Commonwealth v. Behnam Parvaresh.

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-1494

COMMONWEALTH

vs.

BEHNAM PARVARESH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

Behnam Parvaresh, was convicted of assault and battery on a

family or household member, G. L. c. 265, § 13M (a), and

strangulation, G. L. c. 265, § 15D (b).1 The defendant filed a

motion for a new trial on the strangulation conviction, arguing

that he received ineffective assistance of counsel because trial

counsel failed to investigate and call an expert witness to

rebut evidence of injuries to the victim's neck that

corroborated the victim's allegations of strangulation. The

motion judge, who was not the trial judge, denied the

1The defendant was acquitted of two other charges: witness
intimidation, G. L. c. 268, § 13B, and assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (b).
defendant's motion for a new trial without an evidentiary

hearing. The defendant's direct appeal from his convictions and

his appeal from the order denying his motion for a new trial

were consolidated in this court. On appeal, the defendant

argues that the motion judge erred in denying his motion for a

new trial and that the trial judge erred in the admission of

certain evidence. We affirm.

Discussion. 1. Ineffective assistance of counsel. Trial

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). When the ineffective

assistance claim is "based on a tactical or strategic decision,

the test is whether the decision was 'manifestly unreasonable

when made'" (quotation omitted). 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,

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186-187 (2005). Finally, "[a]bsent a constitutional error, we

review the denial of a motion for a new trial for an abuse of

discretion." Commonwealth v. Corey, 493 Mass. 674, 684 (2024).

At trial, the Commonwealth introduced (1) the victim's

testimony that the defendant strangled her; (2) medical records

made by the treating physician and nurse; and (3) photographs of

the victim's neck and limbs taken at the emergency room. During

trial, the defendant's theory of the case was that the victim

fabricated the allegations against him. Through effective

cross-examination, trial counsel raised the issue of reasonable

doubt as to how the victim's injuries were caused, focusing on

various apparent inconsistencies of when the scratches were seen

on the victim's neck.

The defendant now argues that trial counsel provided

ineffective assistance by failing to consult with a medical

expert to rebut the Commonwealth's evidence of the victim's

injuries to her neck, which corroborated the victim's testimony

that the defendant grabbed her by the neck and applied pressure.

In support of his motion for a new trial, the defendant offered

the affidavit of Dr. Christian Klaucke, an emergency room

doctor, who reviewed the trial evidence and the medical

literature. In the affidavit, the defendant's expert opined

that the timing of the markings on the victim's neck were

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inconsistent with "an alleged non-lethal strangulation event

occurring just prior to [the victim making] the 911 call."

The defendant also submitted an affidavit from trial

counsel, who stated that he considered calling a medical expert

but decided against it. Trial counsel explained that he was

reluctant to argue that the victim caused the injuries to

herself, fearing that he would alienate the jury. Instead,

trial counsel chose to focus on cross-examination of a nurse

regarding the absence of notes in the medical file about

scratches or abrasions to the victim's neck when she arrived at

the hospital and attempted to focus the jury's attention on the

existence of reasonable doubt.2

The defendant has failed to demonstrate that trial

counsel's approach was manifestly unreasonable or that he was

deprived of an otherwise available substantial ground of

defense.3 First, the victim's injuries were not so complex as to

2 We note that this strategy proved effective as the
defendant was acquitted of charges of assault and battery by
means of a dangerous weapon and intimidation of a witness.

3 The defendant also argues that the motion judge abused his
discretion by denying the defendant's request for an evidentiary
hearing on the motion for new trial. It was not an abuse of
discretion for the motion judge to decline to conduct an
evidentiary hearing where, as here, the motion was thoroughly
briefed and, for the reasons discussed herein, the motion and
affidavits did not make an adequate showing that would raise a
substantial issue. See Mass. R. Crim. P. 30 (c) (3), as
appearing in 435 Mass. 1501 (2001). See also Commonwealth v.

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render trial counsel's failure to call an expert medical witness

manifestly unreasonable. Cf. Commonwealth v. Baran, 74 Mass.

App. Ct. 256, 277-278 (2009) (ineffective assistance of counsel

not to hire expert where prosecutor called three physicians and

child psychotherapist). Here, the defendant's expert noted that

"[a] fair-skinned individual . . . can actually demonstrate the

rapid timing of an abrasion's appearance on themselves by simply

scratching their own forearm with a fingernail." The expert

also acknowledged that a review of the medical literature

suggests that up to forty percent of non-fatal strangulation

injuries have no external signs. Therefore, the absence or

presence of abrasions and scratches is not dispositive of

whether the victim was strangled.

Second, there is no requirement that trial counsel present

expert medical evidence to support an argument, "especially

where other evidence is presented to support it." Commonwealth

v. Hensley, 454 Mass. 721, 736 (2009). Through cross-

examination of the witnesses and admission of the victim's

medical records, trial counsel effectively raised the issue as

to whether the victim's neck injuries occurred before or after

the police arrived. Trial counsel underscored this argument in

Goodreau, 442 Mass. 341, 348-349 (2004) (judge may exercise
discretion in declining to hold evidentiary hearing where
"theory of the motion, as presented by the papers, is not
credible or not persuasive").

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his closing statement, vigorously arguing that the victim's

testimony was not credible and that the jury should credit the

testimony of several other witnesses who did not observe

scratches or injuries to the victim's neck.

Further, the defendant has not shown that an expert opinion

such as that of Dr. Klaucke would have added materially to the

defendant's case. Expert opinion testimony such as

Dr. Klaucke's on whether the injuries to the victim's neck were

self-inflicted would not have materially added to the

defendant's case and in fact may have even weakened it. In his

affidavit, Dr. Klaucke opined that the victim's injuries were

inconsistent with having been caused by the victim through

defending herself against an attack by the defendant. At best,

this opinion was immaterial as there was no testimony or theory

presented to the jury that the victim's injuries were caused by

the victim when she was defending herself.

As far as the timing of the scratches to the victim's neck,

which would support the defense theory that the injuries were

not caused by the defendant, Dr. Klaucke's testimony did little,

if anything, to assist the defense. Dr. Klaucke acknowledged

that "there are no robust studies measuring the timing of

abrasion appearance in the acute phase (seconds to minutes)

after injury to the skin." Further, Dr. Klauke's expert opinion

about when the victim sustained neck injuries was based solely

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on his accepting the testimony of one witness and disregarding

both the victim's testimony and that of a police officer who

arrived on the scene.

Finally, we note that the charge of strangulation did not

solely rest on the scratches to the victim's neck. The victim

testified that the defendant squeezed her neck and, in so doing,

made it difficult for her to breathe and to speak. Based upon

the above, the failure to call a medical expert was not

manifestly unreasonable and, accordingly, it was not an abuse of

discretion for the motion judge to deny the defendant's motion

for a new trial.

2. Prior bad acts. At trial, the victim was allowed to

testify that soon after she married the defendant, the nature of

her relationship with him changed. She testified that after she

moved from Iran to the United States, the defendant threatened

to burn her passport, told her that "Mr. Trump is not good with

Iranian[s]," and told her that the police were racist and killed

Iranians. She also testified that the defendant had kicked and

punched her in the past to the point of bruising.

The defendant claims that the judge abused her discretion

because the probative value of this evidence was outweighed by

the risk of unfair prejudice. While evidence of prior bad acts

is not admissible to show a defendant's bad character or

propensity to commit a crime, it may be admissible for another

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purpose. In the context of domestic violence, it may be

admissible to prove the existence of a hostile relationship

between the defendant and the victim. See Commonwealth v.

Oberle, 476 Mass. 539, 550 (2017). The evidence of the

defendant's prior bad acts, which was limited to several months

before the crime, was relevant to provide the jury with a

complete picture of the incident and the nature of the

relationship between the parties. Moreover, the judge

instructed the jury that they were to consider the testimony

only as evidence of the victim's perception of the relationship

and that they could not consider it for propensity purposes or

as evidence of character, bad behavior, or criminal conduct.

Finally, while we agree with the defendant that the trial

judge deviated from the model jury instruction, her limiting

instructions for the prior bad act evidence was nevertheless

proper and effectively minimized any potential prejudice. To

the extent that the instructions strayed from the model jury

instructions by allowing the victim's testimony about the

defendant's prior bad acts only for the victim's "perception" of

the nature of their relationship, the defendant was not harmed

but rather was the beneficiary of that limitation.

3. Admission of victim's call to 911. The Commonwealth

moved in limine for the admission of the victim's recorded

statements in her call to 911. The judge denied the motion

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without prejudice, ruling that the 911 call did not qualify as

an excited utterance. At trial, the Commonwealth once again

moved to introduce the 911 call, this time not for the truth of

the matter, but rather to establish that the victim had in fact

called 911. The defendant objected. The judge allowed the

admission of the 911 recording, but before the audio recording

was played to the jury, provided the jury with a limiting

instruction. On appeal, the defendant argues that the judge

erred in the admission of the 911 call and that the judge's

improper limiting instruction compounded this error.

Assuming without deciding that the admission of the 911

call was in error, the defendant suffered no prejudice as the

911 call did not inculpate the defendant. The brief audio

recording played to the jury consisted of the victim providing

her address, telling the 911 operator that she could not speak

English and that she needed help. These statements were

cumulative of the trial testimony, as both the victim and the

responding officers testified without objection about the fact

that 911 was called.

Although he did not object at trial, the defendant now

claims that judge's limiting instruction allowed the jury to

consider the recorded statements for the truth of the matter

asserted. When read as a whole, the judge's instruction

correctly conveyed to the jury that the evidence "is only being

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admitted to establish that . . . she did make a call to the

police department. That's the purpose for which this is being

admitted." Given the nature of the statements in the 911

recording, even if the jury improperly considered her statements

for the truth of the matter asserted, there was no prejudice to

the defendant. It bears repeating that her statements did not

inculpate him: she said she needed help, provided her address,

and explained that she did not speak English.

4. Admission of testimony of victim's physical gestures.

At trial, a police officer testified that when he arrived at the

scene, the victim pointed to the defendant and made a gesture

with her hands around her neck. The defendant did not object to

this testimony, so we review for a substantial risk of a

miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 17

(1999).

We find no substantial risk of a miscarriage of justice, as

the testimony that the police officer saw the victim, who did

not speak English, gesturing with her hands to her neck was

cumulative of the victim's testimony at trial. The properly

admitted trial testimony of the victim was that the defendant

placed both of his hands around her neck and squeezed. The

Commonwealth also adduced testimony from the next-door neighbor,

who was present when the police arrived, that when she first saw

the victim, she repeatedly told her "Behnam choke." In

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addition, the police officer testified that after seeing the

victim gesturing with her hands, the defendant was immediately

placed under arrest. The defendant seized upon this evidence,

forcefully arguing to the jury that the police rushed to

judgment and failed to properly investigate the victim's

allegations. This evidence also supported the defendant's

successful request for a Bowden instruction. See Commonwealth

v. Bowden, 379 Mass. 472, 485-486 (1980). There was no harm to

the defendant, where, as here, the evidence was cumulative and

more important to the defense than to the Commonwealth. See

Commonwealth v. Nardi, 452 Mass. 379, 395–396 (2008)

(erroneously admitted testimony was equally, if not more,

important to defense and therefore did not create substantial

likelihood of miscarriage of justice). See also Commonwealth v.

McCoy, 456 Mass. 838, 851 (2010).

Judgments affirmed.

Order denying motion for new
trial affirmed.

By the Court (Ditkoff, Hand &
Walsh, JJ.4),

Clerk

Entered: May 27, 2025.

4 The panelists are listed in order of seniority.

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