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-95
COMMONWEALTH
vs.
KAMAL GARAMI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a District Court jury of assault and battery
on a family or household member, G. L. c. 265, § 13M (a), and
indecent assault and battery, G. L. c. 265, § 13H, the defendant
appeals. He argues that the judge erred in precluding a police
officer from testifying to the defendant's out-of-court
statement and contends for the first time on appeal that the
prosecutor's closing argument unfairly exploited the exclusion
of that statement and improperly appealed to sympathy. We are
troubled by the prosecutor's exploitation of the exclusion of
the defendant's statement, which was at the Commonwealth's
request. Even so, we discern no substantial risk of a
miscarriage of justice and thus we affirm.
Background. Based on the evidence at trial, the jury could
have found as follows. When the victim was thirty-six years old and had known the defendant for about a month, she married him
in an arranged marriage. A religious ceremony took place in
Algeria and was not legally binding. The defendant was twenty-
five years the victim's senior and she was financially dependent
on him. In December 2018, the victim moved to the United States
to live with the defendant. At first they stayed in hotels or
slept in the defendant's truck. In February 2019, they moved
into an apartment in Revere.
At 4:10 A.M. on February 28, 2019, the defendant arrived
home and went into the bedroom where the victim was asleep. The
defendant tried to have sex with the victim, but she told him
no. The defendant grabbed the victim by her breasts, back, and
buttocks. When the victim got out of bed and went to the living
room, the defendant followed her and hit her in the head,
causing her head to strike the wall. The defendant pushed the
victim out the apartment door. At 4:25 A.M., the victim
telephoned the police.
Police arrived and spoke to the victim in the lobby of the
apartment building. She was distraught and frantic, the area
under her eye was swollen, and there was blood coming from her
nose. The victim was subsequently transported to the hospital,
where examination revealed scratches and bruises on her breasts,
back, and buttocks.
2 Meanwhile, two officers knocked on the apartment door. The
defendant answered and said that he had been asleep.
The defense theory was that the victim fabricated the
crimes and the defendant was at the Revere police station when
the victim said they occurred. The defendant presented
testimony of Officer Bryan Brenes that at around the time of
these events, the defendant came into the Revere police station
and made a report to Officer Brenes. Officer Brenes initially
testified that the defendant came into the station at
"[a]pproximately 4 A.M." and was there until 4:15 A.M.; on
cross-examination, he agreed that the defendant made the report
at 3:45 A.M.; on redirect, he testified that the defendant left
at about 4 A.M. The home where the defendant and the victim
lived was about a mile away from the police station. In
closing, defense counsel argued that the jury should believe the
evidence placing the defendant at the police station at the time
when the victim said he hit her, and that the victim's arranged
marriage was "a lot of motive for reasons to ensure that she can
stay" in the United States.
Discussion. 1. Exclusion of defendant's statement to
police. The Commonwealth moved in limine to exclude Officer
Brenes's testimony that the defendant reported on February 28
that six days earlier the victim's brothers had telephoned him
3 and threatened to kill him. 1 At the hearing on the motion, the
defendant argued that his statement to Officer Brenes was
admissible not for its truth but to prove the victim's state of
mind because it "precipitate[d]" her 911 call and showed her
bias because the defendant was "somewhere else" at the time when
the victim alleged he hit her. 2 The prosecutor argued that the
defendant's statement to Officer Brenes was hearsay and was not
admissible to show the victim's motive to fabricate. The judge
admitted Officer Brenes's testimony that the defendant came to
the police station and made a report, but excluded the officer's
testimony about what the defendant said. 3
On appeal, the defendant argues that his statement to
Officer Brenes that the victim's brothers had threatened him was
admissible to show the victim's "state of mind, bias, and motive
1 The defendant has included in the record appendix copies of police reports that do not seem to have been included in the trial court record. We focus on the offers of proof as to the testimony that were made by the Commonwealth in the motion in limine and by the defendant at the hearing. 2 At the hearing, the defendant also argued that his statement to
Officer Brenes was admissible to prove the defendant's state of mind that he wanted to end his relationship with the victim. The defendant does not make that argument on appeal, and so we do not reach it. 3 A few minutes after the defendant left the police station,
Officer Brenes heard a radio broadcast mentioning the defendant's address and radioed other police officers, "Heads up, the man that lives at that address was just recently here filing a threats report, so she may be saying this to cause trouble." The judge also excluded Officer Brenes's testimony regarding that statement. The parties do not raise the issue on appeal, so we do not reach it.
4 to fabricate." He contends that the jury could have inferred
that the victim would have learned from her brothers of their
threats to the defendant and of the defendant's intent to end
their relationship, which would have given her a motive to
fabricate. However, on cross-examination, the victim denied
that there was any "disagreement or break-up" between her and
the defendant at the time of these events. And the defendant
did not seek to cross-examine her about what she knew about her
brothers' communications with the defendant, nor did he call any
other witness, such as one of the brothers, to testify on that
subject. Contrast Commonwealth v. Joyce, 382 Mass. 222, 229
(1981) (defendant should have been permitted to cross-examine
rape complainant about past prostitution arrests to show bias).
In those circumstances, Officer Brenes's testimony about
what the defendant said the victim's brothers said was multiple
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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-95
COMMONWEALTH
vs.
KAMAL GARAMI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a District Court jury of assault and battery
on a family or household member, G. L. c. 265, § 13M (a), and
indecent assault and battery, G. L. c. 265, § 13H, the defendant
appeals. He argues that the judge erred in precluding a police
officer from testifying to the defendant's out-of-court
statement and contends for the first time on appeal that the
prosecutor's closing argument unfairly exploited the exclusion
of that statement and improperly appealed to sympathy. We are
troubled by the prosecutor's exploitation of the exclusion of
the defendant's statement, which was at the Commonwealth's
request. Even so, we discern no substantial risk of a
miscarriage of justice and thus we affirm.
Background. Based on the evidence at trial, the jury could
have found as follows. When the victim was thirty-six years old and had known the defendant for about a month, she married him
in an arranged marriage. A religious ceremony took place in
Algeria and was not legally binding. The defendant was twenty-
five years the victim's senior and she was financially dependent
on him. In December 2018, the victim moved to the United States
to live with the defendant. At first they stayed in hotels or
slept in the defendant's truck. In February 2019, they moved
into an apartment in Revere.
At 4:10 A.M. on February 28, 2019, the defendant arrived
home and went into the bedroom where the victim was asleep. The
defendant tried to have sex with the victim, but she told him
no. The defendant grabbed the victim by her breasts, back, and
buttocks. When the victim got out of bed and went to the living
room, the defendant followed her and hit her in the head,
causing her head to strike the wall. The defendant pushed the
victim out the apartment door. At 4:25 A.M., the victim
telephoned the police.
Police arrived and spoke to the victim in the lobby of the
apartment building. She was distraught and frantic, the area
under her eye was swollen, and there was blood coming from her
nose. The victim was subsequently transported to the hospital,
where examination revealed scratches and bruises on her breasts,
back, and buttocks.
2 Meanwhile, two officers knocked on the apartment door. The
defendant answered and said that he had been asleep.
The defense theory was that the victim fabricated the
crimes and the defendant was at the Revere police station when
the victim said they occurred. The defendant presented
testimony of Officer Bryan Brenes that at around the time of
these events, the defendant came into the Revere police station
and made a report to Officer Brenes. Officer Brenes initially
testified that the defendant came into the station at
"[a]pproximately 4 A.M." and was there until 4:15 A.M.; on
cross-examination, he agreed that the defendant made the report
at 3:45 A.M.; on redirect, he testified that the defendant left
at about 4 A.M. The home where the defendant and the victim
lived was about a mile away from the police station. In
closing, defense counsel argued that the jury should believe the
evidence placing the defendant at the police station at the time
when the victim said he hit her, and that the victim's arranged
marriage was "a lot of motive for reasons to ensure that she can
stay" in the United States.
Discussion. 1. Exclusion of defendant's statement to
police. The Commonwealth moved in limine to exclude Officer
Brenes's testimony that the defendant reported on February 28
that six days earlier the victim's brothers had telephoned him
3 and threatened to kill him. 1 At the hearing on the motion, the
defendant argued that his statement to Officer Brenes was
admissible not for its truth but to prove the victim's state of
mind because it "precipitate[d]" her 911 call and showed her
bias because the defendant was "somewhere else" at the time when
the victim alleged he hit her. 2 The prosecutor argued that the
defendant's statement to Officer Brenes was hearsay and was not
admissible to show the victim's motive to fabricate. The judge
admitted Officer Brenes's testimony that the defendant came to
the police station and made a report, but excluded the officer's
testimony about what the defendant said. 3
On appeal, the defendant argues that his statement to
Officer Brenes that the victim's brothers had threatened him was
admissible to show the victim's "state of mind, bias, and motive
1 The defendant has included in the record appendix copies of police reports that do not seem to have been included in the trial court record. We focus on the offers of proof as to the testimony that were made by the Commonwealth in the motion in limine and by the defendant at the hearing. 2 At the hearing, the defendant also argued that his statement to
Officer Brenes was admissible to prove the defendant's state of mind that he wanted to end his relationship with the victim. The defendant does not make that argument on appeal, and so we do not reach it. 3 A few minutes after the defendant left the police station,
Officer Brenes heard a radio broadcast mentioning the defendant's address and radioed other police officers, "Heads up, the man that lives at that address was just recently here filing a threats report, so she may be saying this to cause trouble." The judge also excluded Officer Brenes's testimony regarding that statement. The parties do not raise the issue on appeal, so we do not reach it.
4 to fabricate." He contends that the jury could have inferred
that the victim would have learned from her brothers of their
threats to the defendant and of the defendant's intent to end
their relationship, which would have given her a motive to
fabricate. However, on cross-examination, the victim denied
that there was any "disagreement or break-up" between her and
the defendant at the time of these events. And the defendant
did not seek to cross-examine her about what she knew about her
brothers' communications with the defendant, nor did he call any
other witness, such as one of the brothers, to testify on that
subject. Contrast Commonwealth v. Joyce, 382 Mass. 222, 229
(1981) (defendant should have been permitted to cross-examine
rape complainant about past prostitution arrests to show bias).
In those circumstances, Officer Brenes's testimony about
what the defendant said the victim's brothers said was multiple
level hearsay. It "was inadmissible hearsay, because the
defendant made the statement outside the court room, the
defendant was not subject to cross-examination regarding the
statement, the statement was intended to prove the truth of the
matter asserted, and the defendant, not an adverse party, was
offering the statement in evidence." 4 Commonwealth v. McCowen,
4 Contrary to the defendant's argument, the fact that during deliberations the jurors asked, "Are we able to view the police report from the [d]efendant? 3:45 A.M." did not render admissible the hearsay in that report.
5 458 Mass. 461, 485 (2010). See Commonwealth v. Steeves, 490
Mass. 270, 277 (2022); Mass. G. Evid. § 801 (2023).
2. Prosecutor's closing argument. The defendant argues
that in closing the prosecutor unfairly exploited the exclusion
of the defendant's statement to Officer Brenes and improperly
appealed to sympathy. The defendant did not object at trial,
and so we review the closing argument to determine if it
contained error, and, if so, if the error gave rise to a
substantial risk of a miscarriage of justice. See Commonwealth
v. Kozubal, 488 Mass. 575, 590 (2021), cert. denied, 142 S. Ct.
2723 (2022). "A substantial risk of a miscarriage of justice
exists if we have serious doubt whether the result of the trial
might have been different had the error not been made."
Commonwealth v. Schoener, 491 Mass. 706, 722 (2023).
In closing, the prosecutor argued, "Now, I would suggest to
you that the [d]efendant went to the Revere Police Department in
advance, knowing that when he came home that night, he might
have to choose violence, because that's what he did. Planned it
[in] advance, all right." The argument was improper. After
having successfully excluded from evidence the defendant's
statement about why he went to the police station, the
prosecutor improperly argued that the jurors should infer that
the reason he went there was because he was planning to "choose
violence." We are troubled by the prosecutor's argument. "A
6 prosecutor is barred from referring in closing argument to
matter that has been excluded from evidence . . . and a
prosecutor should also refrain from inviting an inference from
the jury about the same excluded subject matter" (quotation,
citation, and alteration omitted). Commonwealth v. Lopez, 474
Mass. 690, 699 (2016). Further, "counsel may not, in closing,
exploit the absence of evidence that had been excluded at h[er]
request. . . . Such exploitation of absent, excluded evidence
is fundamentally unfair and reprehensible" (quotation, citation,
and alteration omitted). Commonwealth v. Demetrius D., 94 Mass.
App. Ct. 12, 20-21 (2018).
However, in the circumstances of this case, we conclude
that the improper argument did not give rise to a substantial
risk of a miscarriage of justice. The victim's testimony that
the defendant grabbed her by her breasts, back, and buttocks and
hit her in the head was corroborated by her distraught demeanor
and by evidence of her injuries, including swelling under her
eye, blood coming from her nose, and scratches and bruises on
her breasts, back, and buttocks. The theory of the defense
focused on when, not why, the defendant was at the police
station. Defense counsel argued that the credible timeline
placed the defendant there until sometime after 4 A.M. In
response, the prosecutor properly argued that the credible
timeline placed the defendant at the police station shortly
7 before 4 A.M., and the defendant was not credible when he told a
responding officer shortly after 4 A.M. that he had just been
sleeping. In those circumstances, the prosecutor's improper
argument about why the defendant was at the police station does
not give us a "serious doubt" that the verdict would have been
different had the error not been made, Schoener, 491 Mass. at
722. Moreover, the error was mitigated by the judge's
instructions that closing arguments were not evidence, the
jurors' memories of the evidence controlled, and the jurors
should draw no adverse inference against the defendant because
he did not testify.
As to the defendant's contention that the prosecutor
improperly appealed to sympathy by referring in closing to the
victim's testimony about her living situation, we discern no
substantial risk of a miscarriage of justice. From the victim's
testimony that her marriage to the defendant was arranged,
defense counsel argued that she had "a lot of motive" to
fabricate the crimes. From that same testimony and from the
victim's testimony that the arranged marriage was not legally
recognized, the defendant was twenty-five years her senior, and
she was financially dependent on him, the prosecutor briefly
argued that the defendant was "taking advantage" of the victim
and had "entitlement" over her. See Commonwealth v. Hall, 66
Mass. App. Ct. 390, 397 (2006) (prosecutor's references to
8 victim's age relevant to her "willingness to obey" defendant,
not to evoke sympathy). Cf. Commonwealth v. Sun, 490 Mass. 196,
212 (2022) (prosecutor's lengthy description of murder victim's
good character not substantial likelihood of miscarriage of
justice). We discern no substantial risk of a miscarriage of
justice.
Judgments affirmed.
By the Court (Rubin, Ditkoff & Grant, JJ. 5),
Assistant Clerk
Entered: March 25, 2024.
5 The panelists are listed in order of seniority.