Commonwealth v. William Hidalgo.

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-199

COMMONWEALTH

vs.

WILLIAM HIDALGO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant,

William Hidalgo, was convicted of strangulation or suffocation,

assault and battery on a family or household member, and assault

and battery by means of a dangerous weapon. He was acquitted of

one charge of assault by means of a dangerous weapon. On

appeal, the defendant claims that the trial judge (1) improperly

admitted evidence of prior bad acts, (2) mistakenly limited the

scope of the defendant's expert witness testimony, and (3)

allowed inadmissible evidence regarding his consciousness of

guilt. We affirm.

Discussion. 1. Prior bad acts. The charges against the

defendant stemmed from a 2017 incident. Over the defendant's
objection, the judge permitted the victim to testify about a

strangulation incident that occurred in 2012 and restraining

orders she obtained against the defendant between 2012 and 2014.

The defendant argues that there was a high risk that the jury

used the prior bad acts as proof of propensity to commit the

offenses in question here and that the lack of limiting

instructions "exacerbated" that risk.

While "[t]he Commonwealth may not introduce evidence of the

defendant's other bad acts in order to demonstrate bad

character, or a propensity to commit the crime charged," such

evidence may be admissible if it is relevant for a valid purpose

and its probative value is not outweighed by undue prejudice.

Commonwealth v. McDonagh, 480 Mass. 131, 140-141 (2018). We

review the judge's decision to admit such evidence for abuse of

discretion. See id. at 140.

Evidence of the hostile nature of the relationship between

the victim and the defendant is relevant and admissible. See

Commonwealth v. Huang, 489 Mass. 162, 174 (2022) (prior bad acts

admissible in murder case "to show the volatile nature of the

relationship" and to explain "the defendant's . . . state of

mind toward the victim" [quotation and citation omitted]);

Commonwealth v. Butler, 445 Mass. 568, 575-576 (2005) (prior bad

act evidence admissible in assault and battery case to show "the

hostile nature of relationship" and "continuing animosity on the

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defendant's part" toward victim). The contested evidence here

was admissible to demonstrate the defendant's ongoing animosity

towards the victim and provided the jury with a snapshot of his

state of mind prior to the incident. See Commonwealth v.

Robidoux, 450 Mass. 144, 158-159 (2007) (prior bad act evidence

admissible and relevant to motive and state of mind);

Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982)

(prosecution allowed to present prior bad act evidence of intent

or motive to provide "as full a picture as possible of the

events surrounding the incident itself").

Even when prior bad act evidence is relevant to a

permissible purpose, it may still be excluded if its probative

value is "outweighed by the risk of unfair prejudice to the

defendant, even if not substantially outweighed by that risk."

Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014); Mass.

G. Evid. § 404(b)(2) (2024). Outside of a brief account of the

2012 strangulation incident and subsequent restraining order,

the victim's testimony on direct examination was limited to her

accounting of the relationship and a broad mention of "other

times" that restraining orders were obtained. We are confident

that this evidence did not prejudice the defendant by

overwhelming the jury's attention away from the conduct

underlying the 2017 charges. Moreover, on cross-examination,

defense counsel effectively elicited specific details and a

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precise timeline of each restraining order in support of a

theory that the victim used the orders to manipulate the

defendant. See Commonwealth v. Mason, 485 Mass. 520, 535 (2020)

(risk of prejudice effectively mitigated on cross-examination).

Defense counsel did not request a limiting instruction to

prevent the jury from improperly considering the victim's

testimony as evidence of criminal propensity, nor did he object

to the judge's failure to give a limiting instruction. Although

the better practice might have been to give a limiting

instruction sua sponte, we discern no error from the judge's

failure to do so. See Commonwealth v. Correia, 492 Mass. 220,

231 n.17 (2023) ("Although there generally is no requirement

that the judge give limiting instructions sua sponte, we have

said that where the risk of unfair prejudice is apparent . . .

contemporaneous limiting instructions are much to be preferred,

even if a defendant does not request them" [quotations and

citations omitted]). The fact that the jury acquitted the

defendant of assault with a dangerous weapon suggests that their

decision was based on the evidence of the crimes presented at

trial, and not based on the prior incidents. See Butler, 445

Mass. at 576 (defendant's acquittal of "serious assault and

battery charge" indicated jury did not misuse evidence for

propensity purpose).

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2. Expert testimony. The defendant argues that the

judge's decision to restrict the scope of his expert's testimony

was an abuse of discretion and denied him his constitutional

right to present a complete defense. Exclusion of expert

testimony is reviewed under an abuse of discretion standard to

"consider whether the judge made a 'clear error of judgment in

weighing' the relevant factors 'such that the decision falls

outside the range of reasonable alternatives.'" Commonwealth v.

German, 483 Mass. 553, 569 (2019), quoting L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014).

At trial, the defendant offered the expert medical

testimony of a triage nurse with twenty-one years of experience

in the walk-in unit at Massachusetts General Hospital. During

voir dire, the expert could not recall whether she had received

any specialized training on strangulation, domestic violence, or

traumatic injuries. She stated that, in her experience, the

type of injuries displayed after a traumatic injury "varies

depending on the patient" and involves evaluation of several

factors including the severity of the injury. The expert also

admitted that, in her role as a registered nurse, she did not

have the ability to diagnose patients or prescribe a course of

treatment. After extensive questioning, the judge ruled that

the expert could clarify and define "various medical terms that

appear in the medical records" but could not testify as to "her

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own diagnosis based on what she sees or the absence of certain

findings that she would expect to see."

A party must establish five foundational elements before

expert testimony may be admitted. See Commonwealth v. Barbosa,

457 Mass. 773, 783 (2010), cert. denied, 563 U.S. 990 (2011);

Mass. G. Evid. § 702 (2024). The judge's decision to limit the

scope of the nurse's testimony was based on the second

foundational requirement, see Mass. G. Evid. § 702, Note (Second

Foundation Requirement: Qualifications of the Expert) -- a

failure to demonstrate that the expert had sufficient education

or training on the symptoms and physical manifestations of

strangulation and facial injuries, as well as her inability to

treat or diagnose patients. The judge's assessment of the

extent and limits of the nurse's expertise fell within the wide

range of reasonableness. See Commonwealth v. O'Brien, 494 Mass.

288, 300-301 (2024), quoting Commonwealth v. Torres, 469 Mass.

398, 406 (2014) ("Trial judges 'have broad discretion in

deciding whether to admit expert testimony'"). We discern no

abuse of discretion.

The defendant's constitutional argument fares no better.

While the defendant has the right to present a complete defense,

see Commonwealth v. Polk, 462 Mass. 23, 33 (2012), the exclusion

of expert testimony regarding common symptoms of strangulation

and other traumatic injuries did not deprive him of that right.

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The defendant contends that exclusion of the expert testimony

prevented him from challenging the victim's credibility by

"fully fleshing out" the inconsistencies between her testimony

and the medical records. Even were we to accept that argument,

the value of the proposed opinion evidence to the defendant does

not relieve him of the burden of offering a qualified expert to

provide it. See Commonwealth v. Ronchi, 491 Mass. 284, 301

(2023) ("A defendant's right to present a full defense . . . is

not without limits . . . , and as a general rule, does not

entitle him [or her] to place before the jury evidence normally

inadmissible" [citation omitted]). Moreover, defense counsel

ably highlighted those discrepancies at several points during

direct examination of the expert and during his closing

argument.1 We are confident that the defendant had the benefit

of a complete defense. See Polk, supra.

3. Consciousness of guilt. Finally, the defendant claims

that the judge improperly admitted evidence showing

consciousness of guilt. This claim is unfounded.

1 The defendant argues that the jury were unable to assess
the victim's credibility as to her testimony because he was
precluded from fully analyzing her claim that she lost
consciousness during the incident. The transcript indicates,
however, that the expert testified that both the emergency
medical technician reports and the hospital records show no loss
of consciousness.

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At trial, the following stipulation was introduced: "This

case was previously scheduled for trial on January 10, 2019.

Defendant was present for trial and the Commonwealth answered

ready for trial. The defendant defaulted before the second call

of the list." The defendant argues that the stipulation failed

to prove that he had notice of the trial date as required under

Commonwealth v. Hightower, 400 Mass. 267, 269 (1987). To be

sure, evidence of a default may be properly considered as

consciousness of guilt evidence only if it is also shown that

the defendant received notice of the trial date. See id.;

Commonwealth v. Addy, 79 Mass. App. Ct 835, 841-842 (2011).

Here, however, there is no plausible claim that the defendant

lacked notice, where he was present in court for the first call

on the scheduled trial date. Accordingly, the trooper's

testimony regarding the defendant's flight to Tennessee was

admissible and relevant as to consciousness of guilt. See

Commonwealth v. Booker, 386 Mass. 466, 471 (1982) ("Evidence

that tends to show consciousness of guilt is relevant").

Additionally, the judge gave a proper consciousness of guilt

instruction, reminding the jury that there may be innocent

reasons for flight. See Commonwealth v. Stuckich, 450 Mass.

449, 453 (2008), quoting Commonwealth v. Toney, 385 Mass. 575,

584 & n.4 (1982) ("Consciousness of guilt instructions are

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permissible when there is an 'inference of guilt that may be

drawn from evidence of flight, concealment, or similar acts'").

Judgments affirmed.

By the Court (Massing, Hand &
Smyth, JJ.2),

Clerk

Entered: October 25, 2024.

2 The panelists are listed in order of seniority.

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