Commonwealth v. Gerald Eddington.

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-348

COMMONWEALTH

vs.

GERALD EDDINGTON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury found the defendant guilty of assault

and battery (count one), assault on a family or household member

(count two), assault and battery with a dangerous weapon (count

three), armed assault in a dwelling (count four), and mayhem

(count five). Subsequently, the defendant was convicted after a

jury-waived trial of sentencing enhancements on counts three

through five.

The defendant raises several claims on appeal: (1) he is

entitled to required findings of not guilty on count two due to

an error on the verdict slip, and count four due to the

insufficiency of the evidence, (2) the trial judge abused her

discretion in not excusing jurors exposed to extraneous
influence and in rendering several evidentiary decisions, and

(3) his convictions on counts one and three are duplicative of

his conviction on count five, as they were all based on the same

conduct, an argument to which the Commonwealth concedes.1 We

reverse the convictions on counts one and three as they are

duplicative of count five.2 In all other aspects, we affirm.

Background. We summarize the facts in the light most

favorable to the Commonwealth. See Commonwealth v. Lopez, 484

Mass. 211, 211 (2020). The victim lived in Springfield with her

four children. The defendant is the father of one of those

children. The defendant and the victim had known each other for

approximately sixteen years and had been in a relationship, but

not for the five years prior to the trial. Although the

defendant rarely visited the victim's home and never visited

1 The Commonwealth concedes as much, and having conducted an
independent examination of the issue, we agree. See
Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010).

2 Although we reverse the judgments as to counts one and
three, we do not remand for resentencing. The defendant
received a twenty-year sentence followed by a five-year term of
probation, and the trial judge clearly indicated an intent "to
sentence [the defendant] to the 20 years on the mayhem charge"
and subsequent "probation on the armed assault in a dwelling"
charge, both of which we affirm. See Commonwealth v. Mattier
(No. 2), 474 Mass. 261, 277 (2016) ("[w]e do not remand to the
Superior Court for resentencing, where [the defendant]'s
sentence is unlikely to be affected by our decision").

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with their shared daughter, he and the victim did occasionally

communicate by telephone.

One night while the victim was at work, the defendant

entered the victim's home, having been let in by one of the

victim's daughters who resided there. The defendant entered the

victim's bedroom, and the daughter called the victim to inform

her that the defendant was at the house. When the victim

arrived home, she found the defendant in the bathroom where he

was rambling, pacing, and mumbling incoherently. The defendant

called the police.

When the police arrived, they took no action, as the victim

agreed to drive the defendant to his own home. The defendant's

aberrant behavior persisted during the drive, prompting the

victim to stop at a gas station and attempt to drop him off

there. The defendant began yelling and jumped on the hood of

the car. After he reentered the car, the victim drove him to

his home. However, the defendant began kicking the car and

refused to exit it. Ultimately, the victim drove back to her

own home, leaving the defendant pacing in her driveway when she

went inside.

Subsequently, the defendant entered the victim's bedroom,

began talking at the victim, then said he would leave. The

defendant left the room, and the victim lay down in her bed.

The defendant reentered the room and dove onto the bed. The

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victim fell off the bed, and the defendant dove onto her,

stabbing her on her arms and face with a pocketknife. One of

the victim's daughters witnessed the stabbing and called 911.

The victim passed out; when she awoke, she saw a pocketknife on

the floor which she recognized as the defendant's. After the

defendant left, paramedics responded, finding the victim with

multiple lacerations on her arms and legs and a significant

laceration on her forehead.

Discussion. 1. Sufficiency of the evidence of count

four. The elements of armed assault in a dwelling are (1) entry

of a dwelling while armed, (2) an assault on someone in the

dwelling, and (3) specific intent to commit a felony. See

Commonwealth v. Putnam, 75 Mass. App. Ct. 472, 476-477 (2009).

The defendant argues that his entry into the victim's house was

consensual and therefore not unlawful. See id. at 477. We

disagree.

Viewing the evidence in the light most favorable to the

Commonwealth, the jury could have permissibly inferred that the

defendant's entry was unauthorized. See Commonwealth v.

Lattimore, 378 Mass. 671, 677-678 (1979); Commonwealth v.

Oviedo, 102 Mass. App. Ct. 78, 79-80 (2023). The victim had not

been in a romantic relationship with the defendant for five

years. He rarely came to the victim's house, and he never

visited with their shared daughter. The victim had spent much

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of the evening attempting to remove the defendant from her home

by driving him to his own home. And immediately prior to the

entry, the victim left the defendant in her driveway, entered

her home, checked on her sleeping children, and changed into her

pajamas to go to sleep. This evidence was sufficient for the

jury to infer that the entry was unauthorized.3

2. Evidentiary rulings. a. Admission of 911 call. The

defendant challenges the admission into evidence of the 911 call

the victim's daughter made to the police after seeing the

defendant stab her mother. While defense counsel did "not

dispute that a large majority of the 911 call constitutes an

excited utterance," counsel did object to the daughter's

statement, "I need Gerald Eddington arrested right now." We

discern no error.

An excited utterance is admissible "if (1) there is an

occurrence or event sufficiently startling to render inoperative

the normal reflective thought processes of the observer, and (2)

if the declarant's statement was a spontaneous reaction to the

occurrence or event and not the result of reflective thought"

(citation omitted). Commonwealth v. Alcantara, 471 Mass. 550,

3 The defendant does not challenge the sufficiency of the
evidence to support any other element of the charge, thus
waiving any challenge as to those elements. See Commonwealth v.
Anderson, 445 Mass. 195, 214-215 (2005); Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

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558 (2015). "[A] judge's discretionary decision constitutes an

abuse of discretion where . . . the judge made a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives" (quotation omitted). L.L. v. Commonwealth, 470

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

The daughter's statement was based on her own observations

made while witnessing the defendant stab her mother. See

Commonwealth v. King, 436 Mass. 252, 255 (2002). The recording

permits the reasonable inference that this statement was a

spontaneous reaction to seeing the stabbing. We conclude that

the judge did not abuse her discretion in finding that the

statement qualified as an excited utterance.4

b. Evidence of defendant's prior bad acts. The defendant

claims that the Commonwealth introduced multiple episodes of the

defendant's prior bad acts, causing undue prejudice to the

defendant. The defendant points to two statements suggesting

his history of incarceration. In response to the prosecutor's

direct-examination question, "[F]or about how long were you

4 For the first time on appeal, the defendant argues that
the daughter's statement should have been excluded because its
probative value is substantially outweighed by the risk of
unfair prejudice. See Mass. G. Evid. § 403 (2025). The judge
did not act outside the reasonable range of alternatives by
failing to, sua sponte, exclude the probative evidence of the
911 call, thus there was no error in its admission.

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romantically involved with [the defendant]?", the victim

replied, "Off and on whenever he wasn't in jail." And in

response to defense counsel's cross-examination question about

the defendant spending time with his daughter, the victim

replied, "Mr. Eddington never spent time with his daughter when

he came home this time." Neither response triggered an

objection nor a motion to strike.5

We conclude that the statements were admitted in error, but

because the defendant did not object or move to strike the

evidence, we review to determine whether the admitted statements

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Sullivan, 76 Mass. App. Ct. 864, 871 (2010).

"Evidence of a defendant's prior or subsequent bad acts is

inadmissible for the purpose of demonstrating the defendant's

bad character or propensity to commit the crimes charged."

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Although

5 The defendant also points to the victim's stricken
testimony that she had been "beat[en] . . . for years" as
accumulating to prejudice. "[I]n response to the jury's
exposure to inadmissible evidence, the judge may correctly
rel[y] on curative instructions as an adequate means to correct
any error and to remedy any prejudice to the defendant"
(quotation and citation omitted). Commonwealth v. Torres, 86
Mass. App. Ct. 272, 280 (2014). The judge struck the victim's
statement, instructed the jury to disregard it, and again
instructed the jury at the close of trial to "not consider any
question and answer that [she] ha[d] struck from the record."
"Jurors are presumed to follow a judge's clear instructions and
disregard [stricken] testimony," Commonwealth v. Auclair, 444
Mass. 348, 358 (2005), and so we find no prejudice here.

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the prosecutor's question attempted to show the relationship

between the defendant and the victim, the answer which

referenced the defendant being in jail had very little, if any,

relevance. Even if there were some slight relevance, such

evidence should "not be admitted if its probative value is

outweighed by the risk of unfair prejudice to the defendant."

Commonwealth v. Almeida, 479 Mass. 562, 568 (2018), quoting

Crayton, supra. The answers should have been stricken.

However, the properly admitted evidence against the

defendant was strong, including the testimony of two

eyewitnesses and DNA evidence tying the defendant to the

pocketknife used in the assault. We conclude that both phrases

indicating that the defendant had been previously incarcerated

did not create a risk that the trial would have been different

without the testimony. See Commonwealth v. Azar, 435 Mass. 675,

687 (2002). Accordingly, there was no substantial risk of a

miscarriage of justice.

c. Exclusion of false allegations of the victim. The

defendant argues that the trial judge committed reversible error

by precluding him from questioning the victim about allegedly

false allegations she made about her mother threatening and

hurting her. There was no error.

"The specific acts of misconduct of a witness, not material

to the case in which she testifies, are ordinarily inadmissible

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on cross-examination to impeach her credibility." Commonwealth

v. Martin, 467 Mass. 291, 311 (2014); see Mass. G. Evid.

§ 608 (b) (2025).6 Additionally, judges have "broad latitude to

direct the course of a trial" via limiting cross-examination,

Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003), with

express "discretion to limit questions that involve collateral

issues and questions where the connection to the evidence of

bias is too speculative," Commonwealth v. Chicas, 481 Mass. 316,

320 (2019). The judge's restriction was permissible and within

her discretion; even if it were not, as the defendant made no

offer of proof that the victim's allegations were false, he

cannot show that the limitation was prejudicial. See

Commonwealth v. Syrafos, 38 Mass. App. Ct. 211, 219 (1995).

d. Failure to remove a juror. The defendant claims the

trial judge denied her an impartial jury by failing to remove a

juror who witnessed an altercation outside the court room

concerning a party to the case. The Sixth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights guarantee a criminal defendant a trial

before an impartial jury, and the presence of a single partial

6 The narrow exceptions to this general rule do not apply
because the witness was not a police officer or a victim of
sexual assault. See Matter of a Grand Jury Investigation, 485
Mass. 641, 651-652 (2020); Commonwealth v. Bohannon, 376 Mass.
90, 94 (1978), S.C., 385 Mass. 733 (1982).

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juror violates this right. Commonwealth v. Colon, 482 Mass.

162, 167 (2019). Extraneous influence includes information not

presented at trial, and a juror's exposure to such influence

"present[s] a serious question of possible prejudice" (quotation

and citation omitted). Id. "If a trial judge learns of such an

[extraneous} influence, the judge must determine whether the

jurors remain impartial and, if not, what remedy is required."

Id. at 168. The trial judge's determination regarding the

impartiality of a juror after questioning by the judge is

granted "great deference" on appeal and will be set aside only

if clearly erroneous or upon a showing of a clear abuse of

discretion. Id.

Here, the trial judge did everything required. After

learning that jurors may have seen an altercation outside the

court room, she questioned all of the jurors, and then made a

finding that the statements of the juror at issue were credible

and that all of the jurors remained indifferent.7 There is

nothing to suggest that her determinations were clearly

erroneous. Colon, 482 Mass. at 168.

7 Defendant's trial counsel did not seek to remove any juror
because of any inconsistencies between their reports. In fact,
trial counsel stated that any discrepancies between the jurors'
reports were a "semantics challenge." Any appellate argument
that any of the jurors should have been excluded is waived.

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3. Verdict slip on count two. The indictment on count two

charged the defendant with "assault or assault and battery on

family or household member." The judge instructed the jury on

the latter charge but not on the lesser included offense of

assault. The verdict slip on count two was only captioned

"assault on a family or household member" entirely omitting any

reference to assault and battery. There was no objection to the

judge's jury instructions, and prior to the verdict slip going

into the jury room, defense counsel expressed satisfaction with

the slip.

There is no merit to the defendant's claim that he is

entitled to a required finding of not guilty on count two. When

an unpreserved claim of error relates to an element of an

offense, a new trial is not necessary where the omitted or

erroneously stated element can be ineluctably inferred from the

evidence. See Commonwealth v. Desiderio, 491 Mass. 809, 816

(2023). Here, while the judge did not instruct the jury on

assault regarding count two, she did instruct the jury regarding

assault in conjunction with count four.

Although the judge should have instructed on the lesser

included offense of assault in conjunction with count two, we

conclude there was no substantial risk of a miscarriage of

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justice where the jurors were instructed on the elements of

assault as part of the instructions to count four.

Conclusion. On the indictments charging assault and

battery (count one) and assault and battery with a dangerous

weapon (count three), the judgments are reversed, the verdicts

are set aside, and the indictments are to be dismissed. On the

indictments charging assault on a family or household member

(count two), armed assault in a dwelling (count four), and

mayhem (count five), the judgments are affirmed.

So ordered.

By the Court (Desmond,
D'Angelo & Smyth, JJ.8),

Clerk

Entered: February 5, 2026.

8 The panelists are listed in order of seniority.

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