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Docket: 18-P-873
Dates: April 2, 2019. - May 20, 2020
Present: Hanlon, Desmond, & Shin, JJ
County: Suffolk
Keywords: Assault and Battery by Means of a Dangerous Weapon. Threatening. Evidence, Prior inconsistent statement, Impeachment of credibility. Witness, Impeachment.

      Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on February 19, 2014.

      The case was tried before David Weingarten, J.

      John G. Mateus for the defendant.

      Claudia Arno, Assistant District Attorney, for the Commonwealth.

      HANLON, J.  After a jury trial, the defendant, Christofa Pires, was found guilty of assault and battery by means of a dangerous weapon, assault, and threatening to commit a crime.[1]  He appeals, arguing that his conviction of assault should be vacated, because assault is a lesser included offense of assault and battery by means of a dangerous weapon; he also argues that all three convictions should be reversed because the Commonwealth improperly impeached its own witness, unfairly bolstering the victim's testimony, and undercutting the defendant's claim of self-defense.  For the following reasons, we reverse the conviction for assault and affirm the remaining convictions.

      Background.  The trial began on June 2, 2016.  The jury heard testimony from a number of witnesses, including the victim, Manuel Barbosa, the defendant, and Euclides Fonseca, who knew both men.  Some of the testimony was conflicting; however, both sides presented evidence that, in the early evening hours of February 17, 2014, either the defendant or Barbosa initiated a meeting between the two at a location outside of a bank on Columbia Road in the Dorchester section of Boston.  Fonseca accompanied the defendant.  There was ill will, or at least some tension, between Barbosa and the defendant because the defendant was or had been dating a woman who earlier had been Barbosa's girlfriend.  The two men approached each other and Barbosa punched the defendant in the face.  Barbosa testified that he believed the defendant was reaching for a knife, and so he punched him first.  The defendant staggered back and took a knife from his pocket and swung it at Barbosa, cutting him in the chest.  The defendant then struck Barbosa twice more with the knife, cutting him on the arm and hand.  Barbosa testified that he tried to fight back but the defendant "kept hitting" him, saying, "I'll hit you until I kill you."

      When Barbosa realized he wasn't able to fight against the defendant and the knife, he ran.  As he was running, he fell down, and, when he got up, the defendant cut him again on the right part of his back.  The defendant briefly pursued Barbosa with the knife in his hand, but then left the scene with Fonseca.  Barbosa received many stitches and spent four days in the hospital.  At the time of trial, he was scarred on the places where he had been cut and he showed the scars to the jury.

      The police became aware of this incident when a woman, Carissa Gibbs, made a 911 call at the time of the fight.  On May 31, 2016, a few days before the trial began, Gibbs met with Matthew Malone, an investigator from the district attorney's office, and repeated to him the details of the stabbing she had witnessed.  At trial, however, Gibbs testified that she remembered calling 911 and speaking with Malone, but did not recall why she had called 911 or the details of the incident she had provided to Malone.  After the prosecutor asked several more questions, Gibbs testified that "[she] made up a story" to tell Malone.[2]

      The Commonwealth then called Malone to impeach Gibbs.  Malone testified that, on May 31, 2016, he interviewed Gibbs about the stabbing she had witnessed on February 17, 2014.  He stated Gibbs informed him she called 911 because "she was driving down the street and noticed on the other side of the street a fist fight going on.  She then . . . noticed one of the men fall and was trying to crawl away, and as this was going on, the other man he was fighting with was stabbing him."  The trial judge then thoroughly instructed the jury that Malone's testimony could be used only on the issue of Gibbs's credibility, and not as "proof of any fact contained in that statement or in those statements."  The judge reiterated that instruction in his final instructions to the jury.  The defendant, represented by competent counsel, concedes that he did not object either to the testimony or to the limiting instructions.

      Boston Police Detective Eddie Hernandez testified, describing a video recording of surveillance footage from nearby establishments that showed a person running down the street wielding a knife and chasing another person.  The video was admitted in evidence.  In addition, a paramedic employed by "Boston EMS" testified that he responded to a call on February 17, 2014, at 8:00 P.M.  When he arrived, he observed Barbosa lying on the ground, with a wound "across his shoulder . . . [p]robably about [twelve] inches."  The wound was bleeding.  The paramedic removed the victim's clothes and treated wounds that "were very deep.  You could see the flesh.  You could see muscle."  Neither he nor his colleague found any weapons on the victim.  The paramedic's report was admitted in evidence along with other medical records "from the night of the incident."

      The defendant called Fonseca who testified that he witnessed the fight.  He said that, after Barbosa punched the defendant, Barbosa was on top of him.  Barbosa then got up and began running and the defendant followed.  When Fonseca approached the area where the defendant and Barbosa were, he saw blood on the ground and noticed the defendant holding a knife.  Fonseca and the defendant then left the scene and disposed of the knife.

      The defendant's theory at trial was self-defense.  He testified that Barbosa was known to carry a knife, and that he had seen Barbosa carry one previously.  The defendant stated that, when he met with Barbosa, Barbosa had both hands in his pockets and the defendant believed Barbosa was concealing a weapon.  The defendant testified:  "[A]fter [Barbosa] hit me with the punch, . . . I tried to avoid him.  Then I put my hands on my mouth and I felt the blood coming out and I got really upset, and then I reached in my pocket and I grabbed my knife . . . .  [W]hen he saw me with the knife, he tried to punch me.  I was trying to avoid him, and then I was trying to hit him with the knife."  The defendant agreed that he ran after Barbosa when he tried to run away and testified, "And that time when I hit him with the knife, I didn't know it had cut him.  Then when he lift up his jacket and I saw blood rolling."  The defendant then ran away with Fonseca.

      Discussion.  The defendant first argues that his convictions of assault and of assault and battery by means of a dangerous weapon were based on the same act.  For that reason, and because assault is a lesser included offense of assault and battery by means of a dangerous weapon, the conviction of assault, he argues, should be reversed.  The Commonwealth responds that the evidence would support a conviction on both charges (because the stabbing and the pursuit with the knife were separate crimes.)  Nonetheless, the Commonwealth also concedes that the judge did not instruct the jury specifically that each charge must be based on a separate and distinct act; for that reason, the Commonwealth concedes that the error created a substantial risk of a miscarriage of justice.  See Commonwealth v. Beal, 474 Mass. 341, 347-348 (2016).  Accordingly, we vacate the conviction and sentence of the lesser-included offense of assault (count 3), leaving intact the conviction of the greater offense, assault and battery by means of a dangerous weapon.  See id. at 348; Commonwealth v. Mello, 420 Mass. 375, 398 (1995).

      Improper impeachment.  The defendant next argues that the trial judge erred in allowing the Commonwealth to impeach the testimony of its own witness, Carissa Gibbs, with Malone's testimony about her prior statement.  Because the defendant did not object to this evidence at trial, we review to determine whether there was error and, if so, whether the error created a substantial risk of miscarriage of justice.  See Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014).

      It is true, as the prosecutor argues, that a party may be permitted to impeach its own witness with prior inconsistent statements, so long as a proper foundation is laid.  See G. L. c. 233, § 23;[3] Mass G. Evid. 613(a)(1) (2020).  However, this rule is not unlimited.  In Commonwealth v. Maldonado, 466 Mass. 742, 758 (2014), the court said:

"Although G. L. c. 233, § 23, permits a party to impeach its own witness with prior inconsistent statements, 'a party cannot rely on this statutory right to call a witness whom he knows beforehand will offer no testimony relevant to an issue at trial solely for the purpose of impeaching that witness.'  Commonwealth v. McAfee, 430 Mass. 483, 489-490 (1999), citing Commonwealth v. Benoit, 32 Mass. App. Ct. 111, 114-115 (1992).  Our holding in McAfee, supra at 490, furthers 'the sound policy of not permitting a litigant to evade the principle of hearsay exclusion and to introduce evidence which would be improper for the jury to consider for its substantive value.'"[4]  (Footnote omitted.)

      In addition, the note to the Mass. Guide. Evid. § 607 (2020) also points to McAfee, supra at 489-490, where the court said:

      "By statute, a party may impeach his own witness with prior inconsistent statements, provided that a proper foundation is laid.  G. L. c. 233, § 23.  The Appeals Court has held, however, that a party cannot rely on this statutory right to call a witness whom he knows beforehand will offer no testimony relevant to an issue at trial solely for the purpose of impeaching that witness with prior inconsistent statements that would otherwise be inadmissible.  See . . . Benoit, 32 Mass. App. Ct. . . . [at] 114-115 . . ..  See also Commonwealth v. McGee, 42 Mass. App. Ct. 740, 746 (1997).  This rule, recommended by the sound policy of not permitting a litigant to evade the principle of hearsay exclusion and to introduce evidence which would be improper for the jury to consider for its substantive value, is well-recognized in the Federal courts.  See cases cited in . . . McGee, supra; . . . Benoit, supra at 115-116.  Although we have not previously spoken to this precise issue, our decision in Brooks v. Weeks, 121 Mass. 433, 434 (1877), interpreting an earlier version of G. L. c. 233, § 23, suggested that a witness's testimony would properly be excluded from trial if the witness 'was introduced merely for the purpose of contradicting him.'"  (Emphasis added.)  (Footnote omitted.)

    In the present case, Gibbs's testimony, taken alone, added nothing of value - and the prosecutor had reason to know that before she called her as a witness.  As she told the judge, after the recording of the 911 call was excluded, "Today she's here with a friend and conveniently does not remember a thing and denies having any memory of the event."[5]

      In support of his argument that there was error, the defendant cites Commonwealth v. Sanders, 451 Mass. 290, 302 n.10 (2008), and Commonwealth v. Santos, 463 Mass. 273, 294-295 (2012).  The Commonwealth responds that there was no error, citing Commonwealth v. Silvester, 89 Mass. App. Ct. 350, 362 (2016), and Mass. G. Evid. § 613(a)(1) (2018).[6]

      None of these cases addresses the precise issue before us. The defendant relies on Sanders and Santos in support of his contention that the judge had to first make a finding that Gibbs was feigning lack of memory before admitting her prior statements.  The defendant correctly observes that the judge made no such finding here.  More fundamentally, we note that both Sanders and Santos address the use of grand jury testimony, which is sworn testimony and therefore different.  See Mass. G. Evid. § 801(d)(1)(A) (2020) ("A statement that meets the following conditions is not hearsay:  (1) A declarant-witness's prior statement[.]  The declarant testifies and is subject to cross-examination about a prior statement, and the statement (A)(i) is inconsistent with the declarant's testimony; (ii) was made under oath before a grand jury, or at an earlier trial, a probable cause hearing, or a deposition, or in an affidavit made under the penalty of perjury in a G. L. c. 209A proceeding; (iii) was not coerced; and (iv)is more than a mere confirmation or denial of an allegation by the interrogator" [emphasis added]).[7],[8]

      In this case, of course, Gibb’s prior statement to Malone, the Commonwealth's investigator, was not given under oath, so the exception outlined in Mass. G. Evid. § 801(d)(1)(A) does not apply here.  For that reason, the cases discussing the admissibility of grand jury testimony are beside the point.  The court in Maldonado, 466 Mass. at 754-755, 757-758, recognized this distinction when it distinguished between the prior inconsistent statement given in that case by one witness before the grand jury from the statement given by another witness to an acquaintance.  In particular, the court noted "that prior inconsistent statements made under oath before a grand jury could be admitted substantively at trial, 'provided the witness can be effectively cross-examined as to the accuracy of the statement, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented.'  [Commonwealth v. Daye, 393 Mass. 55, 75 (1984)].  In Commonwealth v. Sineiro, 432 Mass. 735, 745 & n.12 (2000), we extended this principle to encompass grand jury testimony of a witness who a judge determines is 'falsifying a lack of memory.'"  Maldonado, supra at 755.

      In Silvester, this court noted that the impeaching testimony in that case "was not offered for its truth, but rather elicited as a prior inconsistent statement.  The judge properly limited the evidence to assessing [the witness's] credibility.  There was no error.  See Commonwealth v. Basch, 386 Mass. 620, 623 (1982).  See generally Mass. G. Evid. § 613(a) & note (2016) (extrinsic evidence of prior inconsistent statement by witness called by adverse party admissible for impeachment purposes).  Regardless, this testimony was cumulative, as the same witness already testified that the defendant brought a gun of some sort to the fight."  (Emphasis added.)  (Footnote omitted.)  Silvester, 89 Mass. at 362.  The present case is different, because, in Silvester, the witness who was impeached already had given -- at trial -- substantial testimony about the shooting at issue; for that reason, the prosecutor properly impeached her with an inconsistent statement she had made to a police officer.  Id.  The concern in the present case is that Gibbs provided nothing of substance to impeach. [9]

      However, as noted, there was no objection either to calling Gibbs as a witness or to Malone's testimony.  The same was true in Maldonado, where the court stated, "The defendant . . . did not object to the admission of this testimony provided a limiting instruction was given, which it was, so we consider only whether the admission of this hearsay with the limiting instruction created a substantial likelihood of a miscarriage of justice. . . [and] conclude that it did not."  Maldonado, 466 Mass. at 759.

      We come to the same conclusion here.  Again, the trial judge instructed the jury that Malone's testimony was to be considered strictly for impeachment purposes, and not for the truth of the matter asserted.[10]  See Commonwealth v. Brown, 479 Mass. 163, 173 (2018) ("We presume that a jury follow all instructions given to it" [citation omitted]).

      Moreover, Malone's testimony was cumulative of other evidence at trial, evidence that was overwhelming, at least on the central issues underlying the question of the defendant's guilt on the charge of assault and battery by means of a dangerous weapon.[11]  Barbosa admitted that he threw the first punch, but testified that the defendant cut him four times.  That testimony was corroborated by medical records and the scars he showed to the jury, along with the testimony of a treating paramedic.  The jury also viewed surveillance footage conveying much of the substance of Gibbs's statement – that is, showing a man with a knife chasing after another man on Columbia Road in Dorchester on February 17, 2014.

      Fonseca testified that the defendant met with Barbosa for a prearranged encounter on Columbia Road in Dorchester on February 17, 2014; that the defendant chased after Barbosa when Barbosa ran away; and that he saw blood on the ground.  The defendant himself testified that he cut the victim and chased after him.  He also testified that he and Fonseca disposed of the knife in South Boston, so that he would not be found with it.

      After careful review of all of the evidence, we are satisfied that Malone's testimony did not create a substantial risk of a miscarriage of justice.  See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986) ("Where evidence of guilt is strong

and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice").  As to the assault conviction, the judgment is reversed and the verdict is set aside.  The remaining judgments are affirmed.

So ordered.


          [1] Initially, the defendant was charged with armed assault with intent to murder (count 1); assault and battery by means of a dangerous weapon (count 2); assault with a dangerous weapon (count 3); and threats to commit a crime (count 4).  Count 1 was dismissed at the request of the Commonwealth before trial.  The jury found the defendant guilty on counts 2 and 4; as to count 3, the jury returned verdicts finding the defendant guilty of both the charged offense of assault with a dangerous weapon and the lesser included offense of assault.  The judge then, after a hearing, and over the Commonwealth's objection, directed that only the guilty verdict of assault enter on count 3.

               [2] In preparation for her testimony at trial, Gibbs listened to a recording of her 911 call.  She testified that the recording did not refresh her memory.  After hearing a recording of the 911 call in voir dire, the judge denied the prosecutor’s request that the recording be admitted as an excited utterance.

               [3] "The party who produces a witness shall not impeach his credit by evidence of bad character, but may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony; but before proof of such inconsistent statements is given, the circumstances thereof sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked if he has made such statements, and, if so, shall be allowed to explain them."  G. L. c. 233, § 23.

               [4] In Maldonado, the issue was further complicated by the fact that the impeaching evidence contained a hearsay statement about what someone else had seen.  Maldonado, 466 Mass. at 758-759.

               [5] We acknowledge that the prosecutor might understandably have hoped that, once Gibbs had sworn to tell the truth, her memory might have improved.

               [6] Section 613(a)(1) of the Massachusetts Guide to Evidence, read together with § 607, as the note suggests, essentially tracks G. L. c. 233, § 23.

               [7] In a footnote in Sanders, the court said:  "We observe that [the witness's] response at trial that she 'did not recall' where the other two men went after the shooting cannot be inconsistent with anything she said at the grand jury.  A lack of memory is simply that; it is not a statement of anything, and cannot be impeached by a prior statement regarding what had occurred.  Commonwealth v. Martin, 417 Mass. 187, 197 (1994) (prior statement of witness not admissible where witness had no present memory of substance of prior statement).  See M.S. Brodin & M. Avery, Massachusetts Evidence § 6.13.2, at 318-319 (8th ed. 2007).  Unless the judge makes a finding that the lack of memory is a pretext, the use of grand jury testimony is not implicated.  See Commonwealth v. Sineiro, 432 Mass. 735, 745 n.12 (2000).  Clearly, there was no basis for such a finding of pretext here, and none was made.  Thus, the witness was never actually impeached with her grand jury testimony.  Nevertheless, there was no objection by the prosecutor to this impropriety."  Sanders, 451 Mass. at 302 n.10.

               [8] The Santos court said:  "Grand jury testimony is admissible as substantive evidence at trial in limited circumstances.  See Commonwealth v. Stewart, 454 Mass. 527, 533 (2009).  When a trial witness offers testimony that is directly inconsistent with that witness's testimony before the grand jury, the inconsistent grand jury testimony may be introduced substantively if certain foundational requirements, see Commonwealth v. Daye, 393 Mass. 55, 73-74 (1984), are met.  Commonwealth v. Cong Duc Le, 444 Mass. 431, 435-442 (2005).  Absence of memory when testifying at trial, where the witness had a prior recorded memory, is not, however, evidence of an inconsistent statement.  Commonwealth v. Martin, 417 Mass. 187, 197 (1994).  Here, [the witness’s] statement, which was admitted substantively and without limitation, might have been admissible as a prior inconsistent statement had the judge found that [the witness’s] lack of memory was feigned.  See . . . Sineiro, 432 Mass. . . . [at] 742 . . . .  The judge made no such finding.  Thus, after the efforts at refreshing her memory were unsuccessful, [the witness’s] statement about the gun should not have been admitted."  Santos, 463 Mass. at 294-295.

               [9] Nor is the citation to Basch on point in the present case.  In Basch, the court reversed the conviction because the defendant was not permitted to impeach the testimony of the medical examiner called by the Commonwealth regarding the time of death -- an essential issue on the facts of that case.  Basch, 386 Mass. at 623-624.

               [10] Specifically, the judge instructed the jury that Malone's testimony regarding Gibbs’s earlier statements to him was not "positive evidence of any fact contained in those statements.  The judge stated, "[I]f you find that [Gibbs’s earlier statements] occurred, [they] are relevant only as to Ms. Gibbs' credibility, and you may not take those statements that Mr. Malone testified to, if you find that they occurred, as proof of any fact contained . . . in those statements."

               [11] Malone's testimony was not relevant on the threatening to commit a crime charge as Gibbs never claimed to have heard any part of any verbal exchange between the two men.