Commonwealth v. Gamaliel T. Madelon.

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-1324

COMMONWEALTH

vs.

GAMALIEL T. MADELON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the

defendant, Gamaliel Madelon, was convicted of assault and

battery, in violation of G. L. c. 265, § 13A (a). On appeal, he

contends that the trial judge erred in (1) denying his motion

for a required finding of not guilty where the date of offense

referenced at trial varied from the date of offense alleged in

the criminal complaint, and (2) allowing a detective to testify

about a telephone conversation he had with the defendant. We

affirm.

Background. At trial, the prosecutor asked the victim to

describe events that occurred on "April 29th of 2020."1 In

1The prosecutor also referred to April 29, 2020, as the
date of offense during his opening statement and during direct
examination of an eyewitness. The defendant did not object to
either reference.
response, the victim described an incident that occurred on

Boylston Street in Boston during which the victim "honked" the

horn of his car while stopped in traffic behind the defendant's

car. The victim "exited [his] car to see what's going on," and

"[a]t the same time," the defendant "came out of his car." The

victim asked the defendant, "Why aren't you moving? You blocked

the way." The defendant responded by grabbing the victim's

shirt near his throat and punching him in the face and head. At

some point, the defendant stopped striking the victim, returned

to his car, and drove away. The victim then used his cell phone

to take a photograph of the car driven by the defendant and its

license plate.2

Later at trial, the prosecutor asked Boston Police

Detective Michael Nucci about his investigation into an incident

that occurred on "April 29th of 2020."3 Detective Nucci

testified that the victim provided him with a video and

photograph depicting the "license plate attached to the vehicle

in question." Detective Nucci entered the license plate into a

database and found that it was registered to the defendant. He

then searched a "subsequent database" and obtained a telephone

The victim's version of events was further corroborated by
2

the testimony of the eyewitness, who saw the incident and
"called 911" to report what he had witnessed.

3 The defendant did not object to this reference as well.

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number for the defendant. Detective Nucci called the number and

"inquired as to who [he] was speaking with" and if he was

"speaking with the registered owner of the vehicle." The

defendant acknowledged that he was "Gamaliel Madelon," that he

was the registered owner of the vehicle in question, and that he

was involved in a "physical altercation at the date and location

in question." The defendant also "indicated that he felt that

he was being attacked and that he was defending himself."

The defense at trial centered on self-defense. The

defendant moved for a required finding of not guilty following

the close of the Commonwealth's case, arguing, in part, that the

Commonwealth alleged an incident date of April 18, but the

witnesses testified that the event occurred on April 29. The

judge denied the motion. The defendant renewed the motion for a

required finding of not guilty at the close of all evidence,

which the judge likewise denied. The jury found the defendant

guilty of assault and battery. This appeal ensued.

Discussion. 1. Variance. The criminal complaint listed

April 18, 2020, as the date of offense. As noted above, the

prosecutor referred to the date of offense as April 29, 2020,

during his opening statement and direct examinations. The

defendant argues that he was prejudiced by lack of notice of the

date of the crime. The claim is unavailing.

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"[A] variance between the allegations and proof shall not

be a ground for the defendant's acquittal 'if the essential

elements of the crime are correctly stated, unless he is thereby

prejudiced in his defence.'" Commonwealth v. Day, 387 Mass.

915, 922 (1983), quoting G. L. c. 277, § 35. "The time alleged

for an offense is ordinarily treated as a matter of detail

rather than substance . . . . [T]here will be no fatal variance

if the Commonwealth has alleged one time for the commission of

an offense and proves that it occurred, but at another time"

(citations omitted). Commonwealth v. Campiti, 41 Mass. App. Ct.

43, 50 (1996).

Here, where the date of offense was not an essential

element of the crime alleged, the defendant has not demonstrated

that his defense was prejudiced by the variance. From the

criminal complaint, the defendant was provided notice that he

was charged with assault and battery based on the incident with

the victim, at Boylston Street and Massachusetts Avenue.

Further, had defense counsel believed that the Commonwealth was

proceeding on a theory that the incident occurred on April 29,

2020, he could have used the discrepancy to his advantage during

cross-examination or during closing argument. Instead, while

cross-examining the victim, rather than exploit the

Commonwealth's error, defense counsel referred to "the events of

April 29th of 2020." Seemingly recognizing that the discrepancy

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was a misstatement by the Commonwealth, defense counsel did not

mention the date in his closing argument.

Moreover, as to what prejudice the error caused, the

defendant claims only that the variance may have precluded him

from asserting an alibi defense. This argument is unpersuasive

where the defendant made no proffer -- at trial or on appeal --

as to the possible existence or viability of such a defense.

Furthermore, he did not file a motion for a new trial through

which he could have attempted to present facts, witnesses, and

specifics to support an alibi defense. See Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). Accordingly, we

are confident that the alleged variance did not impact the trial

or prejudice the defense.

2. Telephone conversation testimony. a. Authentication.

The defendant contends that Detective Nucci's testimony

regarding his telephone conversation with the defendant was not

adequately authenticated and thus was not properly admitted as

an admission by a party opponent. Again, we disagree.

"An extrajudicial statement made by a party opponent is an

exception to the rule against the introduction of hearsay, and

is admissible unless subject to exclusion on other grounds."

Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). See Mass. G.

Evid. § 801(d)(2)(A) (2022). "Whether a statement qualifies as

an admission by a party opponent is a preliminary question of

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fact for the judge, to be decided by a preponderance of the

evidence." Commonwealth v. Gray, 80 Mass. App. Ct. 98, 101

(2011). A judge "may look to 'confirming circumstances' that

would allow a reasonable jury to conclude that this evidence is

what its proponent claims it to be." Commonwealth v. Purdy, 459

Mass. 442, 449 (2011). "In the context of telephone

conversations, where a witness has received a telephone call and

cannot identify the caller's voice, evidence that the caller

identified himself as the defendant is not sufficient to

authenticate the conversation." Id. However, "confirming

circumstances" may provide sufficient evidence that the

defendant was the one who answered the telephone call. Id. We

review the judge's ruling for an abuse of discretion. See

Commonwealth v. Meola, 95 Mass. App. Ct. 303, 309 (2019).

Here, there were sufficient confirming circumstances to

allow a reasonable jury to find by a preponderance of the

evidence that the defendant was the person with whom the

detective spoke on the telephone. Detective Nucci used the

license plate number provided to him by the victim to identify

the defendant as the registered owner of the vehicle.4 Using

that information, Detective Nucci obtained a telephone number

4 The photograph taken by the victim, depicting the
defendant's vehicle and license plate, was admitted in evidence
at trial.

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for the defendant. On the telephone call, the defendant

confirmed his name, his status as the registered owner of the

car, and his involvement in the altercation that he was

investigating. Taken together, these facts provide sufficient

confirming circumstances that it was more likely than not that

the defendant was the person with whom the detective spoke.

Thus, the judge did not err in allowing the detective to testify

about the defendant's conversation. See Commonwealth v. Loach,

46 Mass. App. Ct. 313, 316 (1999). See also Commonwealth v.

Wojcik, 43 Mass. App. Ct. 595, 606-607 (1997), quoting

Commonwealth v. Anderson, 404 Mass. 767, 770 (1989) ("A

telephone conversation between a witness and a person the

witness had never met may be admitted when confirming

circumstances tend to authenticate the identity of the other

person, even if . . . the witness does not recognize the

voice").

b. Voluntariness of the defendant's statements. The

defendant also contends that his statements during the telephone

call with the detective were involuntary and thus were

improperly admitted at trial. As the defendant did not raise

the issue of voluntariness in his motion in limine or at trial,

our review is limited to whether there was any error, and if so,

whether that error created a substantial risk of a miscarriage

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of justice. See Commonwealth v. Bohigian, 486 Mass. 209, 219

(2020).

Where a defendant did not raise the issue of the

voluntariness of his statements at trial, a judge is obligated

to conduct a voir dire hearing sua sponte "only where there is

evidence of a substantial claim of involuntariness . . . and

where voluntariness is a live issue at the trial." Commonwealth

v. Stroyny, 435 Mass. 635, 646 (2002). If, after conducting a

voir dire hearing, the judge concludes that the statement is

voluntary, "the issue of voluntariness must be submitted to the

jury." Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007). If a

claim of involuntariness "is not a 'live issue' at trial, there

is no obligation for the judge either to conduct a voir dire, or

to instruct the jury on the humane practice rule." Commonwealth

v. Pavao, 46 Mass. App. Ct. 271, 274 (1999).

Here, the defendant failed to raise the issue of the

voluntariness of his statements, and thus the judge was not

required to conduct a voir dire unless there was a substantial

claim of involuntariness. See Pavao, 46 Mass. App. Ct. at 273-

274. The fact that the defendant was "not informed of [his]

right not to answer any questions or given time to consider

whether to make a statement" did not create a "substantial claim

of involuntariness," id. at 274 (citation omitted). The

defendant was not in custody, the conversation occurred over the

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telephone, and the communication lacked the formality and

indicia of custodial interrogation. "[B]ecause no 'substantial

claim of involuntariness' arose during the trial, the judge did

not err in failing to act sua sponte." Commonwealth v. Cutts,

444 Mass. 821, 833 (2005).

Judgment affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.5),

Clerk

Entered: January 17, 2025.

5 The panelists are listed in order of seniority.

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