Commonwealth v. Nik Y. Hammond.

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

22-P-218

COMMONWEALTH

vs.

NIK Y. HAMMOND.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions, following a

jury trial in Lowell District Court, on one count of assault and

battery by means of a dangerous weapon, see G. L. c. 265,

§ 15A (b), two counts of assault and battery on a household

member, see G. L. c. 265, § 13M (a), one count of threat to

commit a crime, see G. L. c. 275, § 2, and one count of

strangulation, see G. L. c. 265, § 15D (b). The defendant

argues that reversal of his convictions is warranted because the

Commonwealth gave an improper opening statement, elicited

inadmissible evidence of prior bad acts, elicited inadmissible

testimony about the victim's pregnancy, elicited inadmissible

prior consistent statements, and the court lacked jurisdiction

to adjudicate certain crimes committed in another State. Only

the last contention has merit. We agree that, as the
Commonwealth concedes, two crimes of which the defendant was

convicted -- one count of assault and battery by means of a

dangerous weapon (count 1) and one count of assault and battery

on a household member (count 2) -- were based on conduct that

occurred in Rhode Island, over which our courts lack

jurisdiction. The judgments on counts 1 and 2 are therefore

reversed and those counts shall be dismissed. The convictions

on the remaining counts (counts 3, 4, and 5) are affirmed. We

address each of the defendant's contentions below.

I. Background. a. Facts. In reviewing the defendant's

convictions, we must view the facts in the light most favorable

to the Commonwealth. See Commonwealth v. Vargas, 475 Mass. 338,

340 (2016). The victim testified at trial. The following facts

are taken from her testimony.

The victim began dating the defendant in 2018. In October

2018, the victim learned that she was pregnant. She told the

defendant, and he assured her that they would "figure it out."

He asked that she refrain from telling anyone else. She decided

to tell her parents, believing them an exception to the

defendant's request. The defendant disagreed. Upon learning

that the victim had told her parents about the pregnancy, the

defendant "got mad" and told the victim that she "was definitely

getting an abortion because he told [her] not to tell anybody."

She responded that she did not want an abortion, and he told her

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that was "too bad" and that she "was getting one or he was going

to make sure [she] didn't have the baby." He explained that if

she "had the baby then he was going to rape and kill the baby"

and that he "was going to push [her] down the stairs" and "kick

her stomach so [she] wouldn't have the baby." She decided that

an abortion would be "best."

The relationship continued and, on January 2, 2019, the two

drove to a Burger King restaurant in Rhode Island. In the

parking lot, the defendant became angry without warning. He

grabbed the victim by the hair and "hit [her] head" against the

gear shift. She began speaking, but he told her to "shut up."

She continued speaking, and he told her that if she did not

stop, he would "punch [her] in the face." She continued

speaking, and he punched her in the face.

On July 4, 2019, a male colleague of the victim called her

while she was in bed with the defendant. The defendant was

familiar with the male colleague, as they had initially been

friends, but the two were not on good terms because the

colleague had recently learned that the defendant was abusing

the victim. Concerned that answering the call might "cause[] a

lot of drama," the victim did not answer the call. But the

defendant noticed this and began screaming at the victim,

demanding that she call the male colleague back. She did so,

and the defendant began yelling at the colleague, telling him to

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stay away from the victim and to stop calling her. He then hung

up the phone and began choking the victim.

On August 15, 2019, the victim was in bed while finishing

up laundry and watching television. The defendant came home,

and the victim noticed that he was in a bad mood. She tried to

find out what was wrong, and the defendant became mad, pulled

her hair, and again choked her. She pushed him off, and the two

began yelling at each other, after which the defendant left the

apartment. A few days later, the victim ended the relationship.

b. Proceedings below. 1. The letter. The following

month, while the victim was at work, her manager told her that

the defendant had dropped off a letter for her. Prior to trial,

the Commonwealth moved to introduce the letter, arguing that the

victim was familiar with the defendant's handwriting and could

authenticate the letter as written by him. The defendant argued

that the letter was inadmissible hearsay and could not be

properly authenticated. The trial judge allowed a voir dire of

the victim, who testified that she recognized the handwriting as

the defendant's and that the contents of the letter made sense

in the context of their relationship. See Commonwealth v.

Purdy, 459 Mass. 442, 450 (2011). The judge allowed the

introduction of the letter, subject to the redaction of non-

relevant, prejudicial information. He asked that the parties go

through the document and come to an agreement on a set of

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redactions. After conferring, the parties disagreed as to the

redaction of three parts of the letter, which the defendant

argued were more prejudicial than probative. The judge

overruled the defendant's objections as to all three parts.

The Commonwealth then began its opening statement by

reading the first three sentences of the defendant's letter. 1

The defendant objected, arguing that the Commonwealth's

discussion of the letter was prejudicial and tainted the jury.

The judge responded that the prosecutor had "made a promise. I

don't know if he's going to get that letter in, and we may have

to deal with the consequences of saying that he has a letter

that may not come into evidence in this case. So I note your

objection for the record, but I am going to overrule the

objection."

On the second day of trial, during the direct examination

of the victim, the prosecutor sought to admit the letter in

evidence. The defendant objected, arguing (1) that there was a

1 The prosecutor began his opening statement with the following
remarks. "Dear [victim's name], first and foremost, I just want
to deeply and -- deeply sincerely apologize for my actions and
attitude toward you. I have never written a letter like this,
so I'm sorry if this sucks. For the past two years, I have done
nothing but hurt you, break you and traumatize you." The
prosecutor went on the explain that "[t]hose words [we]re the
words of the defendant in a letter addressed to [the victim]."
We note that the portion of the letter read aloud by the
prosecutor was not one of the portions that the defendant sought
to redact during the motion in limine hearing.

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lack of foundation establishing the defendant as the author of

the letter, and (2) that the letter was hearsay. The trial

judge stated that the foundation argument went to "weight not []

admissibility" but sustained the defendant's hearsay objection.

The Commonwealth argued, unsuccessfully, that having already

cleared the initial hurdle of authentication, the letter was

admissible as a statement by a party opponent and was relevant

because it showed the defendant's consciousness of guilt. The

judge concluded that the substance of the defendant's letter did

not clearly demonstrate consciousness of guilt and did not

necessarily amount to a statement against interest, penal or

otherwise, and that it was therefore hearsay. On that basis, he

excluded the letter.

2. The restraining order. At trial, there were three

instances where testimony was given regarding a restraining

order issued against the defendant. Two instances occurred

during the victim's testimony. The victim mentioned the

restraining order when discussing her decision to report the

abuse to the police and when discussing the letter that the

defendant had written to her. In both instances the defendant

objected, and the court struck the testimony and instructed the

jury to disregard the mention of the restraining order.

The third mention of the restraining order occurred during

the direct examination of the officer responsible for

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investigating the defendant. The officer appeared to

misremember the charges against the defendant and incorrectly

stated that the defendant had been charged with the violation of

a restraining order. The defendant did not object, nor did he

ask for a limiting instruction; instead, after a sidebar, the

officer's recollection was refreshed with his police report and

he testified accurately about the charges that had been at

issue, which did not include a restraining order violation.

3. Jury questions. During deliberations, the jury asked

two questions. First, "[w]as there an aspect of the law that

prohibited the jury from viewing the letter written by the

defendant or any pictures?" Second, "[wa]s the restraining

order applicable evidence to consider? (or separation order)."

The parties agreed that the judge should reiterate the

instruction he had given at the close of evidence; the judge

accordingly repeated to the jury that "the evidence that was

presented to [the jury] is what is before [the jury] and . . .

[the jury are] not to speculate or to guess or to even consider

any evidence that was not something that . . . was evidence in

this case."

4. Sentencing. After the jury's guilty verdicts, the

court sentenced the defendant "as follows: On counts 1, 2, 3

and 5, you will be sentenced to [eighteen] months to the House

of Correction, suspended for one year, with special conditions

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of stay away, no contact, no abuse, abide by the restraining

order and attend and complete certified batterers program. With

regards to count 4, you'll be sentenced to six months to the

House of Correction, suspended for two years, with the special

condition that you stay away, have no contact, no abuse, and

abide by the 209A order."

II. Discussion. a. Opening statement. The defendant's

first argument is that the Commonwealth's opening statement was

improper, as it recounted the inculpatory contents of a letter

that was not admitted in evidence. Because the defendant

objected to the opening statement, we review for prejudicial

error. Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 50

(2003).

As the defendant sets out in his brief, a prosecutor is

"entitled to state in [their] opening whatever [they] reasonably

and in good faith expected to prove by evidence." Commonwealth

v. Errington, 390 Mass. 875, 883 (1984). That the evidence may

not, in the end, be admitted, does not alone render the opening

statement improper. See Commonwealth v. Qualls, 440 Mass. 576,

586 (2003) ("Absent a showing of bad faith or prejudice, which

has not been made, the fact that certain evidence fails to

materialize is not a ground for reversal").

Here, in light of the judge's ruling on the motion in

limine that sought to introduce the letter, the prosecutor

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objectively had a good faith basis to believe that the letter

would be admitted. Therefore, the defendant could not show bad

faith on the part of the prosecutor. We likewise think the

defendant could not show prejudice. Of course, the letter

itself was prejudicial, and the jury were sufficiently aware of

its existence, given that they asked a question about why they

had not been permitted to see it. But that is immaterial where

the judge's ruling excluding the letter was in error. "A

defendant's own statements are admissible as statements of a

party opponent." Commonwealth v. AdonSoto, 475 Mass. 497, 502

(2016), citing Mass. G. Evid. § 801(d)(2)(A) (2016). The letter

-- written by the defendant and offered in evidence by the

Commonwealth -- was not, as the judge concluded, inadmissible

hearsay. 2 Because the letter was erroneously excluded, the

description of it in the prosecutor's opening statement was not

prejudicial.

The defendant also argues that the judge failed, following

the letter's exclusion, to provide an adequate curative

instruction to the Commonwealth's opening statement. The

defendant, however, did not request an instruction or take any

other action in response to the opening argument once the judge

2 The trial judge did express concern about ambiguity in the
letter, but his ruling was not based on a conclusion that the
risk of unfair prejudice outweighed the letter's probative
value.

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ruled that the letter quoted therein was not admissible. The

defendant has not demonstrated that the opening statement

created a substantial risk of a miscarriage of justice. To

begin with, as we have described above, there was no prejudicial

error in the opening statement because the exclusion of the

letter was in error. Even putting that aside, the judge

properly instructed the jury in response to their questions

about the letter, reminding them to disregard anything not in

evidence. See Commonwealth v. Andrade, 468 Mass. 543, 549

(2014) ("The jury are presumed to follow the judge's

instructions").

b. Prior bad acts. 1. Restraining order. The

defendant's next argument is that the judge "erred by allowing

prior bad acts into evidence." The defendant points to

testimony by both the officer and the victim stating that the

defendant had been charged with violation of a restraining

order, arguing that this evidence was impermissibly admitted for

purposes of demonstrating bad character or propensity to engage

in wrongdoing. See Commonwealth v. Bryant, 482 Mass. 731, 734

(2019).

With respect to the officer's testimony, there was no

objection to this testimony or request for a limiting

instruction, and the officer corrected himself later in his

testimony after his recollection was refreshed by looking at his

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police report. His corrected testimony thus was not that the

defendant had been arrested for violating a restraining order,

and we do not think a reasonable juror would have understood

this as evidence that a restraining order was taken out against

the defendant. In any event, even if it were such evidence, the

defendant has not demonstrated in light of the officer's

correction, that it created a substantial risk of a miscarriage

of justice. Commonwealth v. Davis, 487 Mass. 448, 467 (2021)

(unpreserved claim of error reviewed for substantial risk of

miscarriage of justice).

With respect to the victim's testimony about the

restraining order, it was struck by the judge. The defendant,

however, asserts that the jury were "concerned about" the

restraining order, because they asked whether it was "applicable

evidence to consider." In response to the jury's question, the

defendant "concur[red]" with the Commonwealth's suggestion that

the judge repeat the instruction that the jury should not

speculate as to matters not in evidence. To the extent the

defendant is concerned about the adequacy of that instruction,

he has not shown that any weakness in it created a substantial

risk of a miscarriage of justice.

2. The victim's pregnancy. The defendant next argues that

the prosecutor improperly elicited the victim's testimony

regarding her pregnancy and the defendant's response to learning

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that the victim had revealed the pregnancy to her parents.

Calling this evidence of uncharged conduct, the defendant argues

that the probative value of the testimony regarding the victim's

abortion was substantially outweighed by its prejudicial effect.

See Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).

The defendant asserts that the claim of error is preserved

because he objected at trial, but his objection was only that

the victim was speculating that the defendant was threatening

physical violence when he stated that he was "going to make sure

[she] didn't have the baby." The defendant's new claim on

appeal -- that the risk of unfair prejudice from the evidence

that he bullied her into having an abortion she did not want

substantially outweighed its probative value -- was not

preserved. We therefore "review any error the judge made in

admitting the evidence at issue for a substantial risk of a

miscarriage of justice." Commonwealth v. Bonds, 445 Mass. 821,

828-829 (2006).

There was no error. As the judge instructed, in order to

prove that the defendant threatened to commit a crime, the

Commonwealth needed to prove "[f]irst, that the defendant

expressed an intent to injure a person or property of another,

now or in the future; second, that the defendant intended that

his threat be conveyed to a particular person; third, that the

injury that was threatened, if carried out, would constitute a

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crime; and, fourth, that the defendant made the threat under

circumstances which could reasonably have caused the person to

whom it was conveyed to fear that the defendant had both the

intention and the ability to carry out the threat." The threats

against the victim if she did not get an abortion are the very

basis for the threat charge. The Commonwealth proved that after

the defendant learned that the victim was pregnant and refused

to have an abortion, he told the victim that he would violently

attack her and cause her to have a miscarriage and that if she

had the baby he would rape and kill the baby. The victim's

subsequent decision to have an abortion despite her initial

decision not to do so tended to show that the "threat by its

content in the circumstances" would have caused a person "to

fear that the threatened crime or injury might be inflicted"

(citation omitted). Commonwealth v. Leonardo L., 100 Mass. App.

Ct. 109, 114 (2021). The admission of the victim's testimony in

this respect was necessary to prove the Commonwealth's case.

Indeed, in large measure it was not evidence of uncharged

conduct at all, but of the very crime with which he was charged.

Had it been objected to on the grounds the defendant now raises,

there would have been no abuse of discretion in concluding its

probative value was not substantially outweighed by the risk of

unfair prejudice.

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c. Prior consistent statements. The defendant's next

argument is that the prosecutor improperly elicited the victim's

prior consistent statements. The defendant points to four

instances where the prosecutor asked, first, whether the victim

had reported the incident when it happened, to which she

responded that she had not due to a fear of retaliation from the

defendant, and second, whether she had reported the incident to

the police on a future date, to which she responded that she

had. Of the four instances, the defendant objected to the last

but failed to object to the first three.

"Generally, a witness's prior consistent statement is

inadmissible." Commonwealth v. Fryar, 425 Mass. 237, 252

(1997). But "a witness's prior consistent statement is

admissible where a claim is made that the witness's in-court

statement is of recent contrivance." Commonwealth v. Zukoski,

370 Mass. 23, 26 (1976). 3

3 There is no merit to the Commonwealth's suggestion that no
prior consistent statement was elicited, as the victim only
testified as to the act of reporting and did not testify as to
the contents of her conversations with the police. The Supreme
Judicial Court has held that "[s]uch testimony 'is the
equivalent of saying that [the complainant] repeated her account
of the incident.'" Commonwealth v. Aviles, 461 Mass. 60, 68
(2011), quoting Commonwealth v. Stuckich, 450 Mass. 449, 457
(2008). The victim's testimony that she had reported these
incidents to the police thus must be treated as the equivalent
of her repeating her account of the incident.

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At the time the prior consistent statements were elicited,

during the direct examination of the victim, the defense had not

questioned her credibility or the delay in her reporting.

However, there was "no prejudice to the defendant because the

evidence would have been admissible on redirect examination."

Commonwealth v. Aviles, 461 Mass. 60, 70 (2011). On cross-

examination, defense counsel asked three separate times whether

anyone had called the police when the abuse occurred. Defense

counsel elicited that, at the time of the abuse, the victim had

lied to her mother about the cause of the bruises and markings

left by the defendant's beatings. The defendant's cross-

examination highlighted the victim's prior inconsistent

statements and her failure to report the abuse at the time it

allegedly occurred, suggesting that the victim's in-court

account of the abuse was contrived after the relationship had

ended. This would have opened the door on redirect examination

for the introduction of the victim's prior consistent

statements.

d. Lack of jurisdiction. The defendant's final argument

is that the court lacked jurisdiction to adjudicate the count of

assault and battery by means of a dangerous weapon (count 1) and

both counts of assault and battery on a family or household

member (counts 2 and 3). The Commonwealth concedes that the two

counts stemming from the defendant's conduct on January 2, 2019

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-- assault and battery by means of a dangerous weapon (count 1)

and one count of assault and battery on a family or household

member (count 2) -- occurred in Rhode Island, and the trial

court therefore lacked jurisdiction over these counts. We

agree. With respect to count 3, the assault and battery against

a family or household member occurring on August 15, 2019, the

victim testified that it took place in the defendant's apartment

in Massachusetts. Consequently, that count was within the trial

court's jurisdiction.

III. Conclusion. On counts 1 and 2, the judgments are

reversed, the verdicts are set aside, and those counts shall be

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dismissed. The remaining judgments of conviction on counts 3,

4, and 5 are affirmed. 4

So ordered.

By the Court (Green, C.J.,
Rubin & Hand, JJ. 5),

Clerk

Entered: September 8, 2023.

4 Although the defendant does not argue that in the case of
reversal of only some of the convictions he is entitled to
resentencing, nothing prevents him from bringing a motion
seeking such resentencing if he believes he is entitled to it.
See Commonwealth v. Tinsley, 487 Mass. 380, 390-391 (2021)
(resentencing may be appropriate where sentences are
interdependent and part of integrated package and only some are
affirmed). See also id. at 381 ("Under double jeopardy
principles, a new sentence may be imposed only on those
convictions for which the sentence has not been fully served at
the time of resentencing"). We express no opinion on that
question.
5 The panelists are listed in order of seniority.

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