Commonwealth v. Edward W. Cefalo.

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

25-P-253

COMMONWEALTH

vs.

EDWARD W. CEFALO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant, Edward W. Cefalo, of

violating a G. L. c. 209A abuse prevention order. On appeal,

the defendant argues that the trial judge's failure to, sua

sponte, instruct the jury on the affirmative defense of

entrapment by estoppel created a substantial risk of a

miscarriage of justice. The defendant also contends that the

Massachusetts entrapment-by-estoppel jurisprudence should be

clarified by adopting the United States Court of Appeals for the

First Circuit's four-element test. In addition, the defendant

argues that (1) two witnesses improperly testified to their

belief that the defendant violated the abuse prevention order,

and (2) the judge abused his discretion in not permitting the
defendant to either refresh the memory of or to impeach the

testifying victim by playing the audio recording of a telephone

call between the victim and a police officer. We affirm.

Background. We summarize the evidence presented at trial.

On May 22, 2023, the victim obtained a restraining order against

the defendant requiring, inter alia, that he stay at least one

hundred yards from the victim and her residence until May 20,

2024. The defendant and victim have a child, Alex.1 Alex had a

restraining order against the victim.

On June 14, 2023, Alex entered the Peabody police station

and spoke with Officer Thomas Southern about receiving a police

escort to retrieve some personal belongings from the victim's

home. Officer Southern called the victim to arrange for Alex to

pick up some belongings from the house in the presence of the

police. The victim responded that Alex could come to her house,

but she stated that she did not want the defendant there.

Officer Southern testified that he advised the victim that the

defendant was not with the child. At no point did Officer

Southern see the defendant. Nor had Alex informed Officer

Southern that the defendant was present at the station and would

be driving Alex to the victim's residence.

1 A pseudonym.

2
Subsequently, Officer Southern instructed Alex to meet

Officer William Thong, who would be escorting him to the

victim's house, in a local restaurant's parking lot. Officer

Southern relayed, either to dispatch or to Officer Thong

directly, that Thong would be "meeting a party at [a restaurant]

to preserve the peace while [Alex] gathers some clothes

quickly." In the parking lot, the defendant identified himself

to Officer Thong, and told him that his child, Alex, needed to

gather belongings from the victim's home. The defendant did not

volunteer that the victim had an active restraining order that

prohibited the defendant from being within one hundred yards of

her or her residence. Officer Thong instructed the defendant to

"follow [him]," which the defendant subsequently did. At that

time, Officer Thong did not know the victim had a restraining

order against the defendant. The defendant parked in the

victim's driveway behind Officer Thong's vehicle, approximately

fifty feet from the house. The victim saw the defendant parked

in front of her driveway and informed Officer Thong that she had

an active restraining order against the defendant prohibiting

him from being near her residence. Officer Thong confirmed the

existence and active status of the restraining order.

Additional police officers arrived at the house, and the

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defendant was arrested for violating the restraining order by

being within one hundred yards of the victim's residence.

Discussion. 1. Entrapment by estoppel. The defendant

argues that the trial judge should have, sua sponte, instructed

the jury on the affirmative defense of entrapment by estoppel.

Arguing that the controlling cases are insufficiently clear to

provide guidance to litigants, the defendant further urges this

Court to adopt the four-element test developed by the First

Circuit. We are not convinced the circumstances here supported

an entrapment by estoppel instruction.

"Once a defendant raises [a] defense to a charge and the

defense is supported by sufficient evidence, the defendant is

entitled to have a jury instruction on the defense, and the

Commonwealth has the burden of disproving the defense."

Commonwealth v. Cabral, 443 Mass. 171, 179–180 (2005). The

defendant neither raised the applicability of the entrapment by

estoppel defense nor requested a jury instruction for the

defense in the trial court. We thus review for a substantial

risk of a miscarriage of justice. See Commonwealth v. Renderos,

440 Mass. 422, 425 (2003).

"Entrapment by estoppel has been held to apply when an

official assures a defendant that certain conduct is legal, and

the defendant reasonably relies on that advice and continues or

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initiates the conduct." Commonwealth v. Twitchell, 416 Mass.

114, 128 (1993), quoting United States v. Smith, 940 F.2d 710,

714 (1st Cir. 1991). "The defense rests on principles of

fairness grounded in Federal criminal cases in the due process

clause of the Fifth Amendment," and "generally involves factual

determinations based on the totality of the circumstances"

(citations omitted). Twitchell, supra.

In Twitchell, 416 Mass. at 129, the Supreme Judicial Court

held that the defendants were entitled to present an entrapment

by estoppel defense after concluding that the reasonableness of

their reliance on an official opinion was a question of fact for

the jury. There, the defendants did not seek medical care for

their sick child, relying instead on spiritual treatment in line

with their Christian Science beliefs. Id. at 116. The child

died from his illness, and the parents were ultimately convicted

of involuntary manslaughter in connection with the death of

their son. Id. at 115.

For the first time on appeal, defendants argued, in

relevant part, that they were entitled to present the entrapment

by estoppel defense because a church publication on the legal

rights and obligations of Christian Scientists in Massachusetts

that quoted, without citation, a portion of the Attorney

General's opinion on the spiritual treatment provision of G. L.

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c. 273, § 1, misled them to believe that they were protected

against criminal prosecution by the spiritual treatment

provision of § 1. Twitchell, 416 Mass. at 125-127. At trial,

the evidence demonstrated that defendants were "seeking to

practice their religion within the limits of what they were

advised that the law permitted." Id. at 129. Ultimately,

"[t]he issue was one that, if presented to them, could well have

changed the jury's verdicts." Id. at 129.

Under Twitchell, to be entitled to an entrapment by

estoppel defense, the defendant must establish that (1) "an

official assure[d] [him] that certain conduct [was] legal" and

(2) he "reasonably relie[d] on that advice and continue[d] or

initiate[d] the conduct." 416 Mass. at 128. Here, the

defendant contends that Officer Thong's direction that he

"follow [him]" constituted an assurance that he could drive his

child to the victim's home without violating the abuse

prevention order. We disagree. The first element of the

entrapment by estoppel defense recognized in Twitchell hinges on

whether the official made "an official statement of the law" on

which the defendant reasonably relied. Twitchell, supra at 129.

The defendant must reasonably rely "on the representations of an

authorized government official as to the legality of his

conduct." Smith, 940 F.2d at 714.

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Here, Officer Thong's instruction that defendant "follow

[him]" to the victim's home did not rise to an official

statement of the law. Officer Thong did not have knowledge of

the victim's abuse prevention order against the defendant at

that point. Neither Officer Southern nor the defendant informed

Officer Thong about the order. Without knowledge of the order,

Officer Thong's statement that defendant "follow [him]" did not

amount to an assurance that the defendant could legally drive to

the victim's house without being in violation of his abuse

prevention order. See United States v. Lynch, 903 F.3d 1061,

1076 (9th Cir. 2018) (defendant "never received the sort of

clear sanction that entrapment by estoppel requires" where

official never told defendant proposed activities were legal).

Had Officer Thong told the defendant, "Follow me and you will

not be in violation," we might have a different case. However,

those are not the facts before us.

In addition, based on the evidence presented at trial, no

rational jury could have found that the defendant's reliance (if

any) on Officer Thong's statement was reasonable. Alex, not the

defendant, entered the Peabody police station and asked Officer

Southern for a police escort to the victim's home because of his

own restraining order on the victim. The defendant did not

enter the station, and Alex did not inform Officer Southern that

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his father would be the one driving him to the victim's home.

Officer Thong learned either directly from Officer Southern or

from dispatch only that he was to meet the child "to preserve

the peace" while he grabbed items from his mother's home.

At the meeting place, the defendant identified himself and

explained that his child Alex needed to pick up some items from

his mother's home. Although the defendant did not try to hide

his identity from Officer Thong, at no point did he alert

Officer Thong to the existence of his active abuse prevention

order. There was no evidence that the defendant relied on

Thong's statement as an explicit assurance that that defendant's

conduct in following Thong would not place him in violation of

the victim's order. It was not reasonable for the defendant to

assume that Officer Thong, after hearing the defendant's name,

would have checked if he had any active abuse prevention orders.

Nor was it reasonable for the defendant to assume that Officer

Southern's knowledge of the abuse prevention order was conveyed

to Officer Thong when neither the defendant nor Alex alerted

Officer Southern that the defendant would be accompanying Alex

to the victim's house. See Smith, 940 F.2d at 715. See also

United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987)

("to establish the defense of official misleading, the defendant

must establish that his reliance on the misleading information

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was reasonable," meaning "that a person sincerely desirous of

obeying the law would have accepted the information as true, and

would not have been put on notice to make further inquiries"

[quotation and citation omitted]).

The defendant argues that entrapment by estoppel is not a

well-developed affirmative defense in Massachusetts. See

Twitchell, 416 Mass. at 128. Consequently, the defendant asks

this court to clarify the defense of entrapment by estoppel by

adopting the First Circuit's four-element test: (1) the

defendant "was advised by a government official that the act was

legal," (2) the defendant "relied on that advice," (3) the

defendant's reliance was reasonable, and (4) "given that

reliance, prosecution of the defendant would be unfair."2 Smith,

940 F.2d at 715.

Even if we were to assume, arguendo, that the First Circuit

test applied, the defendant cannot establish that he was

entitled to an entrapment by estoppel instruction. We have

already addressed the first three elements of the First Circuit

test pursuant to our analysis under Twitchell, so we will only

briefly touch on the fourth. Entrapment by estoppel "rests upon

2 We note that in Twitchell, the Supreme Judicial Court
cited Smith but did not adopt the First Circuit's test for
entrapment by estoppel. See Twitchell, 416 Mass. at 128, citing
Smith, 940 F.2d at 714-715.

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principles of fairness," and we assess whether the prosecution

violated "fundamental notions of fairness" based on the totality

of the circumstances. Smith, supra at 714. Evaluating the

evidence in light of this standard, we conclude that Officer

Thong's purported assurance would not support a defense of

entrapment by estoppel. See id. at 715. As discussed, supra,

Officer Thong's statement that the defendant should "follow

[him]" did not pertain to the legality of his conduct. It is

not contested that the defendant knew he had an active abuse

prevention order that prohibited him from being within one

hundred yards of the victim's residence. Despite that

knowledge, the defendant did not inform Officer Thong or inquire

whether he was aware of the order before proceeding to the home.

The defendant could have chosen to either inform Officer Thong

of the order, and seek permission to be within one hundred yards

of the victim's residence in the company of the police, or he

could have remained in compliance with the order by parking his

car more than one hundred yards from the residence and waited

for his child to pick up his belongings. Although we do not

suggest that the defendant had an obligation to inform the

police of his active order, the defendant's failure to give

Officer Thong of this fact supports our conclusion that the

prosecution of defendant was not unfair.

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2. Ultimate-issue testimony. The defendant argues for the

first time on appeal that he is entitled to reversal of his

conviction because Officer Thong offered improper opinion

testimony on the ultimate issue. We agree that Officer Thong

did so. But we conclude that the error did not create a

substantial risk of a miscarriage of justice.

It is fundamental that a witness, including a police

witness, may not give an opinion regarding a defendant's

culpability. See Commonwealth v. Hamilton, 459 Mass. 422, 439

(2011); Commonwealth v. Lodge, 431 Mass. 461, 467 (2000). While

there is "no rule in Massachusetts prohibiting an opinion that

touches on an ultimate issue," Commonwealth v. Canty, 466 Mass.

535, 543 (2013); Mass. G. Evid. § 704 (2023) ("An opinion is not

objectionable just because it embraces an ultimate issue"), such

testimony cannot directly speak to, or express a point of view

on, the issue of guilt or innocence. See Commonwealth v.

Tanner, 45 Mass. App. Ct. 576, 579 (1998). Therefore, when "an

opinion comes close to an opinion on the ultimate issue of guilt

or innocence, the probative value of the opinion must be weighed

against the danger of unfair prejudice." Canty, supra at 543-

544. See generally Mass. G. Evid. § 403, and cases cited.

First, the defendant argues that Officer Thong improperly

testified, on direct and re-direct, to his belief that the

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defendant was in violation of the abuse prevention order.

Officer Thong testified that after learning that the victim had

an abuse prevention order against the defendant, he requested

additional officers to the scene because "it seems like it's

going to be a restrain[ing] order violation." Officer Thong and

the other officers then "determined that there was in fact a

restraining order violation" and arrested the defendant "[f]or

violation of a restraining order." We agree with the defendant

that this testimony constituted improper opinion testimony on

the defendant's culpability. While the prosecution may present

evidence to "enable[e] the jury to understand the complete

occurrence," Commonwealth v. Ward, 45 Mass. App. Ct. 901, 903

(1998), it may not do so to elicit an opinion on the ultimate

issue in the case. See Commonwealth v. Woods, 419 Mass. 366,

375 (1995).

However, the unobjected-to opinion testimony here does not

require reversal because we do not have "a serious doubt whether

the result of the trial might have been different had the error

not been made." Commonwealth v. Randolph, 438 Mass. 290, 297

(2020), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

The Commonwealth presented a strong case. The evidence

established that the victim had an active abuse prevention order

against the defendant which required the defendant to remain one

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hundred yards away from the victim and her residence, the

defendant knew of the existence and contents of the order, and

the defendant came within one hundred yards of the victim and

her residence. This evidence, supported by the judge's

instructions that the jurors were "the sole and exclusive judges

of the facts", that the testimony of a police officer "is

entitled to no special or exclusive sanctity" and jurors "should

not believe or disbelieve them merely because they're police

officers," and that the Commonwealth must prove the defendant's

guilt beyond a reasonable doubt, sufficed to avert any

substantial risk of a miscarriage of justice. See Commonwealth

v. Gallagher, 91 Mass. App. Ct. 385, 390 (2017) (in face of

strong evidence and specific jury instructions, trooper's

erroneous testimony on ultimate issue did not cause prejudice).

The defendant also challenges as improper the victim's

testimony on cross-examination that she told Officer Thong to

arrest the defendant because he was in violation of the abuse

prevention order. Specifically, defense counsel asked the

victim, "So, you ran outside the house into the driveway to tell

Officer Thong to arrest him?," to which the victim replied, "I

told him that he's breaking the restraining order." Defense

counsel then immediately followed up by asking, "You ran outside

of your house to tell Officer Thong to arrest him? Yes or no?"

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The victim responded, "I told him that he needs to be arrested

because he broke the restraining order." Defense counsel then

asked again, "You told Officer Thong to arrest the defendant;

right?" to which the victim responded, "Yes, I said that he

needs to be arrested because he's breaking the restraining

order." Here, the defendant opened the door to unfavorable

testimony by asking the victim on cross-examination about what

she told Officer Thong. We discern no error. Even if the

victim's testimony constituted improper opinion testimony that

exceeded an open-door justification, there was no substantial

risk of a miscarriage of justice for the same reasons discussed

above in our analysis of Officer Thong's testimony that the

defendant violated the order. See, e.g., Commonwealth v.

Saunders, 75 Mass. App. Ct. 505, 510 (2009).

3. Audio recording. The defendant contends that the trial

judge abused his discretion in not allowing defense counsel to

use audio of a radio call to refresh the victim's recollection

or, in the alternative, to impeach the credibility of the

victim.3 We disagree. "We review evidentiary rulings for an

3 We assume without deciding that the defendant sufficiently
preserved this claim by filing a prospective motion indicating
his intent to use the recording to refresh witness recollection
or impeach witness credibility and by requesting to play the
recording immediately after the victim testified, "I can't
remember. . ."

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abuse of discretion, which requires a demonstration that 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 and citation

omitted). Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 476

(2017). Where the issue is preserved, we also must determine

whether the trial judge's abuse of discretion prejudiced the

defendant. See Commonwealth v. Souza, 492 Mass. 615, 626-627

(2023).

On cross-examination, the victim testified that she could

not remember if Officer Southern told her that the defendant

would not be coming to her house with the child; she testified

only that the officer informed her that the defendant was not

with the child. In response, the defendant sought to play an

audio recording of a telephone call during which the victim

asked Officer Southern if the child would be "coming with" the

defendant, to which Officer Southern replied, "No, he would be

by himself." The trial judge denied the defendant's request,

finding the victim's testimony and the purported content of the

recording essentially the same.

The defendant's argument that the judge should have

permitted him to play the recording to refresh the victim's

recollection is unconvincing. "The limits of cross-examination

15
ordinarily rest in sound judicial discretion." Commonwealth v.

Woodbine, 461 Mass. 720, 738 (2012). What exactly Officer

Southern told the victim or what the victim remembered Officer

Southern saying to her about the defendant was not relevant to

whether the defendant was in violation of the abuse protection

order. The judge properly, in his discretion, did not allow the

defendant to play the recording based on the judge's stated

understanding (which defense counsel did not challenge) that the

recording was essentially duplicative of the victim's testimony.

Similarly, the defendant's claim that the judge should have

admitted the recording as extrinsic evidence to impeach the

victim's credibility is also unavailing. "[E]xtrinsic evidence

on a collateral matter may be introduced at trial for the

purposes of impeachment only in the discretion of the judge"

(citation omitted). Commonwealth v. Farley, 443 Mass. 740, 751

(2005). The conviction did not depend on the victim's

credibility, as both Officer Thong and the defendant's own

witness placed the defendant in violation of the order by being

within one hundred yards of the victim and her residence. See

Farley, 443 Mass. at 751 (finding no abuse of discretion where

judge did not allow impeachment by extrinsic evidence on

collateral issue of witness's credibility). Whether the victim

was mistaken or lying when she testified, as proven by the audio

16
recording, was only marginally relevant at best. Accordingly,

we discern no abuse of discretion.

Regardless, the exclusion of the recording did not

prejudice the defendant considering the strength of the

Commonwealth's case. Souza, 492 Mass. at 627 ("An error is not

prejudicial if it did not influence the jury, or had but very

slight effect"). As discussed, supra, the relevancy of the

recording was marginal at best and any benefit of the recording

to the defendant was limited given that the defendant's

conviction for violating the abuse prevention order depended

neither on the exact words Officer Southern communicated to the

victim nor the credibility of the victim.

Judgment affirmed.

By the Court (Sacks, Smyth &
Wood, JJ.4),

Clerk

Entered: November 26, 2025.

4 The panelists are listed in order of seniority.

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