Commonwealth v. Claude J. Gray.

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-1259

COMMONWEALTH

vs.

CLAUDE J. GRAY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After jury trial in the District Court, the defendant was

convicted of two counts of witness intimidation, assault and

battery on a family or household member, and violation of an

abuse prevention order. On appeal, he argues that (1) the

admission in evidence of the victim's prior recorded testimony

violated his rights to confrontation and (2) the evidence at

trial was insufficient to establish one of the witness

intimidation counts. After review, we affirm.

Background. On the morning of December 22, 2021, the

police assisted elder services in doing a well-being check on a

resident. When they got to the apartment, there was a

handwritten note on the door: "not home today, thanks." After
the property manager allowed the police in, they found the

defendant in bed with the sixty-four year old victim, who had

two black eyes, a swollen lip, and bruising around her neck.

The defendant was arrested for violating a "no-trespass order"

and transported to the police station. The victim then told the

police that her injuries were due to a recent motor vehicle

accident.

The next day, the defendant was arraigned on the trespass

charge, as well as on a charge of assault and battery on a

person aged sixty or older. Pursuant to the Commonwealth's

request, the defendant was held without bail pending a

dangerousness hearing, scheduled for December 27, 2021. On that

date, the victim came to court and met with the prosecution

team, during which she advised that she had lied when she said

she had been in a motor vehicle accident; she stated that her

injuries resulted from a beating by the defendant. Later that

day, the victim obtained an ex parte abuse prevention order

against the defendant; that order prohibited the defendant from

having any contact, direct or indirect, with the victim. The

dangerousness hearing did not take place that day because the

defendant had filed a motion to dismiss the complaint,1 and the

motion was put over for the next date.

1 The basis of the motion was that the charge of assault and
battery on a person sixty years or older was supported only by a

2
On January 3, 2022, the defendant's motion to dismiss was

heard and allowed without objection; however, the defendant was

arraigned on new charges of strangulation or suffocation,

violation of an abuse prevention order, and two counts of

witness intimidation.2 The defendant offered to stipulate to

dangerousness with respect to the new charges, but the

Commonwealth insisted on an evidentiary hearing.3 The victim

testified at the hearing that the defendant had assaulted her

including slapping and punching her in the face with a closed

fist. In addition, the victim testified that, after the

assault, the defendant said to her: "If you send me to jail,

I'll make sure you go, too." The victim explained that she lied

to the police in order to protect the defendant. Additionally,

statement that the police did not believe that the victim's
injuries were consistent with a car accident.

2 The strangulation or suffocation charge arose out of the
same incident as the charges set forth in the dismissed
complaint, but it was supported by the victim's subsequent
disclosure directly implicating the defendant; the violation of
abuse prevention order and witness intimidation charges were
premised on subsequent events.

3 The defendant argued that the Commonwealth was seeking to
preserve the victim's testimony for future use, and that this
was an improper purpose for going forward with the hearing in
the face of the defendant's willingness to stipulate to and be
held because of dangerousness. The judge rejected the argument.
On appeal, the defendant argues that, for the purpose of prior
recorded testimony, unavailability due to assertion of the Fifth
Amendment privilege should be treated differently than other
types of unavailability. As we view no such distinction in the
case law, we decline to create one.

3
the victim testified that, since the defendant was placed in

custody, three of her friends had received letters from the

defendant asking them to intimidate the victim. The defendant

was held without bail on dangerousness.

On the date of trial, the defendant opted to represent

himself with appointed standby counsel. Additionally, the

prosecutor informed the court that the victim did not want to

testify, and that if she became an unavailable witness, the

Commonwealth intended to introduce her testimony from the

dangerousness hearing. The judge appointed an attorney to

represent the victim. After an ex parte, in camera hearing,4 the

judge ruled that the victim had validly invoked her Fifth

Amendment privilege against self-incrimination and was therefore

unavailable to testify at trial, and allowed the Commonwealth's

motion to introduce the victim's prior recorded testimony from

the dangerousness hearing.

The parties proceeded to jury selection. After the venire

had been exhausted without completing jury selection, the

parties proposed an unagreed plea to the judge. After a plea

colloquy with the defendant, the prosecutor gave a recitation of

the facts, which the defendant admitted were true. The judge

4 The hearing took place pursuant to Commonwealth v. Martin,
423 Mass. 496, 505 (1996).

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then asked for any input from the victim on disposition. The

victim, after being sworn, began:

"I fear that I may be the one who may have started this
whole incident. That's why I was going to claim the Fifth.
I think you already know that. I do know that we concocted
a story, because it just seemed easier at the time; and
then the police showed up and there was no more story.
Most of the time, all the time, we get along very, very
well, and I know him well. We were drinking, and he
snapped, and it just got worse for a little while."

After expressing her view that the time served in custody

pending trial was enough punishment for the defendant and that

"he just needs some counseling," the victim concluded: "I've

known [the defendant] for twelve years, and there's never been

an incident like this." After the judge announced his proposed

disposition, the defendant withdrew the offer to plead.

The following day, jury selection concluded and trial

commenced. The Commonwealth presented its case, including the

prior recorded testimony of the victim. The defendant presented

his case, including his own testimony. He denied having caused

the victim's injuries and instead attributed them to a medical

condition that caused her to have frequent falls, along with

intoxication and a prior car accident. He sought to explain the

victim seeking a restraining order by showing that she risked

eviction if she did not do so. And he testified that the victim

had found out that he had been with another woman, which

explained her testimony at the dangerousness hearing: "She was

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a scorned woman." He pointed out that the victim did not

testify at trial, "because she knows it's not true."

Discussion. 1. Prior recorded testimony. The defendant

contends that his confrontation rights were violated by the

admission in evidence of the victim's testimony from the

dangerousness hearing. Admission of prior recorded testimony at

a criminal trial does not violate confrontation rights where the

witness is unavailable at trial and the defendant had an

adequate opportunity to cross-examine during the prior recorded

testimony. See Commonwealth v. Caruso, 476 Mass. 275, 293

(2017). Whether there was an adequate opportunity to cross-

examine depends on five factors: If (1) the declarant was under

oath, (2) the defendant was represented by counsel, (3) the

proceeding took place before a record-keeping tribunal, (4) the

prior proceeding addressed substantially the same issues as the

current proceeding, and (5) the defendant had reasonable

opportunity and similar motivation on the prior occasion for

cross-examination of the declarant. Id. There is no dispute

that all five conditions were met with respect to the victim's

testimony at the dangerousness hearing.5 See Commonwealth v.

5 On cross-examination, the defendant elicited from the
victim that she was intoxicated on the night of the incident,
that she was the one who put the note on the door saying that no
one was home, that she had falls on her own at home, that she
never told the police that the defendant had assaulted her even
though the defendant was not present, that she initially refused

6
Hurley, 455 Mass. 53, 63 (2009) (admission of detention hearing

testimony at trial did not violate right to confrontation).

The question on appeal is whether the victim was truly

unavailable so as to unconstitutionally deprive the defendant of

her live testimony at trial. The victim's unavailability came

from her invocation of the Fifth Amendment privilege against

self-incrimination. See Commonwealth v. Canon, 373 Mass. 494,

499-500 (1977) (assertion of Fifth Amendment privilege

constitutes unavailability for purposes of prior inconsistent

statement). Once the judge ruled that the victim had a valid

basis for asserting the privilege, the defendant had no right to

call her as a witness at trial. See Pixley v. Commonwealth, 453

Mass. 827, 834 (2009). Nevertheless, the defendant argues that

he should have been able to call the victim at trial, because

she had waived the privilege through her prior testimony both at

the aborted plea hearing and at the earlier dangerousness

hearing. Because the issue of waiver by testimony was not

raised below, we review for a substantial risk of a miscarriage

of justice.6 Commonwealth v. Rand, 487 Mass. 811, 815 (2021).

medical attention, that even when she went to the hospital later
she told them that she had been in a car accident, and that she
needed to get the restraining order against the defendant in
order to maintain her housing.

6 We reject the defendant's argument that his objection to
the prior recorded testimony on confrontation grounds
encompassed the specific argument that the victim had waived her

7
A witness may waive her privilege against self-

incrimination by voluntarily testifying to facts of an

incriminating nature. See Taylor v. Commonwealth, 369 Mass.

183, 189-191 (1975). Even where a witness voluntarily testifies

to certain incriminating facts, however, the witness may still

be entitled to invoke the privilege if there is a real danger

that further testimony will expose the witness to legal

detriment. See Commonwealth v. Funches, 379 Mass. 283, 290-291

(1979). The waiver, once made, waives the privilege only with

respect to the same proceeding. See Commonwealth v. King, 436

Mass. 252, 258 n.6 (2002). Whether a voluntary waiver has

occurred is a question of fact for the judge. Id. at 258-259.

Because the judge was never asked to make a ruling whether the

victim voluntarily waived her privilege against self-

privilege against self-incrimination by prior testimony. See
Commonwealth v. Grady, 474 Mass. 715, 719-720 (2016) (objection
that substitute chemist would violate confrontation rights did
not preserve specific objection to substance of testimony).
The defendant argues that he did not need to raise the
issue because the judge was required to consider the issue of
waiver in the overall assessment of the witness' privilege. We
disagree. When considering the question of privilege, the judge
must be alerted that there is a question of waiver in order to
specifically address that issue. See Commonwealth v. King, 436
Mass. 252, 257-258 (2002) (appellate court reviewed issue where
defendant argued to trial judge that witness claiming Fifth had
waived it by earlier voir dire testimony); Commonwealth v.
Penta, 32 Mass. App. Ct. 36, 45 (1992), S.C., 423 Mass. 546
(1996) (fact that privilege existed did not conclude appellate
court's inquiry where defendant raised issue of waiver by
testimony to trial judge).

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incrimination, there are no findings on which to now base an

analysis. See Commonwealth v. Williams, 58 Mass. App. Ct. 139,

144 (2003) (appellate court unable to resolve issue without

trial court findings).

Even were we to assume that the victim's prior testimony at

the plea hearing was voluntary and part of the same proceeding,

we are not persuaded that the testimony was sufficiently

incriminating so as to constitute a waiver. At the aborted plea

hearing prior to trial, the victim testified that she "may be

the one who may have started this whole incident."

Notwithstanding her comment, "That's why I was going to claim

the Fifth," her testimony did not give rise to any criminal

liability. See Funches, 379 Mass. at 291 (witness did not waive

privilege against self-incrimination by admitting that

defendants came to his door looking to buy drugs, because he did

not admit to any element of any crime). We reject the

defendant's argument that her testimony amounted to an admission

that she was the first aggressor and that it exposed her to

criminal charges of assault and battery.

Likewise, the defendant contends that the victim's

testimony at the dangerousness hearing, to the effect that she

did not recall getting into an argument with the defendant prior

to the assault, "opened the door" to waiver by testimony on the

subject of whether she was the first aggressor and liable for

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assault and battery on the defendant. Again, we reject the

defendant's argument that a denial that there was an argument

prior to the assault amounted to an admission that the victim

was the first aggressor and exposure to criminal liability for

assault and battery.7 In the end, the basis for the victim's

assertion of privilege is unknown.8 The defendant has failed to

establish that the victim waived that privilege by her pretrial

testimony.

2. Sufficiency of evidence of witness intimidation. The

defendant contends that the Commonwealth failed to establish all

of the essential elements of witness intimidation with respect

to the count involving the letter to the defendant's former

7 The defendant also argues that the victim waived her
privilege at the dangerousness hearing to the extent that she
admitted lying to the police concerning the cause of her
injuries, and so he should have been able to call the victim to
explore this issue. However, he did not make clear to the judge
that he wanted to call the witness for this limited purpose.
And, in any event, the issue was fully explored at the
dangerousness hearing, so his lack of opportunity to cross-
examine her about it at trial created no substantial risk of a
miscarriage of justice. The defendant also argues that, to
whatever unknown extent the issue giving rise to the victim's
Fifth Amendment privilege arose after the dangerousness hearing,
he never had an opportunity to cross-examine her on this unknown
new issue, so that the conditions for admitting her prior
recorded testimony were not met. But that is the case with any
witness assertion of the privilege -- the defendant is deprived
of the opportunity to cross-examine the witness as to the
privileged matter. In any event, on this record the unpreserved
claim is too speculative to entitle the defendant to relief.

8 The panel requested to review the Martin hearing recording
but was advised that it is unavailable.

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employer.9 In order to prove witness intimidation, the

Commonwealth was required to show that the defendant (1)

willfully; (2) threatened, intimidated, or harassed; (3) a

witness in a criminal proceeding of any type; (4) with the

intent to impede or interfere with a criminal investigation or

proceeding. See Commonwealth v. Gardner, 102 Mass. App. Ct.

299, 304 (2023).

Here, the Commonwealth presented evidence that the

defendant sent a letter to his former employer, pleading with

him to call the victim and "TELL HER NOT TO GO TO COURT . . .

AND THIS WILL EVENTUALLY GO AWAY" and "PLEASE CALL HER . . . AND

CONVINCE HER -- OR I'M HAVING HER ARRESTED FOR STEALING." The

former employer thereafter spoke to the victim over the phone

and read the letter to her, "word for word."

The defendant argues that the substance of the letter

failed to demonstrate any intimidation directed at the victim or

an intent to intimidate her, because it amounted to a simple

request that she to decline to appear in court. Additionally,

the defendant argues that, to the extent the letter mentioned

that the defendant would have the victim arrested for stealing

9 The other count of witness intimidation involved the
defendant's statement to the victim, just after he assaulted
her, that if she called the police on him she would end up going
to jail. The evidence on this count came through the victim's
prior recorded testimony.

11
from him, there is no indication in the letter that this message

was intended to be conveyed to the victim.

As acknowledged by the defendant, the threat to "have [the

victim] arrested" may reasonably be viewed as intimidating. See

Gardner, 102 Mass. App. Ct. at 304 (intimidation defined as

words or actions that would instill fear in reasonable person).

And although there was no explicit directive to communicate the

entire substance of the letter to the victim, the strong thrust

of the letter was to "convince" the victim not to go to court;

the letter set forth the points that could be used to do so,

like promising that he would get his clothes out of her

apartment and never see her again and threatening that he had

evidence that could get her "federal charges" that he would

pursue if she didn't comply.

In the light most favorable to the Commonwealth, the jury

could have inferred that the defendant intended that the threat

be communicated to the victim. See Commonwealth v. Lahens, 100

Mass. App. Ct. 310, 320 (2021) (criminal intent may be inferred

from circumstances). See also Commonwealth v. Latimore, 378

Mass. 671, 677 (1979) (facts to be viewed in light most

12
favorable to Commonwealth on appeal from conviction). The

evidence was sufficient to prove witness intimidation.

Judgments affirmed.

By the Court (Sacks, Singh &
Walsh, JJ.10),

Clerk

Entered: January 28, 2025.

10 The panelists are listed in order of seniority.

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