not
mention the date in his closing argument.
Moreover, as to what prejudice the error caused, the
defendant claims only that the variance may have precluded him
from asserting an alibi defense. This argument is unpersuasive
where the defendant made no proffer -- at trial or on appeal --
as to the possible existence or viability of such a defense.
Furthermore, he did not file a motion for a new trial through
which he could have attempted to present facts, witnesses, and
specifics to support an alibi defense. See Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001). Accordingly, we
are confident that the alleged variance did not impact the trial
or prejudice the defense.
2. Telephone conversation testimony. a. Authentication.
The defendant contends that Detective Nucci's testimony
regarding his telephone conversation with the defendant was not
adequately authenticated and thus was not properly admitted as
an admission by a party opponent. Again, we disagree.
"An extrajudicial statement made by a party opponent is an
exception to the rule against the introduction of hearsay, and
is admissible unless subject to exclusion on other grounds."
Commonwealth v. Spencer, 465 Mass.
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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-1324
COMMONWEALTH
vs.
GAMALIEL T. MADELON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Boston Municipal Court, the
defendant, Gamaliel Madelon, was convicted of assault and
battery, in violation of G. L. c. 265, § 13A (a). On appeal, he
contends that the trial judge erred in (1) denying his motion
for a required finding of not guilty where the date of offense
referenced at trial varied from the date of offense alleged in
the criminal complaint, and (2) allowing a detective to testify
about a telephone conversation he had with the defendant. We
affirm.
Background. At trial, the prosecutor asked the victim to
describe events that occurred on "April 29th of 2020."1 In
1The prosecutor also referred to April 29, 2020, as the date of offense during his opening statement and during direct examination of an eyewitness. The defendant did not object to either reference. response, the victim described an incident that occurred on
Boylston Street in Boston during which the victim "honked" the
horn of his car while stopped in traffic behind the defendant's
car. The victim "exited [his] car to see what's going on," and
"[a]t the same time," the defendant "came out of his car." The
victim asked the defendant, "Why aren't you moving? You blocked
the way." The defendant responded by grabbing the victim's
shirt near his throat and punching him in the face and head. At
some point, the defendant stopped striking the victim, returned
to his car, and drove away. The victim then used his cell phone
to take a photograph of the car driven by the defendant and its
license plate.2
Later at trial, the prosecutor asked Boston Police
Detective Michael Nucci about his investigation into an incident
that occurred on "April 29th of 2020."3 Detective Nucci
testified that the victim provided him with a video and
photograph depicting the "license plate attached to the vehicle
in question." Detective Nucci entered the license plate into a
database and found that it was registered to the defendant. He
then searched a "subsequent database" and obtained a telephone
The victim's version of events was further corroborated by 2
the testimony of the eyewitness, who saw the incident and "called 911" to report what he had witnessed.
3 The defendant did not object to this reference as well.
2 number for the defendant. Detective Nucci called the number and
"inquired as to who [he] was speaking with" and if he was
"speaking with the registered owner of the vehicle." The
defendant acknowledged that he was "Gamaliel Madelon," that he
was the registered owner of the vehicle in question, and that he
was involved in a "physical altercation at the date and location
in question." The defendant also "indicated that he felt that
he was being attacked and that he was defending himself."
The defense at trial centered on self-defense. The
defendant moved for a required finding of not guilty following
the close of the Commonwealth's case, arguing, in part, that the
Commonwealth alleged an incident date of April 18, but the
witnesses testified that the event occurred on April 29. The
judge denied the motion. The defendant renewed the motion for a
required finding of not guilty at the close of all evidence,
which the judge likewise denied. The jury found the defendant
guilty of assault and battery. This appeal ensued.
Discussion. 1. Variance. The criminal complaint listed
April 18, 2020, as the date of offense. As noted above, the
prosecutor referred to the date of offense as April 29, 2020,
during his opening statement and direct examinations. The
defendant argues that he was prejudiced by lack of notice of the
date of the crime. The claim is unavailing.
3 "[A] variance between the allegations and proof shall not
be a ground for the defendant's acquittal 'if the essential
elements of the crime are correctly stated, unless he is thereby
prejudiced in his defence.'" Commonwealth v. Day, 387 Mass.
915, 922 (1983), quoting G. L. c. 277, § 35. "The time alleged
for an offense is ordinarily treated as a matter of detail
rather than substance . . . . [T]here will be no fatal variance
if the Commonwealth has alleged one time for the commission of
an offense and proves that it occurred, but at another time"
(citations omitted). Commonwealth v. Campiti, 41 Mass. App. Ct.
43, 50 (1996).
Here, where the date of offense was not an essential
element of the crime alleged, the defendant has not demonstrated
that his defense was prejudiced by the variance. From the
criminal complaint, the defendant was provided notice that he
was charged with assault and battery based on the incident with
the victim, at Boylston Street and Massachusetts Avenue.
Further, had defense counsel believed that the Commonwealth was
proceeding on a theory that the incident occurred on April 29,
2020, he could have used the discrepancy to his advantage during
cross-examination or during closing argument. Instead, while
cross-examining the victim, rather than exploit the
Commonwealth's error, defense counsel referred to "the events of
April 29th of 2020." Seemingly recognizing that the discrepancy
4 was a misstatement by the Commonwealth, defense counsel did not
mention the date in his closing argument.
Moreover, as to what prejudice the error caused, the
defendant claims only that the variance may have precluded him
from asserting an alibi defense. This argument is unpersuasive
where the defendant made no proffer -- at trial or on appeal --
as to the possible existence or viability of such a defense.
Furthermore, he did not file a motion for a new trial through
which he could have attempted to present facts, witnesses, and
specifics to support an alibi defense. See Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001). Accordingly, we
are confident that the alleged variance did not impact the trial
or prejudice the defense.
2. Telephone conversation testimony. a. Authentication.
The defendant contends that Detective Nucci's testimony
regarding his telephone conversation with the defendant was not
adequately authenticated and thus was not properly admitted as
an admission by a party opponent. Again, we disagree.
"An extrajudicial statement made by a party opponent is an
exception to the rule against the introduction of hearsay, and
is admissible unless subject to exclusion on other grounds."
Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). See Mass. G.
Evid. § 801(d)(2)(A) (2022). "Whether a statement qualifies as
an admission by a party opponent is a preliminary question of
5 fact for the judge, to be decided by a preponderance of the
evidence." Commonwealth v. Gray, 80 Mass. App. Ct. 98, 101
(2011). A judge "may look to 'confirming circumstances' that
would allow a reasonable jury to conclude that this evidence is
what its proponent claims it to be." Commonwealth v. Purdy, 459
Mass. 442, 449 (2011). "In the context of telephone
conversations, where a witness has received a telephone call and
cannot identify the caller's voice, evidence that the caller
identified himself as the defendant is not sufficient to
authenticate the conversation." Id. However, "confirming
circumstances" may provide sufficient evidence that the
defendant was the one who answered the telephone call. Id. We
review the judge's ruling for an abuse of discretion. See
Commonwealth v. Meola, 95 Mass. App. Ct. 303, 309 (2019).
Here, there were sufficient confirming circumstances to
allow a reasonable jury to find by a preponderance of the
evidence that the defendant was the person with whom the
detective spoke on the telephone. Detective Nucci used the
license plate number provided to him by the victim to identify
the defendant as the registered owner of the vehicle.4 Using
that information, Detective Nucci obtained a telephone number
4 The photograph taken by the victim, depicting the defendant's vehicle and license plate, was admitted in evidence at trial.
6 for the defendant. On the telephone call, the defendant
confirmed his name, his status as the registered owner of the
car, and his involvement in the altercation that he was
investigating. Taken together, these facts provide sufficient
confirming circumstances that it was more likely than not that
the defendant was the person with whom the detective spoke.
Thus, the judge did not err in allowing the detective to testify
about the defendant's conversation. See Commonwealth v. Loach,
46 Mass. App. Ct. 313, 316 (1999). See also Commonwealth v.
Wojcik, 43 Mass. App. Ct. 595, 606-607 (1997), quoting
Commonwealth v. Anderson, 404 Mass. 767, 770 (1989) ("A
telephone conversation between a witness and a person the
witness had never met may be admitted when confirming
circumstances tend to authenticate the identity of the other
person, even if . . . the witness does not recognize the
voice").
b. Voluntariness of the defendant's statements. The
defendant also contends that his statements during the telephone
call with the detective were involuntary and thus were
improperly admitted at trial. As the defendant did not raise
the issue of voluntariness in his motion in limine or at trial,
our review is limited to whether there was any error, and if so,
whether that error created a substantial risk of a miscarriage
7 of justice. See Commonwealth v. Bohigian, 486 Mass. 209, 219
(2020).
Where a defendant did not raise the issue of the
voluntariness of his statements at trial, a judge is obligated
to conduct a voir dire hearing sua sponte "only where there is
evidence of a substantial claim of involuntariness . . . and
where voluntariness is a live issue at the trial." Commonwealth
v. Stroyny, 435 Mass. 635, 646 (2002). If, after conducting a
voir dire hearing, the judge concludes that the statement is
voluntary, "the issue of voluntariness must be submitted to the
jury." Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007). If a
claim of involuntariness "is not a 'live issue' at trial, there
is no obligation for the judge either to conduct a voir dire, or
to instruct the jury on the humane practice rule." Commonwealth
v. Pavao, 46 Mass. App. Ct. 271, 274 (1999).
Here, the defendant failed to raise the issue of the
voluntariness of his statements, and thus the judge was not
required to conduct a voir dire unless there was a substantial
claim of involuntariness. See Pavao, 46 Mass. App. Ct. at 273-
274. The fact that the defendant was "not informed of [his]
right not to answer any questions or given time to consider
whether to make a statement" did not create a "substantial claim
of involuntariness," id. at 274 (citation omitted). The
defendant was not in custody, the conversation occurred over the
8 telephone, and the communication lacked the formality and
indicia of custodial interrogation. "[B]ecause no 'substantial
claim of involuntariness' arose during the trial, the judge did
not err in failing to act sua sponte." Commonwealth v. Cutts,
444 Mass. 821, 833 (2005).
Judgment affirmed.
By the Court (Blake, C.J., Neyman & Grant, JJ.5),
Clerk
Entered: January 17, 2025.
5 The panelists are listed in order of seniority.