Commonwealth v. Daquon MacK.

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-477

COMMONWEALTH

vs.

DAQUON MACK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial on a five-count complaint, the defendant

was convicted of violating an abuse prevention order (209A

violation), G. L. c. 209A, § 7 (count one); committing an

assault and battery in violation of an abuse prevention order

(AB 209A), G. L. c. 265, § 13A (b) (iii) (count five); and

threatening to commit a crime, G. L. c. 275, § 2 (count two).

The jury acquitted the defendant of strangulation or

suffocation, G. L. c. 265, § 15D, and reckless endangerment of a

child, G. L. c. 265, § 13L. On appeal, the defendant raises two

issues. First, he argues that the evidence was insufficient to

find him guilty of the 209A violation, as the Commonwealth never

introduced a certified copy of the abuse prevention order in
evidence. Second, he argues that his trial counsel was

ineffective for failing to move to strike undisclosed statements

of the defendant and failing to impeach the victim on a prior

inconsistent statement. Because we agree that the evidence was

insufficient to establish the terms of the abuse prevention

order, we reverse the judgment on count one. Because we also

agree that there was sufficient evidence to support a conviction

of assault and battery, G. L. c. 265, § 13A (a), as a lesser-

included offense of AB 209A, we vacate the judgment on count

five and remand that count for entry of a new judgment and

resentencing. In all other respects, we affirm.

Background. 1. The abuse prevention order. On October 4,

2020, the victim obtained a New York abuse prevention order

against the defendant following a domestic incident. The order,

a "no contact" one, was set to expire on October 4, 2021. At

some point between October 2020 and October 2021, the victim

called authorities in New York and asked them to lift the order.

The authorities told the victim that she had no control over the

order and that the matter was out of her hands. At some point,

the order was extended. There was no evidence as to what the

extended order's terms were, or for how long it was extended.

2. The assault and the threat. On February 12, 2022, the

victim drove the defendant and their young child to a pharmacy.

During the drive, the defendant told the victim that "we will

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all go down in flames." He screamed at the victim such that she

could feel spit landing on her face. As the victim attempted to

park her car at the pharmacy, the defendant grabbed the victim's

neck with both hands and pulled her head downward. The victim

slammed on the brakes and stopped the car until the defendant

let go. Once he let go, she parked; the defendant got out of

the car; and the victim sped away.

The victim drove to a police station to report the crimes.

At the station, the investigating officer searched a nationwide

database and found the victim's New York abuse prevention order

against the defendant. The investigating officer asked the

victim whether she knew she had an active restraining order

against the defendant, and she answered yes. The issuing police

department in New York sent the investigating officer an

electronic copy of the restraining order, which he read. He

testified that the order was active and that "all the parameters

were enforceable." After his arrest, the defendant stated that

"[the victim] disregards [the abuse prevention order] herself.

. . . [S]he holds that over my head all the time."

3. The trial. Before trial, the prosecutor disclosed to

the defendant, via the criminal complaint and police report,

that the defendant had told the victim he would "light[] her car

up," which the victim understood to mean lighting her car on

fire. The police report also reflected that the victim "said

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that [the defendant] also had threatened to kill her and set her

on fire." The judge granted the defendant's motions in limine

to exclude evidence of prior bad acts and to exclude undisclosed

evidence. At trial, the victim testified to the following:

A.: "[The defendant] did say, 'Nobody's gonna get out of
the house tonight when we get home.' He's said things like
that in the past, but in this -- so I know what it means.
And this specific night he says, 'When we get back there,
nobody's gonna get out of the house. Nobody's leaving the
apartment tonight.'"

Q: "Okay."

A.: "Things like, 'We will burn -- we will burn at the
flames of glory is something he always says.' He
definitely said that that night, like he would set the
house on fire, and that nobody would leave."

Trial counsel objected.

At sidebar, trial counsel told the judge, "I have not heard

any of this." The judge agreed, telling the prosecutor that

"we're dealing with potentially a lot of information that is

coming out that you don't know, and he doesn't right? So at

this point, we have to limit what she's going to be saying."

Trial counsel requested a corrective instruction. The judge

offered trial counsel the opportunity to draft one but cautioned

that "sometimes it backfires because now I'm underscoring it,"

to which trial counsel responded affirmatively.

After sidebar, the prosecutor resumed her direct

examination of the victim:

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Q.: "[D]id the defendant ever say anything to you about
lighting your car up?"

A.: "Yes. He's also poured gasoline on my car."

Q.: "So that evening, did he say that he was going to
light your car up?"

A: "No, not that evening. No. He just mentioned that we
will all go down in flames."

Trial counsel did not object to this testimony.

Discussion. 1. Sufficiency of the evidence. When

reviewing a sufficiency claim, we ask whether "after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt" (citation omitted).

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The

defendant moved for required findings of not guilty on all

counts except the 209A violation. Because the issue of

sufficiency was not preserved as to the 209A violation, we

review for a substantial risk of a miscarriage of justice.

Commonwealth v. Melton, 436 Mass. 291, 294 n.2 (2002). We note

that convictions "based on legally insufficient evidence are

inherently serious enough to create a substantial risk of a

miscarriage of justice." Commonwealth v. McGovern, 397 Mass.

863, 867-868 (1986).

In order to prove a 209A violation, "the Commonwealth must

demonstrate that '(1) a valid [abuse prevention] order was

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entered by a judge and was in effect on the date of the alleged

violation; (2) the defendant violated the order; and (3) the

defendant had knowledge of the order." Commonwealth v.

Dufresne, 489 Mass. 195, 200 (2022), quoting Commonwealth v.

Kulesa, 455 Mass. 447, 452 (2009). The Commonwealth must

introduce evidence of the terms of the order to prove the second

element, namely that the defendant violated the order. See

Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 109 (2014)

("particular elements of the order -- including the duration of

the order, the conditions that were violated, and the

defendant's knowledge of those conditions -- must be

established"). Although the "standard method" of proving the

terms of a restraining order is to offer a copy of the order in

evidence, Commonwealth v. Marrero, 85 Mass. App. Ct. 911, 912

n.2 (2014), other evidence that proves the terms of the order

may suffice.

Here, as to the charge of violation of 209A, the jury were

instructed they must find,

"First, that a court had issued an order pursuant to
Chapter 209A of our general laws which ordered the
defendant to stay away from [the victim]. Second, that
such order was in effect on the date when its violation
allegedly occurred. Third, that the defendant violated the
order by failing to stay away from [the victim]. Fourth,
that the defendant knew that the pertinent term of the
order was in effect either by having received a copy of the
order or by having learned the pertinent terms of the order
in some other way."

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In this case, the jury were instructed that the elements

they had to find in order to convict the defendant of AB 209A

included

"that a court had issued an order pursuant to Chapter 209A
of our general laws against the defendant ordering him to
stay away from [the victim]"; "that the order was in effect
at the time of the alleged assault battery [sic]; and . . .
that the defendant knew that the pertinent terms of the
order were in effect."

We conclude that the Commonwealth did not adduce sufficient

evidence to establish the terms of the restraining order as of

February 2022, and thus whether it ordered the defendant to

"stay away" from the victim. Without knowing the terms of the

order, a rational jury could not conclude beyond a reasonable

doubt that the defendant violated the order -- a necessary

element of the crime. Although the victim testified that the

original one-year restraining order was a no contact order,

there was no evidence of the order's contents after it was

extended. The investigating officer's testimony that the order

was "active" and that "all the parameters were enforceable"

established that the order existed; however, he did not explain

what those parameters were. Nor was there any evidence that

this was, at any time, a "stay away" order. 1 Indeed, the words

"stay away" appear nowhere in the evidence. A rational fact

1 The instruction saying "stay away" was requested by the
prosecutor and ageed to by defense counsel.

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finder could not infer the terms of the extended order -– or

that it was a stay away order -– absent speculation. See

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.

215 (2007) and 460 Mass. 12 (2011) ("A conviction may not rest

on the piling of inference upon inference or on conjecture and

speculation").

The Commonwealth argues that the defendant's postarrest

statements proved that the defendant knew the order was in

effect when he assaulted the victim. The defendant acknowledged

that "he was aware that the order -- the restraining order was

in existence," because he felt that "she holds [the restraining

order] over my head all the time." These statements show that

the defendant was aware of the existence of an active

restraining order, but not what it prohibited. Compare

Commonwealth v. Melton, 77 Mass. App. Ct. 552, 556 (2010)

(victim's statement to defendant -- "[w]hat are you doing

calling me; there's a restraining order" -- sufficient to show

defendant's knowledge of order that prohibited calling). The

jury lacked a critical piece of information; namely, what the

terms of the order were. Cf. Commonwealth v. Kurko, 95 Mass.

App. Ct. 719, 722 (2019) (reversing conviction of violating

harassment prevention order where jury had no evidence of

order's terms). Because the terms of the abuse prevention order

were necessary to prove the 209A violation and it must have been

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a stay away order for the jury to convict on that charge in this

case, we must reverse the judgment on count one.

The judgment on count five need not be reversed, however,

because we agree with the Commonwealth that there was sufficient

evidence of the lesser-included offense of assault and battery,

G. L. c. 265, § 13A (a). The AB 209A charge contained all the

elements of an assault and battery charge. See Instruction

6.140 of the Criminal Model Jury Instructions for Use in the

District Court (2019) (defining elements of assault and battery,

G. L. c. 265, § 13A); Instruction 6.180 of the Criminal Model

Jury Instructions for Use in the District Court (2019) (defining

elements of AB 209A). See also Commonwealth v. Torres, 468

Mass. 286, 289 (2014) ("The elements of a lesser included

offense are necessarily a subset of the elements of the greater

offense"). By convicting the defendant of AB 209A, the jury

necessarily found all the elements of assault and battery beyond

a reasonable doubt. Accordingly, we vacate the defendant's

conviction of AB 209A and remand count five for entry of a new

judgment and resentencing for assault and battery, G. L. c. 265,

§ 13A (a). See Commonwealth v. Waterman, 98 Mass. App. Ct. 651,

654 (2020), quoting Commonwealth v. Sudler, 94 Mass. App. Ct.

150, 156 (2018) ("When there is insufficient evidence to support

a conviction, but there is sufficient evidence of a lesser

included offense of the crime of conviction, we vacate the

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conviction and 'remand for entry of a conviction of the lesser

included offense and for resentencing'").

2. Ineffective assistance of counsel. The defendant

argues that his conviction of count two, threatening to commit a

crime, must be reversed because trial counsel was ineffective

for failing to object to and move to strike the victim's

testimony concerning the threats. Since the defendant raises

his ineffective assistance claim for the first time on appeal

and did not move for a new trial below, "we will reverse the

defendant's conviction[] only if the ineffectiveness 'appears

indisputably on the trial record.'" Commonwealth v. Medeiros,

456 Mass. 52, 61 (2010), quoting Commonwealth v. Zinser, 446

Mass. 807, 811 (2006).

Counsel is ineffective when "(1) 'there has been serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinarily fallible lawyer'; and (2) as a

result, the defendant was 'likely deprived . . . of an otherwise

available, substantial ground of defence.'" Commonwealth v.

Henley, 488 Mass. 95, 134 (2021), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). The burden of proving an

ineffective assistance claim is on the defendant. Commonwealth

v. Montez, 450 Mass. 736, 755 (2008).

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When the ineffective assistance claim is "based on a

tactical or strategic decision, the test is whether the decision

was 'manifestly unreasonable' when made." Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v.

Acevedo, 446 Mass. 435, 442 (2006). Manifestly unreasonable

decisions refer only to "strategy and tactics which lawyers of

ordinary training and skill in the criminal law would not

consider competent." Kolenovic, supra, quoting Commonwealth v.

Pillai, 445 Mass. 175, 186-187 (2005).

a. The victim's initial testimony. The victim initially

testified that the defendant had told her, "[n]obody's leaving

the apartment tonight" and that "we will burn at the flames of

glory." Trial counsel objected on the ground that the

Commonwealth had not disclosed these statements prior to trial.

The judge warned trial counsel that, regarding a curative

instruction, "[s]ometimes it backfires because now I'm

underscoring it," to which counsel replied, "Yeah."

Trial counsel's decision not to move to strike the victim's

initial testimony bore the hallmarks of a strategic or tactical

decision. In fact, during the sidebar, he acknowledged the

strategic risk of striking the statements. The question is

whether the strategy was manifestly unreasonable. We cannot say

that it was. Trial counsel could have reasonably concluded that

striking the testimony and underscoring it with a curative

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instruction would have done more harm than good. See

Commonwealth v. Fredette, 396 Mass. 455, 466 (1985) (failure to

object and request curative instruction not ineffective where

"defense counsel could reasonably have concluded that objection

or further pursuit of the matter in the hearing of the jury

would only add emphasis and importance to the matter"). At the

time the objection was made, the judge and the parties all

expected that, when led by the prosecutor, the witness would

subsequently testify to the threat with respect to the car.

Given that and the minor difference involved in threating to

burn the victim alive in a house instead of a car, it certainly

might make sense not to have the judge repeat either version of

the threat while striking it. Trial counsel's decision with

respect to striking the victim's initial testimony was not

manifestly unreasonable.

b. The victim's subsequent testimony. The defendant

argues that defense counsel should have objected to the victim's

subsequent testimony on the threat -- "He just mentioned that we

will all go down in flames." He argues that if trial counsel

had objected and moved to strike, the judge would have sustained

the objection and struck the statement, leaving no evidence of

threats (had counsel also asked to have the earlier testimony

struck) and mandating entry of a required finding of not guilty.

See Commonwealth v. Sepheus, 468 Mass. 160, 172 (2014) (trial

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counsel was ineffective for failing to move to strike

nonresponsive answer on cross-examination that supplied

Commonwealth with proof of essential element of crime).

A claim for ineffective assistance of counsel based on a

failure to object to an error at trial is evaluated "essentially

the same as the substantial risk standard we apply to

unpreserved errors." Commonwealth v. LaChance, 469 Mass. 854,

858 (2014), cert. denied, 577 U.S. 922 (2015). An ineffective

assistance claim made solely on the trial record, like this one,

is the "weakest form" of an ineffective assistance claim,

because it is "bereft of any explanation by trial counsel for

his action and suggestive of strategy contrived by a defendant

viewing the case with hindsight" (citation omitted).

Commonwealth v. Norris, 462 Mass. 131, 142 (2012).

The defendant's argument flounders at the outset, because

there was no error in allowing in the testimony. The judge

would not properly have sustained the objection, and the

defendant would not have been entitled to a required finding of

not guilty.

The Massachusetts Rules of Criminal Procedure require that

"[t]he prosecution shall disclose to the defense . . . [a]ny

written or recorded statements, and the substance of any oral

statements, made by the defendant" (emphasis added). Mass. R.

Crim. P. 14 (a) (1) (A), (a) (1) (A) (i), as amended, 444 Mass.

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1501 (2004). see Commonwealth v. Lewinski, 367 Mass. 889, 902

(1975). The prosecutor disclosed the defendant's statement, as

recounted in the police report, that he would "light[] her car

up." The victim testified that she understood this to mean that

the defendant would light her car on fire, given that he had

previously poured gasoline over her car. The police report

further recounted that the defendant "also had threatened to

kill her and set her on fire." Although the previously-

disclosed statements in the police report did not match verbatim

the victim's testimony at trial ("we will all go down in

flames"), the disclosure captured the substance of the threat.

See Black's Law Dictionary 1728 (11th ed. 2019) (defining

"substance" as "[t]he essence of something; the essential

quality of something, as opposed to its mere form"). Since the

prosecutor disclosed the substance of the defendant's oral

statements, an objection on that basis would have been

overruled. See Commonwealth v. Collins, 470 Mass. 255, 261

(2014) (failure to make futile objection is not ineffective).

Trial counsel made a reasonable decision not to object. See

Commonwealth v. Johnson, 435 Mass. 113, 131 n.24 (2001), S.C.,

486 Mass. 51 (2020) ("[t]he fact that an attempted defense does

not work out as well as planned or hoped does not transform the

strategy into a manifestly unreasonable one"). Since the

defendant fails to illustrate "serious incompetency,

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inefficiency, or inattention" of his trial counsel -- the first

prong of the Saferian test, 366 Mass. at 96 -- trial counsel was

not ineffective.

c. Trial counsel's decision not to impeach the victim.

The defendant contends that trial counsel was ineffective for

not impeaching the victim based on the discrepancy between her

statements to police and her testimony at trial. To underscore

this argument, the defendant points to trial counsel's effective

cross-examination of the witness on other issues, which he

argues led the jury to acquit the defendant of strangulation and

recklessly endangering a child. Cf. Commonwealth v. Fisher, 433

Mass. 340, 357 (2001) (failure to impeach witness with prior

inconsistent statements not ineffective where witness was

impeached on other grounds).

Since impeachment of a witness is "fraught with a host of

strategic considerations," an ineffective assistance claim based

on failure to impeach is "difficult to establish." Fisher, 433

Mass. at 357. "Generally, failure to impeach a witness does not

amount to ineffective assistance of counsel." Id. As discussed

above, trial counsel's decision not to move to strike the

victim's initial testimony sounded in strategy. The judge

suggested, which trial counsel acknowledged, that moving to

strike the testimony would call the jury's attention to the

testimony. So too with cross-examination. Trial counsel could

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have reasonably concluded that calling attention to the

defendant's threat through cross-examination of the victim would

backfire. This is especially true given that the discrepancy

between the two recounted threats was minute and trial counsel

could have reasonably concluded that impeaching the witness on

the discrepancy would be futile. The defendant fails to meet

his burden to satisfy the first prong of the Saferian test.

Conclusion. Accordingly, on count one of the complaint

alleging the 209A violation, we reverse the judgment of

conviction, set aside the verdict, and order entry of judgment

for the defendant. On count five alleging AB 209A, the judgment

is vacated, the verdict is set aside, and that count is remanded

for entry of a new judgment and resentencing for assault and

battery, G. L. c. 265, § 13A (a). The judgment on count two is

affirmed.

So ordered.

By the Court (Rubin,
Desmond & Singh, JJ. 2),

Clerk

Entered: December 2, 2024.

2 The panelists are listed in order of seniority.

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