Commonwealth v. Eduardo M. Mendez.

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-1210

COMMONWEALTH

vs.

EDUARDO M. MENDEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of

assault and battery on a person protected by an abuse prevention

order, in violation of G. L. c. 265, § 13A (b) (iii); and

violation of an abuse prevention order, in violation of G. L.

c. 209A, § 7.1 On appeal, he argues the judge erred (1) in

denying his request for an instruction on necessity, (2) in not

providing an instruction on specific unanimity, and (3) in the

jury selection process. We affirm.

1The defendant was found not guilty of one count of assault
on a family or household member, one count of kidnapping, three
counts of kidnapping of a child, and one count of intimidation
of a witness. One count of kidnapping of a minor by a relative
was dismissed pretrial.
Background. 1. Commonwealth's case. The defendant and

the victim previously dated and had two children together. The

victim described her relationship with the defendant as "sweet"

but "controlling with fear." By July 2022, two years after they

had broken up, the victim and her children had an abuse

prevention order against the defendant, pursuant to G. L.

c. 209A. On July 22, in violation of the order, the defendant

called the victim on her cell phone. The defendant sounded very

upset and told the victim that he was going to look for her.

About an hour later, the victim left her apartment with her four

children to walk to a nearby Wendy's restaurant for dinner. As

they walked past the post office, the victim noticed the

defendant's van in the parking lot. The defendant got out and

told the victim to "come here." As she approached, the

defendant starting yelling at the victim to get in the van. The

victim and her children got into the van because the victim was

scared of the defendant.

Once the victim was in the front passenger's seat, the

defendant began calling her a bitch and accusing her of sleeping

with other men. The defendant then started driving to the gas

station. As he drove, he would go fast and then slow, while

continuing to yell at the victim. Once at the gas station, the

defendant did not park or stop the van. The victim told the

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defendant to let her go. She tried to open the car door to

leave, but the defendant tried to grab onto her to prevent her

from getting out.

After leaving the gas station, the defendant drove to a CVS

pharmacy (CVS) about a block away. The victim's children were

crying and screaming for the defendant to stop. The victim

continued to tell the defendant to let her out. At CVS, the

defendant parked and shut off the van's engine. The victim

tried to get out, but the defendant was pulling and holding onto

her, telling her, "[d]on't leave." As she was opening the door

and the defendant was pulling her, she hit her head on the

window. The defendant then let go, and the victim took off

running. The defendant got out and started chasing the victim.

The children got out of the van as well.

A woman sitting in her car noticed the victim walking

quickly through the parking lot, followed by the defendant. The

woman saw the defendant grabbing at the victim and trying take

the victim's phone from her. The woman called out to the victim

to ask if she needed help. The victim walked quickly to the

woman's car, and the defendant followed. The woman told the

defendant that she was calling the police. The defendant told

the woman not to call the police and ran back to his van before

driving away. From the time the victim and her children got

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into the van at the post office and out of the van at CVS, it

was about twenty to thirty minutes.

2. Defendant's case. The defendant testified in his own

defense. He explained that he and the victim had planned to

meet up at the post office so that he could take her and the

children out to eat and bring one of his children to the store

to get her medicine. Once they were in the van and he started

driving, the defendant claimed the victim "lost her cool." He

wanted to continue with the plan, which was to get the children

"freezie[s]" at the gas station, so he drove them there. When

they realized the gas station did not have the right flavor, the

victim asked the defendant to drop them off where he had picked

them up, and he agreed.

The defendant testified that as he continued to drive, the

victim became aggravated and opened the door to jump out. The

defendant explained that he grabbed the victim's wrist so that

she would not jump out. He then stepped on the gas to "close

the door." He continued driving toward CVS, which was about one

to two minutes away. Once parked at CVS, the defendant stated

that he grabbed the victim's wrists again because she was

hitting herself. The victim then opened the door and left. In

the parking lot, the defendant grabbed and pulled the victim to

try to bring her back to the van because she was "making a

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scene." When the woman in the parking lot told the defendant

that she was calling the police, the defendant asked her not to

and left.

Discussion. 1. Necessity instruction. Immediately

following the defendant's testimony, counsel requested a jury

instruction on the defense of necessity, suggesting that the

defendant only assaulted the victim by grabbing her wrist to

prevent her from jumping out of the moving vehicle. On appeal,

the defendant argues the judge erred when she denied this

request. Where the defendant "requested such a supplemental

instruction, we review for prejudicial error." Commonwealth v.

Toolan, 490 Mass. 698, 708 (2022).

The common-law defense of necessity "exonerates one who

commits a crime under the 'pressure of circumstances' if the

harm that would have resulted from compliance with the law . . .

exceeds the harm actually resulting from the defendant's

violation of the law" (citation omitted). Commonwealth v.

Kendall, 451 Mass. 10, 13 (2008). Such a defense is only

available where the defendant meets his initial burden to

present "some evidence" on each of the following four elements:

"(1) the defendant is faced with a clear and imminent
danger, not one which is debatable or speculative; (2) the
defendant can reasonably expect that his action will be
effective as the direct cause of abating the danger; (3)
there is [no] legal alternative which will be effective in
abating the danger; and (4) the Legislature has not acted

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to preclude the defense by a clear and deliberate choice
regarding the values at issue" (citation omitted).

Id. at 13-14.

Here, viewing the defendant's testimony in the light most

favorable to him, see Commonwealth v. Pike, 428 Mass. 393, 400

(1998), the defendant grabbed the victim's wrist and pulled her

toward him because she was opening the door of a moving vehicle

to jump out. The defendant thus succeeded in showing "some

evidence" of the first element -- that there was a clear and

imminent danger. Kendall, 451 Mass. at 14. However, as the

judge reasonably concluded, the defendant offered no evidence of

the third element -- that any lawful alternative to grabbing the

victim, such as slowing down or stopping to let her out, was

unavailable. See Pike, supra at 401, quoting Commonwealth v.

Brugmann, 13 Mass. App. Ct. 373, 380 (1982) (with respect to

third element, "it is up to the defendant to make himself aware

of any available lawful alternatives, 'or show them to be futile

in the circumstances'"). In fact, the defendant testified that

as the victim was trying to open the door, not only did he fail

to slow down, he "step[ped] on the gas." As described by the

witnesses, the area in which this occurred was not a high-speed

roadway; rather, it was an area lined with a gas station, a CVS,

and a Wendy's. The defendant failed to present any evidence

that slowing down or pulling over in such a location was

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impossible or futile. See Pike, supra. Accordingly, the judge

made no error in refusing to provide an instruction on

necessity.2

2. Specific unanimity. The defendant claims that although

he was charged with only one count of assault and battery on a

person protected by an abuse prevention order, he committed at

least three assault and batteries according to the testimony

(including his own) -- when he grabbed the victim twice in the

car, and when he grabbed and pulled her in the CVS parking lot.3

Accordingly, he argues that the judge erred in not providing the

jury with an instruction on specific unanimity. Because the

defendant did not request the instruction, we review for a

substantial risk of a miscarriage of justice.4 Commonwealth v.

Erazo, 63 Mass. App. Ct. 624, 630 (2005).

2 With respect to the other assaultive conduct the defendant
admitted to, we note that he also failed to show any evidence of
the lack of a lawful alternative or any imminent danger involved
when he grabbed the victim's wrist to stop her from "hitting
herself" or when he grabbed the victim in the parking lot to
stop her from "making a scene." See Kendall, 451 Mass. at 13-
14.

3 As the prosecutor stated in closing, the Commonwealth's
evidence showed that the defendant grabbed the victim "more than
one time" in the van. We note that the Commonwealth argued that
the defendant's conduct outside the van in the CVS parking lot
constituted an assault on a family or household member. The
defendant was found not guilty of that assault charge.

4 During the exchange following the Commonwealth's closing,
defense counsel failed to articulate a specific request or

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A specific unanimity instruction informs the "jury that

they must be unanimous as to which specific act constitutes the

offense charged." Commonwealth v. Conefrey, 420 Mass. 508, 512

(1995), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567

(1987). However, "[w]hen a single count is charged and where

the spatial and temporal separations between acts are short,

that is, where the facts show a continuing course of conduct,

rather than a succession of clearly detached incidents, a

specific unanimity instruction is not required." Commonwealth

v. Thatch, 39 Mass. App. Ct. 904, 905 (1995).

Here, the defendant's acts against the victim occurred

within a short period of time either in his van or immediately

outside of it, making it a continuing course of conduct. See

Commonwealth v. Shea, 467 Mass. 788, 797-798 (2014) (continuing

course of conduct involved two acts in violation of restraining

order against one victim that were spatially and temporally

close; lack of specific unanimity instruction did not cause

substantial risk of miscarriage of justice). Cf. Commonwealth

objection, making it unsurprising that the judge did not
understand counsel to be asking for a specific unanimity
instruction. He also failed to object to the instructions on
unanimity as given. See Commonwealth v. McDuffee, 379 Mass.
353, 357 (1979) ("It is a fundamental rule of practice that
where a party alleges error in a charge he must bring the
alleged error to the attention of the judge in specific terms in
order to give the judge an opportunity to rectify the error, if
any").

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v. Palermo, 482 Mass. 620, 630-631 (2019) (two threats, although

close in time, were made to separate victims; specific unanimity

instruction required); Conefrey, 420 Mass. at 514 (eight

assaults occurring over one-year period in three apartments;

specific unanimity instruction required). A specific unanimity

instruction was not required here, and therefore its absence did

not give rise to a substantial risk of a miscarriage of justice.

3. Jury selection. The defendant claims that the judge

violated his constitutional right to an impartial jury when she

excused two prospective jurors and denied his for-cause

challenge to two other jurors, forcing him to use his peremptory

challenges on them. We disagree.

"A trial judge is accorded considerable discretion in the

jury selection process." Commonwealth v. Clark, 446 Mass. 620,

629-630 (2006). Accordingly, a judge's decision, including her

finding of impartiality, "will not be overturned on appeal

unless the defendant makes a clear showing of abuse of

discretion or that the finding was clearly erroneous."

Commonwealth v. Emerson, 430 Mass. 378, 384 (1999), cert.

denied, 529 U.S. 1030 (2000).

a. Juror no. 92. The defendant claims that the judge

erred when she excused a prospective juror who failed to inform

the court that she could not hear any of the questions asked of

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the venire. During juror no. 92's voir dire, she was asked to

confirm that she had not answered yes to any of the venire

questions. She informed the judge that she had not answered the

questions because she has "problems hearing." The judge then

told the parties that it was not her intention to repeat all of

the venire questions separately to juror no. 92, and asked if

either party had an objection to her excusing the prospective

juror. No one objected.

For the first time on appeal, the defendant argues this was

structural error because juror no. 92 had a physical disability

that could have been accommodated. It is clear, however, that

the judge did not excuse the prospective juror because she found

"such service [was] not feasible" based on the juror's hearing

issues. Commonwealth v. Heywood, 484 Mass. 43, 46-47 (2020),

quoting G. L. c. 234A, § 3. Rather, the judge dismissed the

juror because of her late disclosure that she had missed the

entirety of the venire questioning. Significantly, based on her

admission to the judge that she "could not hear the whole --

what you were reading," the prospective juror also likely missed

the judge's reading of the jury instructions on empanelment,

including those on bias and the presumption of innocence. Even

were we to conclude the judge erred in not taking the time to

repeat what she had already stated, "[u]nder G. L. c. 234A,

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§ 74, a defect in jury empanelment does not warrant reversal

unless a defendant objects to it as soon as possible after its

discovery . . . and unless [he] has been specifically injured or

prejudiced thereby" (quotation and citation omitted).

Commonwealth v. Mora, 82 Mass. App. Ct. 575, 578 (2012). Given

that the defendant failed to object and did not show any

specific injury or prejudice as a result of juror no. 92's

dismissal, his claim fails. See id.

b. Juror no. 93. The defendant next argues that the

judge, over his objection, improperly dismissed a prospective

juror who stated that he had a doctorate in cognitive

neuroscience and expressed "serious concerns" about eyewitness

testimony. Based on his answers to the jury questionnaire and

the judge's follow-up questions, the judge found juror no. 93

not to be impartial and excused him.5

5 On the juror questionnaire discussed at sidebar, the
prospective juror answered "yes" to the question, "[I]s there
anything else in your background experience, employment,
training, education, knowledge or beliefs that might affect your
ability to be fair and impartial?" He also wrote, "my
professional education and training focused on issues of
attention, perception, and memory. Therefore, I have serious
concerns about eyewitness testimony, etcetera, I think." After
she asked some follow-up questions, the judge told the
prospective juror, "This criminal case is not for you, because I
think you would bring a very, very specific lens to analyze
. . . and being biased on a witness to . . . recall." The
witness responded, "No, I agree."

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Because the judge was "in a better position than an

appellate court to evaluate impartiality, which requires a

determination of credibility and demeanor," we cannot say that

she abused her discretion in finding juror no. 93 not to be

impartial. Mora, 82 Mass. App. Ct. at 578. This is especially

so where the prospective juror himself expressed concerns and

agreed with the judge about his bias. See Commonwealth v.

Colton, 477 Mass. 1, 17 (2017) ("As a general principle, it is

an abuse of discretion to empanel a juror who will not state

unequivocally that he or she will be impartial"). Accordingly,

the judge did not abuse her discretion in dismissing juror no.

93.

c. Juror no. 71 and juror no. 76. Lastly, the defendant

argues that the judge erred when she did not dismiss two

prospective jurors he challenged for cause and, instead, the

defendant had to use two of his peremptory challenges, "leaving

none for any other jurors." The defendant's claim fails at the

outset as he has not shown any prejudice as a result of the

allegedly erroneous dismissals. See Commonwealth v. McCoy, 456

Mass. 838, 842 (2010) (prejudice shown "by the use of a

peremptory challenge to remove the juror who allegedly should

have been excused for cause together with evidence that the

defendant later was forced to accept a juror he would have

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challenged peremptorily but was unable to because his peremptory

challenges had been exhausted"). While it appears the

defendant's two peremptory challenges were exhausted following

the dismissal of juror no. 76, the defendant has failed to

identify any sitting juror he would have challenged, or indeed

any harm that came as a result of using all of his peremptory

challenges. Cf. Commonwealth v. Auguste, 414 Mass. 51, 58

(1992) ("the defendant has adequately shown that he would have

exercised a proper peremptory challenge, had another been

available, to exclude at least one of the sitting jurors").

Accordingly, his claim fails.

Judgments affirmed.

By the Court (Singh, Grant &
Brennan, JJ.6),

Clerk

Entered: April 30, 2025.

6 The panelists are listed in order of seniority.

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