Commonwealth v. Nathaniel J. Tatro.

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-2 6

COMMONWEALTH

vs.

NATHANIEL J. TATRO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted after a jury trial in the

District Court for violating a harassment prevention order. See

G. L. c. 258E, § 9. On appeal from the conviction and from the

denial of his motion for a new trial, he claims error in the

jury instructions and in the Commonwealth's closing argument, as

well as ineffective assistance of trial counsel. We affirm.

Discussion. 1. Jury instructions. The defendant argues

that he is entitled to a new trial because the trial judge's

instruction on accidental contact, taken from the District Court

model jury instructions, referred to the incident as a "contact

or encounter." The defendant contends that the use of the word

"contact" permitted the jury to convict him based on his

sister's yelling at the victim. Because the defendant did not

object to the instruction at trial, we review to determine
whether any error in the instruction resulted in a substantial

risk of a miscarriage of justice. See Commonwealth v. Federico,

70 Mass. App. Ct. 711, 719 (2007).

We assess the adequacy of the instructions "in light of

their over-all impact on the jury." Commonwealth v. Niemic, 427

Mass. 718, 720 (1998), quoting Commonwealth v. Galford, 413

Mass. 364, 371-372 (1992), cert, denied, 506 U.S. 1065 (1993).

"We evaluate the instruction as a whole, looking for the

interpretation a reasonable juror would place on the judge's

words. We [do] not . . . scrutiniz[e] bits and pieces removed

from their context" (quotations and citations omitted). Niemic,

supra. "[A] verdict cannot stand unless it appears that the

jury reached their verdict on a theory for which there was

factual support." Commonwealth v. Plunkett, 422 Mass. 634, 635

(1996) .

During the charge conference, the judge explained to

counsel that he would not instruct on third-party contact

because the evidence did not support the theory that the

defendant violated the order by contacting the victim through

his sister. The judge commented, however, that the evidence

that the defendant stood by while his sister was yelling at the

victim was relevant to whether his presence was accidental. In

closing argument the prosecutor emphasized that the defendant

was required to stay one hundred yards away, comparing that

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distance to the size of a football field. When the prosecutor

did refer to the sister's conduct, as the judge had specifically

permitted, these references were all tied to the defendant's

proximity to the victim.1

The judge instructed that for the jury to find the

defendant guilty, the Commonwealth had to prove four things

beyond a reasonable doubt: (1) that a court had issued an order

pursuant to c. 258E "which ordered the Defendant to stay a

particular distance away" from the victim; (2) that the order

was in effect on the date of the alleged violation; (3) "that

the Defendant violated the order by failing to stay a particular

distance away from" the victim; and (4) that the defendant knew

that "the pertinent terms" of the order were in effect.

Immediately after instructing the jury that they had to

find that the defendant violated the order by failing to stay a

particular distance away from the victim, the judge gave the

supplemental model jury instruction on accidental contact. See

Instruction 6.740 of the Criminal Model Jury Instructions for

1 The prosecutor stated that "the Defendant, along with his
sister and another individual, intentionally reapproached" the
victim; that "he was merely feet away from her with two other
people in an argument, pointing in her direction"; and that he
was "[m]erely feet away, and he continued to make eye contact
with [the victim] while an argument ensued between his sister
and [the victim]." This argument was proper, and the lack of
objection from defense counsel thus cannot support a claim of
ineffective assistance.

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Use in the District Court (2019). The model instruction gives

trial judges the choice of referring to an accidental violation

of an order as either an alleged "contact" or "encounter." Each

term is in parentheses, implying that judges are expected to

choose the relevant term or terms. Rather than choosing between

the two terms, however, the trial judge used both, repeatedly

referring to the incident as a "contact or encounter." We

discern no error, let alone any error creating a substantial

risk of a miscarriage of justice.

A reasonable juror -- having just been instructed that the

Commonwealth was required to prove that the defendant failed "to

stay a particular distance away" from the victim -- could not

have understood the instruction on accidental contact to suggest

the possibility of convicting the defendant based on the

sister's conduct. The instruction emphasized that if the

defendant came across the victim by accident, it was his

responsibility to take reasonable steps to end this "contact or

encounter" by removing himself from the victim's proximity.

Although the word "contact," standing alone, could be construed

to apply to either the defendant's or his sister's conduct,2 in

2 The relevant section of the operative c. 258E order, introduced
in evidence, stated, "YOU ARE ORDERED NOT TO CONTACT THE
[victim] either in person, by telephone, in writing or
otherwise, either directly or through someone else, and to stay
at least 100 yards away from the [victim] even if the [victim]
seems to allow or request contact."

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context it could not sensibly be applied to the sister's

conduct. No reasonable juror could conclude that the sister

"accidentally" yelled at the victim, and that this, rather than

his own proximity to the victim, was the "accidental" contact

that the defendant was required to take reasonable steps to end.

The defendant also claims that trial counsel was

ineffective for failing to object or request a curative

instruction. "[W]hen a defendant alleges that his failure to

preserve an issue for appeal stems from ineffective assistance

of counsel, as this defendant has, we do not evaluate the

ineffectiveness claim separately." Commonwealth v. Randolph,

438 Mass. 290, 296 (2002). Instead, "ineffectiveness is

presumed if the attorney's omission created a substantial risk,

and disregarded if it did not." Id. As the instruction did not

create a substantial risk of a miscarriage of justice, the

defendant has failed to prove ineffective assistance.

2. Closing argument. The defendant argues that the

prosecutor's closing argument erroneously extended beyond the

evidence and fair inferences therefrom, see Commonwealth v.

Kelly, 417 Mass. 266, 270 (1994), both when the prosecutor

stated that the defendant pointed in the victim's direction and

when she stated that the defendant "reapproached" the victim.

The defendant further argues that the errors created a

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substantial risk of a miscarriage of justice and that counsel

was ineffective for failing to object.

While the evidence would have supported the statement that

the defendant "approached" the victim when they met at the front

of the store, it does not appear to support the prosecutor's

statement that the defendant "reapproached" her. The victim did

not testify that the defendant approached her when she first

entered the store. The evidence does, however, appear to

support the statement that the defendant pointed his finger at

the victim. In some of the photographs introduced in evidence

the defendant is shown looking and pointing at a woman. The

victim identified the defendant in the photographs, although she

did not specifically testify that she was the woman he was

pointing at. However, the attorneys, the judge, and the jury

could compare the photographs to the defendant and the victim,

who were present in the courtroom, and draw their own

conclusions.

Defense counsel's lack of objections to the prosecutor's

erroneous use of the word "reapproached" or to her

characterization of the photographs suggests that the

prosecutor's statements were not unfairly prejudicial. See

Commonwealth v. Lyons, 426 Mass. 466, 471 (1998); Commonwealth

v. Lugo, 89 Mass. App. Ct. 229, 237 (2016). Furthermore,

although defense counsel filed an affidavit in connection with

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the new trial motion taking responsibility for not objecting at

other points during the trial, the affidavit's silence as to

these two statements is telling. We are confident that the

prosecutor's use of the word "reapproached," and her statement

that the defendant was pointing at the victim, even if it was

error, did not materially influence the jury's determination

that the defendant violated the harassment prevention order by

failing to stay one hundred yards away from the victim. See

Randolph, 438 Mass, at 298; Commonwealth v. Rosa, 73 Mass. App.

Ct. 540, 549 (2009). As there was no substantial risk of a

miscarriage of justice, defense counsel was not ineffective.

See Randolph, supra at 296.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court ('Rubin,
Massing & Desmond, JJ.3),

Assistant Clerk

Entered: December 29, 2023.

3 The panelists are listed in order of seniority.

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