Commonwealth v. Michael Collins.

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-1028

COMMONWEALTH

vs.

MICHAEL COLLINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of assault

and battery and assault and battery with a dangerous weapon.1 On

appeal the defendant argues that he is entitled to a new trial

because the prosecutor's closing argument was improper. We

affirm.

Background. The defendant and his girlfriend first met

after messaging each other through Instagram and then in person

1The defendant was indicted on three counts. The first and
second counts, assault and battery on a child causing
substantial bodily injury and assault and battery by means of a
dangerous weapon, relate to a child victim. The third count,
assault and battery by means of a dangerous weapon, relates to
an adult victim. The jury acquitted the defendant on the first
count, convicted him of the lesser included offense on the
second count, and convicted him on the third count.
at the defendant's birthday party in May 2015. By July 2015,

the girlfriend was pregnant with her second child, Sam,2 and

called the defendant to inform him that he was the father. One

month after Sam was born, the girlfriend, Sam, and Kim,3 the

girlfriend's three-year-old daughter from a previous

relationship, moved into the defendant's residence.

The girlfriend's relationship with the defendant became a

"nightmare" when he became physically violent. The first time

the defendant hit the girlfriend, he "smacked" her with an open

hand because he was upset that she "raised [her] voice" at his

grandmother. The defendant became angry with the girlfriend's

parenting decisions and when he realized that the girlfriend

would not "spank" Kim, "he got up and . . . did it himself."

The girlfriend testified that if Kim "peed on herself" without

letting him know, the defendant would "freak out" and "lay her

on the bed and spank her with the belt."4 The girlfriend told

the defendant not to spank Kim, then "one day he hit [the

girlfriend] with the belt . . . across [her] back." Kim was

four years old when the girlfriend saw the defendant "on top of

[the child] . . . punching her . . . leg, face, back, [and]

2 A pseudonym.

3 A pseudonym.

4 Kim was "halfway" toilet trained when she moved into the
defendant's residence but regressed while she lived with him.

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arms." When the girlfriend "tried to stop" the defendant, "it

was [the girlfriend's] turn." The girlfriend escaped the

residence with Kim and "ran out with . . . whatever [the

girlfriend] had on, no shoes, no coat, like nothing." The

defendant's mother followed the girlfriend and Kim "down the

street" and offered to take them to "a family member's house,"

where they stayed for a week or less before the girlfriend took

Kim to the hospital. During this period, Sam remained with the

defendant's family.

On February 4, 2017, the girlfriend took Kim to Boston

Children's Hospital, where doctors determined to a reasonable

degree of medical certainty that Kim was the victim of child

abuse.5 Kim's doctors observed "multiple scars throughout her

body, including on her abdomen, her flank, her back, her

buttocks, and covering her arms and her legs and her feet."

Medical imaging scans revealed "bleeding around [Kim's] brain,"

"on both sides of [her] head," as well as "areas within the

scalp that . . . hardened into calcium deposits." Additional

imaging showed that Kim's brain had "atrophied . . . compared to

5 Dr. Hiu-fai Fong, a physician on the child protection team
at Boston Children's Hospital, found multiple "healing fractures
of [Kim's] fingers" and "multiple fractures of her . . . spine."
Scans of Kim's eyes showed retinal bleeding and cataracts in
both eyes that required surgery.

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[her] prior head imaging."6 When hospital employees asked the

girlfriend who hurt Kim, the girlfriend said that she did,

thinking that statement would help get Sam out of the

defendant's residence. The girlfriend admitted at trial that

some of what she told the doctors about her hitting Kim was true

and disclosed that she hit Kim "[w]ith [the defendant] behind

[her] back" because, if she didn't, "[t]here would be more

fighting between [her and the defendant]."

Police officers arrested and questioned the girlfriend when

she returned to the hospital the next day.7 During her

interview, the girlfriend admitted to "disciplining [Kim] with

hitting on the hands with just her hand," which escalated to

hitting Kim with a "plastic slotted spoon" and a "metal

spatula." The girlfriend said she "used a cord to keep [Kim] in

place or keep her tied . . . [and] contained." During the

girlfriend's booking, officers photographed "injuries that she

had received from abuse by [the defendant]," including "bruises

and markings on her legs, . . . shoulder area, and on parts of

her back." A grand jury indicted the girlfriend on seven

6 When she was approximately two years old, Kim was treated
at Boston Children’s Hospital for an unrelated injury, for which
she had received head imaging.

7 The Department of Children and Families interviewed the
girlfriend and removed Sam and Kim from her custody.

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counts; each indictment named Kim as the victim.8 The girlfriend

testified at the defendant's trial. At that time, her charges

were "still pending" and she testified that no one made "any

promises" to her regarding the status of her case. Defense

counsel vigorously cross-examined the girlfriend on each charge

and confirmed that she "still [had] to face the court for either

a trial or . . . sentence." Defense counsel attempted to elicit

testimony from the girlfriend that given her testimony against

the defendant, she could "beat the charges against [her]" and

avoid trial.

The defendant's counsel argued in closing that the

girlfriend had a motive to lie and that "she's hoping that you

will convict [the defendant] so that she can make a presentation

in her own case to claim that she's a battered woman and that

her conduct is the result of being forced to do so by the abuse

of men." The prosecutor responded in her closing, inter alia,

that, the girlfriend "inflicted horrific injuries on her child,

[and she] is indicted for hitting her child, . . . permitting

her child to end up in the condition she was in when she arrived

at [Boston Children's] Hospital . . . [and] allowing [the

8 The girlfriend faced one count each of permitting
substantial bodily injury to a child; assault and battery with a
dangerous weapon causing serious bodily injury; assault and
battery on a child causing bodily injury; reckless endangerment
of a child; and three counts of assault and battery with a
dangerous weapon.

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defendant] to injure her child." The prosecutor continued, "Who

knows what her defense will be at trial, certainly suspect it

will be battered woman, but that's her trial that she will have

because no one is letting [her] off the hook." The defendant

failed to object following closing arguments. After the court

gave the final jury instructions and requested to speak to the

attorneys, the defendant raised an "issue that [he] neglected to

address before[,] . . . an objection to the closing argument

that stated that [the girlfriend] will have a trial." The judge

stated that the defendant "raised [the issue in his closing]

very clearly" when he "argued that [the girlfriend] was accusing

the defendant so that she could have a battered woman defense at

her trial." The defendant responded, "Very well. . . . All

right. Very well, Your Honor." Five months after the

defendant's sentencing, the girlfriend pleaded guilty to five of

her indictments and the Commonwealth entered a nolle prosequi as

to the remaining two indictments.

Discussion. The defendant asserts that the prosecutor

"deliberately argued a fact not in evidence and injected her

personal beliefs in her closing argument" when she "speculated

concerning the disposition of [the girlfriend's] outstanding

indictments" because "there was no trial." We are not

persuaded.

When evaluating error in a prosecutor's closing argument,

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"we consider (1) whether the defendant seasonably objected;
(2) whether the error was limited to collateral issues or
went to the heart of the case; (3) what specific or general
instructions the judge gave the jury which may have
mitigated the mistake; and (4) whether the error, in the
circumstances, possibly made a difference in the jury's
conclusions."

Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000), citing

Commonwealth v. Kozec, 399 Mass. 514, 518 (1987). Because the

defendant "acquiesced . . . and specifically indicated he was

satisfied" without a curative instruction, we determine whether

any error created a substantial risk of a miscarriage of

justice. Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).

"A prosecutor may not misstate evidence or refer to facts

not in evidence in a closing argument." Commonwealth v.

Goddard, 476 Mass. 443, 449 (2017). Statements made by a

prosecutor in closing must be viewed "in light of the entire

argument," including "the judge's instruction to the jury and

the evidence at trial" (quotation and citation omitted).

Commonwealth v. Coren, 437 Mass. 723, 730-731 (2002). Here, the

evidence showed that the prosecutor and the defendant

acknowledged the potential that the girlfriend's case might not

proceed to trial. The prosecutor questioned the girlfriend on

her pending charges and confirmed that the Commonwealth made no

promises to her in exchange for her testimony. During cross-

examination defense counsel recited the girlfriend's charges and

tried to prove the girlfriend's testimony was motivated by the

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possibility of avoiding trial for her charges. Because the

trial record shows that the defendant first questioned the

girlfriend on whether she might not stand for trial, the

prosecutor's response in closing was fair and appropriate. As a

result, there was no error. See Commonwealth v. Lamrini, 392

Mass. 427, 433 (1984) ("[T]he prosecutor's remarks were grounded

in the evidence").

Nor did the prosecutor inject her personal beliefs in the

closing argument. "[A] prosecutor may properly comment to

correct an erroneous impression created by opposing counsel"

(quotation and citation omitted). Kozec, 399 Mass. at 519 n.9.

Here, defense counsel attacked the girlfriend's credibility in

closing and raised the issue that the girlfriend tailored her

testimony in hopes of making a favorable presentation in her

pending case as a controlled, battered woman. The prosecutor,

in turn, argued that the girlfriend was properly indicted and

that no one knew what defense she would raise at trial.9 The

argument from the prosecutor was a "fair reply to the

9 To the extent that the defendant asserts, without any
record support, that the prosecutor had "knowledge independent
of the evidence before the jury," we need not address this
argument because it does not rise to the level of adequate
appellate argument (citation omitted). Commonwealth v. Kee, 449
Mass. 550, 560 (2007). See Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019).

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defendant's closing argument." Commonwealth v. Smith, 404 Mass.

1, 7 (1989).

Lastly, even assuming that there was error in the

prosecutor's closing to which the defendant did not acquiesce,

we can conclude with "fair assurance that the error did not

influence the jury, or had but very slight effect" (quotation

and citation omitted). Commonwealth v. Correia, 65 Mass. App.

Ct. 27, 31 n.4 (2005). The defendant was found not guilty on

count one of his three count indictment and guilty of the lesser

included offense for count two. See Commonwealth v. Howell, 49

Mass. App. Ct. 42, 48 (2000) (error did not materially influence

guilty verdicts where jury acquitted defendant on three

indictments).

Judgments affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.10),

Clerk

Entered: August 8, 2025.

10 The panelists are listed in order of seniority.

9