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
22-P-218
COMMONWEALTH
vs.
NIK Y. HAMMOND.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, following a
jury trial in Lowell District Court, on one count of assault and
battery by means of a dangerous weapon, see G. L. c. 265,
§ 15A (b), two counts of assault and battery on a household
member, see G. L. c. 265, § 13M (a), one count of threat to
commit a crime, see G. L. c. 275, § 2, and one count of
strangulation, see G. L. c. 265, § 15D (b). The defendant
argues that reversal of his convictions is warranted because the
Commonwealth gave an improper opening statement, elicited
inadmissible evidence of prior bad acts, elicited inadmissible
testimony about the victim's pregnancy, elicited inadmissible
prior consistent statements, and the court lacked jurisdiction
to adjudicate certain crimes committed in another State. Only
the last contention has merit. We agree that, as the Commonwealth concedes, two crimes of which the defendant was
convicted -- one count of assault and battery by means of a
dangerous weapon (count 1) and one count of assault and battery
on a household member (count 2) -- were based on conduct that
occurred in Rhode Island, over which our courts lack
jurisdiction. The judgments on counts 1 and 2 are therefore
reversed and those counts shall be dismissed. The convictions
on the remaining counts (counts 3, 4, and 5) are affirmed. We
address each of the defendant's contentions below.
I. Background. a. Facts. In reviewing the defendant's
convictions, we must view the facts in the light most favorable
to the Commonwealth. See Commonwealth v. Vargas, 475 Mass. 338,
340 (2016). The victim testified at trial. The following facts
are taken from her testimony.
The victim began dating the defendant in 2018. In October
2018, the victim learned that she was pregnant. She told the
defendant, and he assured her that they would "figure it out."
He asked that she refrain from telling anyone else. She decided
to tell her parents, believing them an exception to the
defendant's request. The defendant disagreed. Upon learning
that the victim had told her parents about the pregnancy, the
defendant "got mad" and told the victim that she "was definitely
getting an abortion because he told [her] not to tell anybody."
She responded that she did not want an abortion, and he told her
2 that was "too bad" and that she "was getting one or he was going
to make sure [she] didn't have the baby." He explained that if
she "had the baby then he was going to rape and kill the baby"
and that he "was going to push [her] down the stairs" and "kick
her stomach so [she] wouldn't have the baby." She decided that
an abortion would be "best."
The relationship continued and, on January 2, 2019, the two
drove to a Burger King restaurant in Rhode Island. In the
parking lot, the defendant became angry without warning. He
grabbed the victim by the hair and "hit [her] head" against the
gear shift. She began speaking, but he told her to "shut up."
She continued speaking, and he told her that if she did not
stop, he would "punch [her] in the face." She continued
speaking, and he punched her in the face.
On July 4, 2019, a male colleague of the victim called her
while she was in bed with the defendant. The defendant was
familiar with the male colleague, as they had initially been
friends, but the two were not on good terms because the
colleague had recently learned that the defendant was abusing
the victim. Concerned that answering the call might "cause[] a
lot of drama," the victim did not answer the call. But the
defendant noticed this and began screaming at the victim,
demanding that she call the male colleague back. She did so,
and the defendant began yelling at the colleague, telling him to
3 stay away from the victim and to stop calling her. He then hung
up the phone and began choking the victim.
On August 15, 2019, the victim was in bed while finishing
up laundry and watching television. The defendant came home,
and the victim noticed that he was in a bad mood. She tried to
find out what was wrong, and the defendant became mad, pulled
her hair, and again choked her. She pushed him off, and the two
began yelling at each other, after which the defendant left the
apartment. A few days later, the victim ended the relationship.
b. Proceedings below. 1. The letter. The following
month, while the victim was at work, her manager told her that
the defendant had dropped off a letter for her. Prior to trial,
the Commonwealth moved to introduce the letter, arguing that the
victim was familiar with the defendant's handwriting and could
authenticate the letter as written by him. The defendant argued
that the letter was inadmissible hearsay and could not be
properly authenticated. The trial judge allowed a voir dire of
the victim, who testified that she recognized the handwriting as
the defendant's and that the contents of the letter made sense
in the context of their relationship. See Commonwealth v.
Purdy, 459 Mass. 442, 450 (2011). The judge allowed the
introduction of the letter, subject to the redaction of non-
relevant, prejudicial information. He asked that the parties go
through the document and come to an agreement on a set of
4 redactions. After conferring, the parties disagreed as to the
redaction of three parts of the letter, which the defendant
argued were more prejudicial than probative. The judge
overruled the defendant's objections as to all three parts.
The Commonwealth then began its opening statement by
reading the first three sentences of the defendant's letter. 1
The defendant objected, arguing that the Commonwealth's
discussion of the letter was prejudicial and tainted the jury.
The judge responded that the prosecutor had "made a promise. I
don't know if he's going to get that letter in, and we may have
to deal with the consequences of saying that he has a letter
that may not come into evidence in this case. So I note your
objection for the record, but I am going to overrule the
objection."
On the second day of trial, during the direct examination
of the victim, the prosecutor sought to admit the letter in
evidence. The defendant objected, arguing (1) that there was a
1 The prosecutor began his opening statement with the following remarks. "Dear [victim's name], first and foremost, I just want to deeply and -- deeply sincerely apologize for my actions and attitude toward you. I have never written a letter like this, so I'm sorry if this sucks. For the past two years, I have done nothing but hurt you, break you and traumatize you." The prosecutor went on the explain that "[t]hose words [we]re the words of the defendant in a letter addressed to [the victim]." We note that the portion of the letter read aloud by the prosecutor was not one of the portions that the defendant sought to redact during the motion in limine hearing.
5 lack of foundation establishing the defendant as the author of
the letter, and (2) that the letter was hearsay. The trial
judge stated that the foundation argument went to "weight not []
admissibility" but sustained the defendant's hearsay objection.
The Commonwealth argued, unsuccessfully, that having already
cleared the initial hurdle of authentication, the letter was
admissible as a statement by a party opponent and was relevant
because it showed the defendant's consciousness of guilt. The
judge concluded that the substance of the defendant's letter did
not clearly demonstrate consciousness of guilt and did not
necessarily amount to a statement against interest, penal or
otherwise, and that it was therefore hearsay. On that basis, he
excluded the letter.
2. The restraining order. At trial, there were three
instances where testimony was given regarding a restraining
order issued against the defendant. Two instances occurred
during the victim's testimony. The victim mentioned the
restraining order when discussing her decision to report the
abuse to the police and when discussing the letter that the
defendant had written to her. In both instances the defendant
objected, and the court struck the testimony and instructed the
jury to disregard the mention of the restraining order.
The third mention of the restraining order occurred during
the direct examination of the officer responsible for
6 investigating the defendant. The officer appeared to
misremember the charges against the defendant and incorrectly
stated that the defendant had been charged with the violation of
a restraining order. The defendant did not object, nor did he
ask for a limiting instruction; instead, after a sidebar, the
officer's recollection was refreshed with his police report and
he testified accurately about the charges that had been at
issue, which did not include a restraining order violation.
3. Jury questions. During deliberations, the jury asked
two questions. First, "[w]as there an aspect of the law that
prohibited the jury from viewing the letter written by the
defendant or any pictures?" Second, "[wa]s the restraining
order applicable evidence to consider? (or separation order)."
The parties agreed that the judge should reiterate the
instruction he had given at the close of evidence; the judge
accordingly repeated to the jury that "the evidence that was
presented to [the jury] is what is before [the jury] and . . .
[the jury are] not to speculate or to guess or to even consider
any evidence that was not something that . . . was evidence in
this case."
4. Sentencing. After the jury's guilty verdicts, the
court sentenced the defendant "as follows: On counts 1, 2, 3
and 5, you will be sentenced to [eighteen] months to the House
of Correction, suspended for one year, with special conditions
7 of stay away, no contact, no abuse, abide by the restraining
order and attend and complete certified batterers program. With
regards to count 4, you'll be sentenced to six months to the
House of Correction, suspended for two years, with the special
condition that you stay away, have no contact, no abuse, and
abide by the 209A order."
II. Discussion. a. Opening statement. The defendant's
first argument is that the Commonwealth's opening statement was
improper, as it recounted the inculpatory contents of a letter
that was not admitted in evidence. Because the defendant
objected to the opening statement, we review for prejudicial
error. Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 50
(2003).
As the defendant sets out in his brief, a prosecutor is
"entitled to state in [their] opening whatever [they] reasonably
and in good faith expected to prove by evidence." Commonwealth
v. Errington, 390 Mass. 875, 883 (1984). That the evidence may
not, in the end, be admitted, does not alone render the opening
statement improper. See Commonwealth v. Qualls, 440 Mass. 576,
586 (2003) ("Absent a showing of bad faith or prejudice, which
has not been made, the fact that certain evidence fails to
materialize is not a ground for reversal").
Here, in light of the judge's ruling on the motion in
limine that sought to introduce the letter, the prosecutor
8 objectively had a good faith basis to believe that the letter
would be admitted. Therefore, the defendant could not show bad
faith on the part of the prosecutor. We likewise think the
defendant could not show prejudice. Of course, the letter
itself was prejudicial, and the jury were sufficiently aware of
its existence, given that they asked a question about why they
had not been permitted to see it. But that is immaterial where
the judge's ruling excluding the letter was in error. "A
defendant's own statements are admissible as statements of a
party opponent." Commonwealth v. AdonSoto, 475 Mass. 497, 502
(2016), citing Mass. G. Evid. § 801(d)(2)(A) (2016). The letter
-- written by the defendant and offered in evidence by the
Commonwealth -- was not, as the judge concluded, inadmissible
hearsay. 2 Because the letter was erroneously excluded, the
description of it in the prosecutor's opening statement was not
prejudicial.
The defendant also argues that the judge failed, following
the letter's exclusion, to provide an adequate curative
instruction to the Commonwealth's opening statement. The
defendant, however, did not request an instruction or take any
other action in response to the opening argument once the judge
2 The trial judge did express concern about ambiguity in the letter, but his ruling was not based on a conclusion that the risk of unfair prejudice outweighed the letter's probative value.
9 ruled that the letter quoted therein was not admissible. The
defendant has not demonstrated that the opening statement
created a substantial risk of a miscarriage of justice. To
begin with, as we have described above, there was no prejudicial
error in the opening statement because the exclusion of the
letter was in error. Even putting that aside, the judge
properly instructed the jury in response to their questions
about the letter, reminding them to disregard anything not in
evidence. See Commonwealth v. Andrade, 468 Mass. 543, 549
(2014) ("The jury are presumed to follow the judge's
instructions").
b. Prior bad acts. 1. Restraining order. The
defendant's next argument is that the judge "erred by allowing
prior bad acts into evidence." The defendant points to
testimony by both the officer and the victim stating that the
defendant had been charged with violation of a restraining
order, arguing that this evidence was impermissibly admitted for
purposes of demonstrating bad character or propensity to engage
in wrongdoing. See Commonwealth v. Bryant, 482 Mass. 731, 734
(2019).
With respect to the officer's testimony, there was no
objection to this testimony or request for a limiting
instruction, and the officer corrected himself later in his
testimony after his recollection was refreshed by looking at his
10 police report. His corrected testimony thus was not that the
defendant had been arrested for violating a restraining order,
and we do not think a reasonable juror would have understood
this as evidence that a restraining order was taken out against
the defendant. In any event, even if it were such evidence, the
defendant has not demonstrated in light of the officer's
correction, that it created a substantial risk of a miscarriage
of justice. Commonwealth v. Davis, 487 Mass. 448, 467 (2021)
(unpreserved claim of error reviewed for substantial risk of
miscarriage of justice).
With respect to the victim's testimony about the
restraining order, it was struck by the judge. The defendant,
however, asserts that the jury were "concerned about" the
restraining order, because they asked whether it was "applicable
evidence to consider." In response to the jury's question, the
defendant "concur[red]" with the Commonwealth's suggestion that
the judge repeat the instruction that the jury should not
speculate as to matters not in evidence. To the extent the
defendant is concerned about the adequacy of that instruction,
he has not shown that any weakness in it created a substantial
risk of a miscarriage of justice.
2. The victim's pregnancy. The defendant next argues that
the prosecutor improperly elicited the victim's testimony
regarding her pregnancy and the defendant's response to learning
11 that the victim had revealed the pregnancy to her parents.
Calling this evidence of uncharged conduct, the defendant argues
that the probative value of the testimony regarding the victim's
abortion was substantially outweighed by its prejudicial effect.
See Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).
The defendant asserts that the claim of error is preserved
because he objected at trial, but his objection was only that
the victim was speculating that the defendant was threatening
physical violence when he stated that he was "going to make sure
[she] didn't have the baby." The defendant's new claim on
appeal -- that the risk of unfair prejudice from the evidence
that he bullied her into having an abortion she did not want
substantially outweighed its probative value -- was not
preserved. We therefore "review any error the judge made in
admitting the evidence at issue for a substantial risk of a
miscarriage of justice." Commonwealth v. Bonds, 445 Mass. 821,
828-829 (2006).
There was no error. As the judge instructed, in order to
prove that the defendant threatened to commit a crime, the
Commonwealth needed to prove "[f]irst, that the defendant
expressed an intent to injure a person or property of another,
now or in the future; second, that the defendant intended that
his threat be conveyed to a particular person; third, that the
injury that was threatened, if carried out, would constitute a
12 crime; and, fourth, that the defendant made the threat under
circumstances which could reasonably have caused the person to
whom it was conveyed to fear that the defendant had both the
intention and the ability to carry out the threat." The threats
against the victim if she did not get an abortion are the very
basis for the threat charge. The Commonwealth proved that after
the defendant learned that the victim was pregnant and refused
to have an abortion, he told the victim that he would violently
attack her and cause her to have a miscarriage and that if she
had the baby he would rape and kill the baby. The victim's
subsequent decision to have an abortion despite her initial
decision not to do so tended to show that the "threat by its
content in the circumstances" would have caused a person "to
fear that the threatened crime or injury might be inflicted"
(citation omitted). Commonwealth v. Leonardo L., 100 Mass. App.
Ct. 109, 114 (2021). The admission of the victim's testimony in
this respect was necessary to prove the Commonwealth's case.
Indeed, in large measure it was not evidence of uncharged
conduct at all, but of the very crime with which he was charged.
Had it been objected to on the grounds the defendant now raises,
there would have been no abuse of discretion in concluding its
probative value was not substantially outweighed by the risk of
unfair prejudice.
13 c. Prior consistent statements. The defendant's next
argument is that the prosecutor improperly elicited the victim's
prior consistent statements. The defendant points to four
instances where the prosecutor asked, first, whether the victim
had reported the incident when it happened, to which she
responded that she had not due to a fear of retaliation from the
defendant, and second, whether she had reported the incident to
the police on a future date, to which she responded that she
had. Of the four instances, the defendant objected to the last
but failed to object to the first three.
"Generally, a witness's prior consistent statement is
inadmissible." Commonwealth v. Fryar, 425 Mass. 237, 252
(1997). But "a witness's prior consistent statement is
admissible where a claim is made that the witness's in-court
statement is of recent contrivance." Commonwealth v. Zukoski,
370 Mass. 23, 26 (1976). 3
3 There is no merit to the Commonwealth's suggestion that no prior consistent statement was elicited, as the victim only testified as to the act of reporting and did not testify as to the contents of her conversations with the police. The Supreme Judicial Court has held that "[s]uch testimony 'is the equivalent of saying that [the complainant] repeated her account of the incident.'" Commonwealth v. Aviles, 461 Mass. 60, 68 (2011), quoting Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The victim's testimony that she had reported these incidents to the police thus must be treated as the equivalent of her repeating her account of the incident.
14 At the time the prior consistent statements were elicited,
during the direct examination of the victim, the defense had not
questioned her credibility or the delay in her reporting.
However, there was "no prejudice to the defendant because the
evidence would have been admissible on redirect examination."
Commonwealth v. Aviles, 461 Mass. 60, 70 (2011). On cross-
examination, defense counsel asked three separate times whether
anyone had called the police when the abuse occurred. Defense
counsel elicited that, at the time of the abuse, the victim had
lied to her mother about the cause of the bruises and markings
left by the defendant's beatings. The defendant's cross-
examination highlighted the victim's prior inconsistent
statements and her failure to report the abuse at the time it
allegedly occurred, suggesting that the victim's in-court
account of the abuse was contrived after the relationship had
ended. This would have opened the door on redirect examination
for the introduction of the victim's prior consistent
statements.
d. Lack of jurisdiction. The defendant's final argument
is that the court lacked jurisdiction to adjudicate the count of
assault and battery by means of a dangerous weapon (count 1) and
both counts of assault and battery on a family or household
member (counts 2 and 3). The Commonwealth concedes that the two
counts stemming from the defendant's conduct on January 2, 2019
15 -- assault and battery by means of a dangerous weapon (count 1)
and one count of assault and battery on a family or household
member (count 2) -- occurred in Rhode Island, and the trial
court therefore lacked jurisdiction over these counts. We
agree. With respect to count 3, the assault and battery against
a family or household member occurring on August 15, 2019, the
victim testified that it took place in the defendant's apartment
in Massachusetts. Consequently, that count was within the trial
court's jurisdiction.
III. Conclusion. On counts 1 and 2, the judgments are
reversed, the verdicts are set aside, and those counts shall be
16 dismissed. The remaining judgments of conviction on counts 3,
4, and 5 are affirmed. 4
So ordered.
By the Court (Green, C.J., Rubin & Hand, JJ. 5),
Clerk
Entered: September 8, 2023.
4 Although the defendant does not argue that in the case of reversal of only some of the convictions he is entitled to resentencing, nothing prevents him from bringing a motion seeking such resentencing if he believes he is entitled to it. See Commonwealth v. Tinsley, 487 Mass. 380, 390-391 (2021) (resentencing may be appropriate where sentences are interdependent and part of integrated package and only some are affirmed). See also id. at 381 ("Under double jeopardy principles, a new sentence may be imposed only on those convictions for which the sentence has not been fully served at the time of resentencing"). We express no opinion on that question. 5 The panelists are listed in order of seniority.