Commonwealth v. Gardner

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

21-P-1007 Appeals Court

COMMONWEALTH vs. ROBERT GARDNER.

No. 21-P-1007.

Middlesex. September 9, 2022. – February 15, 2023.

Present: Shin, Hand, & Brennan, JJ.

Rape. Assault and Battery. Assault and Battery by Means of a
Dangerous Weapon. Stalking. Protective Order.
Intimidation of Witness. Husband and Wife, Rape.
Practice, Criminal, Required finding, Discovery, New trial,
Assistance of counsel, Hearsay, Argument by prosecutor.
Evidence, Medical record, Telephone conversation, Verbal
completeness.

Indictments found and returned in the Superior Court
Department on September 11, 2015, and August 17, 2017.

The cases were tried before Robert L. Ullmann, J., a
postconviction motion for discovery and funds was heard by him,
and a motion for a new trial was heard by him.

Dennis Shedd for the defendant.
Ryan J. Rall, Assistant District Attorney, for the
Commonwealth.

BRENNAN, J. A Superior Court jury convicted the defendant,

Robert Gardner, of aggravated rape, assault and battery causing
2

serious bodily injury, assault and battery by means of a

dangerous weapon causing serious bodily injury (two counts),

assault and battery on a family or household member (two

counts), stalking, violation of a restraining order, and

intimidation of a witness.1 The offenses were committed against

his former wife, spanned over half a decade, and resulted in

significant physical injuries to the victim at various times,

including a fractured back, a broken nose, and a fractured

skull. This physical violence was underpinned by emotional

manipulation of the victim, and frequently manifested in the

defendant's pressure on her to recant her allegations and assert

her marital privilege not to testify against him.

We consider the defendant's appeals from his convictions,

the order denying his postconviction motion for discovery and

funds, and the order denying in part his motion for a new trial

based on his claims of ineffective assistance of trial counsel.2

1 The jury acquitted the defendant of a second count of
aggravated rape, rape, assault with intent to rape (two counts),
and a second count of intimidation of a witness. A related
charge of cruelty to animals was dismissed prior to trial.

2 The defendant contended that his trial counsel was
ineffective for a variety of reasons. After a nonevidentiary
hearing, the judge agreed with the defendant on one of these
arguments -- that counsel was ineffective in failing to request
an instruction defining "substantial emotional distress" -- and
thus granted a new trial on the intimidation of a witness
conviction. The judge otherwise denied the defendant's motion.
The Commonwealth did not appeal from the partial allowance of
the motion for a new trial.
3

Concluding that (1) there was sufficient evidence of witness

intimidation to support the defendant's conviction, (2) there

was no error in the admission at trial of a recorded telephone

conversation between the defendant and his father, (3) the

denial of the defendant's postconviction request for discovery

and funds was not an abuse of the judge's discretion, and (4)

trial counsel was not ineffective, we affirm.

1. Background. The defendant and the victim began dating

in 2004, married in 2009, and ultimately divorced in 2017. Less

than one year into their relationship the defendant became

physically and sexually abusive toward the victim. Thereafter,

the defendant frequently was violent toward her, although the

victim rarely reported his abuse.

The first reported incident of abuse occurred on August 7,

2008. According to the victim, after she refused the

defendant's demand for sex, he held her cat against the wall by

its throat, hit the victim, and raped her.3 The victim reported

to police what the defendant had done to her cat but was "too

scared" to disclose the sexual assault. The defendant soon

convinced the victim that the incident was her fault, and she

wrote a letter to him apologizing "for the court case[] that I

3 The defendant was acquitted of the rape charge relating to
this incident.
4

have you involved in." The victim later provided an affidavit

to the prosecutor, written by the defendant, then copied and

signed by the victim, requesting that the charges be dismissed.

The next reported assault took place on February 20, 2011.

After a night of arguing, the defendant and the victim began to

have consensual sex. When the victim tried to stop the sexual

interaction, the defendant pushed her down and hit her

repeatedly. Although she called the police, the victim

initially reported only the physical abuse, because she was

"[still] too scared" to report the sexual assault. As a result

of this attack, she suffered swelling and bruising on her head,

pain in her ribs, vaginal bleeding, and a broken vertebra.

The victim obtained a restraining order against the

defendant in conjunction with this assault. Shortly after the

order issued, the defendant violated it. The victim reported

the restraining order violation to police and the defendant was

charged in the District Court. Subsequently, the victim

submitted an affidavit to the District Court, drafted by the

defendant's attorney, asking that the criminal cases against the

defendant be dismissed.

On October 2, 2014, an argument between the victim and

defendant escalated into a physical assault in which the

defendant broke the victim's nose. The victim called police and

the defendant was arrested. Over the next several months, the
5

defendant repeatedly tried to convince the victim to retract

those allegations of domestic violence. He was angry with the

victim and told her the incident was not his fault, but instead

was a result of her mental illness. One such conversation in

March 2015 erupted into another violent incident that resulted

in the defendant's arrest.4 While held in custody on that

matter, the defendant told the victim to get him out of jail,

directed her to call his attorney, and instructed her to obtain

letters from her psychiatrist to support her recantation of the

allegations against him. Ultimately, the victim provided the

District Court with a letter from her psychiatrist and indicated

that she did not want to cooperate with prosecution. The

charges in the District Court were dismissed at the victim's

request.

On June 3, 2015, after the victim refused the defendant's

demand for sex, the defendant threw an object at the victim,

striking her in the head and fracturing her skull. After

calling 911, the victim passed out in the street. The victim

went by ambulance to the hospital, where she underwent a

craniotomy to remove a blood clot and relieve pressure on her

brain.

4 The March 2015 incident was not the subject of an
indictment in this case.
6

After her release from the hospital, the victim lived in

New Hampshire. On July 24, 2015, she rented a motel room in

Tewksbury and agreed to see the defendant. The victim initially

consented to have sex with the defendant, but when she told him

to stop, they argued. The defendant disabled the telephone in

the motel room (motel phone) so that the victim could not call

for help. Over the next few hours, the defendant repeatedly

raped the victim vaginally and forced his penis into her mouth.

When the victim yelled at him to stop, the defendant put his

hand over her mouth to keep her quiet, which caused the victim

to struggle to breathe. When the victim tried to leave, the

defendant stood in front of the door and locked it. At some

point, the victim got her cell phone and dialed 911. She turned

on the cell phone speaker and the defendant made several

whispered threats, including that he was going to kill her and

her daughter. The defendant fled before police arrived.

When police arrived, the victim was crying and shaking.

She had bruising and swelling on her face, her mouth was

bleeding, and the room was in disarray with the motel phone

ripped off the wall. Although initially reluctant to seek

treatment, the victim went to the hospital later that day. A

sexual assault nurse examiner (SANE) documented numerous

injuries and bruising all over the victim's body.
7

Shortly after her release from the hospital, the victim

spoke to the defendant. The police had not yet arrested the

defendant and, despite the most recent attack, the victim did

not want them to do so because she still loved him. The

defendant told the victim that to avoid his prosecution they

should run away and stay elsewhere for several years. The

defendant and victim left Massachusetts together the following

day, but a police task force eventually located them in New

Jersey. Immediately after his arrest, the defendant began to

exhort the victim from the holding cell to support him: "We're

strong, we know how to do this . . . we just got to do what we

have to do to be strong."

The defendant was returned to Massachusetts and

subsequently charged in Superior Court in indictments that

encompassed the victim's allegations of abuse from 2011 through

2015. While in custody awaiting trial, he sent letters to the

victim. As a result of his sending those letters, the defendant

was charged in a separate indictment with intimidation of a

witness. All the indictments were joined for trial.

2. Discussion. a. Direct appeal. i. Sufficiency of

evidence of intimidation of a witness. The defendant was

convicted of one count of intimidation of a witness. His first

challenge on appeal is to the judge's denial of his motion for a

required finding of not guilty as to that indictment. When
8

reviewing the denial of a motion for a required finding of not

guilty, "we consider the evidence introduced at trial in the

light most favorable to the Commonwealth, and determine whether

a rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

Oberle, 476 Mass. 539, 547 (2017). "The inferences that support

a conviction 'need only be reasonable and possible; [they] need

not be necessary or inescapable.'" Commonwealth v. Waller, 90

Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods,

466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014).

The elements required to prove intimidation of a witness

are that the defendant (1) willfully; (2) threatened,

intimidated, or harassed; (3) a witness "in a criminal

proceeding of any type; (4) with the intent to impede or

interfere with a criminal investigation or proceeding."

Commonwealth v. Nordstrom, 100 Mass. App. Ct. 493, 499-500

(2021). See G. L. c. 268, § 13B. The defendant argues that

there was insufficient evidence that the defendant threatened,

intimidated, or harassed the victim. Although we agree that the

defendant did not explicitly threaten the victim, we conclude

that there was sufficient evidence to support a conviction of

witness intimidation either by intimidation or by harassment.

As relevant here, "intimidation" means "acts or words that

would instill fear in a reasonable person." Commonwealth v.
9

Rivera, 76 Mass. App. Ct. 530, 535 (2010). See Commonwealth v.

Perez, 460 Mass. 683, 703 (2011). The Commonwealth's evidence

demonstrated that the parties' lengthy relationship was

punctuated by cycles of the defendant abusing, supporting,

blaming, "gaslighting,"5 and pressuring the victim to recant her

allegations against him. See Commonwealth v. Pagels, 69 Mass.

App. Ct. 607, 613 (2007) ("the jury may consider the context in

which the allegedly threatening[, intimidating, or harassing]

statement was made and all of the surrounding circumstances").

In the trove of letters sent by the defendant to the victim from

jail while he awaited trial on the various charges stemming from

his abuse of her between 2011 and 2015, the defendant

consistently urged the victim not to testify against him,6

5 Gaslighting is defined as "psychological manipulation of a
person usually over an extended period of time that causes the
victim to question the validity of their own thoughts,
perceptions of reality, or memories and typically leads to
confusion, loss of confidence and self-esteem, uncertainty of
one's emotional or mental stability, and a dependency on the
perpetrator." Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/gaslighting
[https://perma.cc/Q6XW-SGTU].

6 For example, he wrote to her that "even in the Bible it
talks about solving your legal battles before you go before a
judge." After the victim filed for divorce, the defendant
provided her with a written "motion to stay judgement [sic] for
divorce" and asked her to file it in court. He explained that
reconsidering divorce was her "best opportunity to not have to
testify."
10

admonished her for meeting with prosecutors,7 and coached her on

what to say in court.8 Although not explicitly threatening, the

letters included repeated references to the victim as both the

reason for his incarceration and prosecution and the only

potential key to his freedom. We are satisfied that in the

context of the defendant's longstanding pattern of controlling

and abusive conduct toward the victim, the defendant's words

would have made a reasonable person fearful of the consequences

of refusing to do as the defendant directed. See Commonwealth

v. Carvalho, 88 Mass. App. Ct. 840, 845-846 (2016) (even where

defendant's words are not expressly threatening, intimidating,

or harassing, his behavior may fall within meaning of

intimidation).

Alternatively, "harassment" under the witness intimidation

rubric requires proof of an act that "seriously alarms or

annoys" a person "and would cause a reasonable person . . . to

suffer substantial emotional distress." G. L. c. 268,

7 When he learned that the victim provided his letters to
the prosecutor, the defendant sent a letter criticizing her for
"run[ning] straight to the [assistant district attorney] with
[them]," and told her, "that's the problem with your actions,
you don't think about the long term consequence."

8 In one letter discussing "this intimidation charge," the
defendant writes, "It might help if you let people know you
don't feel afraid or intimidated." In another, he tells the
victim not to object to his request to obtain her medical
records.
11

§ 13B (a). See Commonwealth v. Middleton, 100 Mass. App. Ct.

756, 763-764 (2022). "[E]motional distress that is merely

trifling or passing is not enough to satisfy this element, but

must be markedly greater than that commonly experienced as part

of ordinary living." Commonwealth v. Robinson, 444 Mass. 102,

108 (2005). There was ample evidence in this case that the

victim suffered years of sexual, physical, and emotional abuse

by the defendant in a controlling domestic relationship from

which she was struggling to extricate herself.9 The defendant's

letters to the victim from jail plucked the same emotional

strings that led her to recant in prior cases, and he played on

the victim's embedded insecurities in his repeated attempts to

convince her to abandon this prosecution.10 The victim testified

that the defendant's barrage of letters and telephone calls "was

driving my head crazy . . . repeating the same thing when

9 As we have acknowledged previously, "[d]omestic violence
is a complex phenomenon that results in psychological and
physical injuries to a significant number of persons each year
. . . . The pattern typically exhibited by battered women . . .
includ[es] their tendency to leave and then return to the
batterer many times before finally ending the relationship"
(quotation and citation omitted). Commonwealth v. Gordon, 87
Mass. App. Ct. 322, 333 n.13 (2015).

10Sounding a theme woven into virtually every
communication, in one such letter the defendant wrote, "your
life's a mess and you need to get it back in order," and advised
the victim to "go back to church" to "make amends," while
simultaneously professing his love for her and insisting, "this
is my last chance, our last chance, to stop this [prosecution]."
12

expecting a different result and a different result wasn't going

to come." She also testified that the communications were so

upsetting that she refused to accept them for a time, and that

she ultimately came to understand why her family and friends

were fearful for her. Considering the victim's testimony in

context, we are satisfied that the defendant's efforts to

convince her to foil the prosecution against him for abusing her

caused the victim "serious alarm or annoyance" and would have

engendered "substantial emotional distress" in a reasonable

person. See Robinson, supra.

In sum, we are satisfied that the evidence was sufficient

under both the "intimidation" and "harassment" theories of

witness intimidation, either one of which would have supported

the defendant's conviction.

ii. Telephone call between the defendant and his father.

The Commonwealth introduced in evidence, over the defendant's

objection, a portion of a recorded telephone call the defendant

made to his father from jail on September 5, 2015, while

awaiting trial (September 5 call).11 The defendant argues that

his father's statements were inadmissible because they included

11The judge instructed the jury not to "take anything that
[the father] said for the truth of the matter."
13

an opinion that the victim was being truthful.12 We disagree.

Contrast Commonwealth v. Spencer, 465 Mass. 32, 48 (2013)

(detectives' opinion that defendant is guilty and lying and

"police reiteration of accusations by third parties that the

defendant has denied" are inadmissible). The father's

statements provided context for the defendant's admissions that

"I have no defense against this" and "I haven't been able to own

up to it yet because of this phone thing." See Mass. G. Evid.

§ 801(d)(2)(A) (2022); Commonwealth v. Mejia, 88 Mass. App. Ct.

227, 238 (2015) (statement of second speaker on telephone call

properly admitted to provide context to conversation).

Particularly where the jury were instructed that they could not

consider the father's statements for their truth, we discern no

error in the judge's implicit determination that the probative

value of the father's statements outweighed any prejudice to the

defendant, and no abuse of discretion in the admission of those

statements. See Commonwealth v. Robertson, 489 Mass. 226, 237–

238, cert. denied, 143 S. Ct. 498 (2022) (witness's opinion

12Although the defendant does not identify with specificity
which of the statements were inadmissible, it appears that he is
challenging the following statements made by the father at
various points during the call: "[Y]ou need to face up to what
you've done"; "[Y]ou use this marital privilege as a shield and
I disagree"; "In talking to [the victim], I don't believe that
[she was pressured]. . . . That's not where I feel things are
at"; and "I'm sure there's more than one side. But I don't
think you own up to your side either."
14

testimony did not require reversal where judge gave appropriate

curative instruction); Spencer, supra (weighing probative value

versus prejudice of proffered evidence entrusted to trial

judge's broad discretion).

b. Postconviction discovery. Prior to filing his motion

for a new trial, the defendant requested discovery of the

victim's medical records and funds for experts to review them.

"Discovery in the context of a new trial motion under Mass. R.

Crim. P. 30 (c) (4), 378 Mass. 900 (1979), is not a matter of

right. The motion and affidavits must first establish a prima

facie case before discovery is available." Commonwealth v.

Arriaga, 438 Mass. 556, 569 (2003). Here, counsel's affidavit

averred only that the discovery was necessary to explore the

effects that medication and mental illness "may have had" on the

victim's behavior and memory and the reasons she required nasal

surgery in April 2015. Where the defendant advanced no more

than a hypothetical and speculative basis for his request, we

discern no abuse of discretion in the judge's denial of the

motion. See Commonwealth v. Camacho, 472 Mass. 587, 598 (2015)

("In order to prevail on a posttrial discovery motion, a

defendant must demonstrate that it is reasonably likely that

such discovery will lead to evidence possibly warranting a new

trial").
15

c. Motion for a new trial.13 The defendant raised numerous

claims of ineffective assistance of counsel in his motion for a

new trial. Where, as here, the motion judge was the trial

judge, "[r]eversal for abuse of discretion is particularly

rare." Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004),

quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995). To

prevail on a claim of ineffective assistance of counsel, "the

defendant must show that the behavior of counsel fell measurably

below that of an ordinary fallible lawyer and that such failing

'likely deprived the defendant of an otherwise available,

substantial ground of defence.'" Commonwealth v. Prado, 94

Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). Reviewing the denial of the

defendant's motion for a new trial for a significant error of

law or abuse of discretion, see Commonwealth v. Wright, 411

Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014); Commonwealth

v. Sorenson, 98 Mass. App. Ct. 789, 791 (2020), cert. denied,

142 S. Ct. 107 (2021), we discern no reason to disturb the

judge's ruling.

13 As we have noted, the judge decided the defendant's
motion after a nonevidentiary hearing; he outlined his reasoning
in a thoughtful and detailed written memorandum. On appeal, the
defendant does not contend that the judge, who also presided
over the trial, erred in failing to take additional evidence on
the motion.
16

i. Telephone calls. As we have discussed, defense counsel

objected to the introduction of the September 5 call between the

defendant and his father on the ground that it included improper

opinion evidence. In his motion for a new trial, the defendant

argued that counsel should have raised additional objections to

that call, and also should have objected to the scope of the

redactions made to the recordings of other telephone calls

played for the jury. We disagree.

A. Verbal completeness. "When a party introduces a

portion of a statement or writing in evidence the doctrine of

verbal completeness allows admission of other relevant portions

of the same statement or writing which serve to 'clarify the

context' of the admitted portion" (citation omitted).

Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). See Mass.

G. Evid. § 106(a) (2022). The defendant contends that the

September 5 call was redacted improperly to omit his statement,

"I have not instigated any of this," and as a result the

conversation failed to establish that he disputed the victim's

allegations.14 Even assuming that the redacted portion of the

14The following exchange from that call was not part of the
evidence presented to the jury:

Defendant: "Yeah. Everything we say from now until the
end of my trial is going to be recorded."

Father: "I believe that."
17

conversation was admissible under the doctrine of verbal

completeness, the defendant's statement that he had not

"instigated any of this" was not a denial of guilt of the crimes

charged against him. Nor was it inconsistent with the victim's

version of several of the incidents, in which she described

starting arguments that the defendant then escalated. Thus, we

fail to discern in this instance how "better work might have

accomplished something material for the defense." Commonwealth

v. Satterfield, 373 Mass. 109, 115 (1977).

The defendant also argues that two recorded telephone

conversations with the victim were redacted in a manner that

allowed the prosecutor to argue that he was trying to convince

the victim to provide false information to the court by way of a

letter from her therapist in order to "get the [2015] charges

dropped," or allowed the jury to infer that he was urging the

victim to give false testimony. We need not linger on this

argument. Even assuming, without deciding, that trial counsel

fell below acceptable standards in failing to object to the

redactions at issue, see Saferian, 366 Mass. at 96, because

these calls pertained only to the witness intimidation charge on

which the defendant was acquitted, there was no resulting

Defendant: "So how it [sic] that we're going to talk and
talk about this situation? I told you that, you know, I have
not instigated any of this."
18

prejudice to the defendant. See Commonwealth v. Duffy, 62 Mass.

App. Ct. 921, 923 (2004) ("difficult to find that the admission

of the evidence caused prejudice where defendant was acquitted

on two of three indictments" [quotation and citation omitted]).

B. Adoptive admissions. "The theory of adoptive

admissions is straightforward: Where a party is confronted with

an accusatory statement which, under the circumstances, a

reasonable person would challenge, and the party remains silent

or responds equivocally, the accusation and the reply may be

admissible on the theory that the party's response amounts to an

admission of the truth of the accusation" (quotation and

citation omitted). Commonwealth v. Braley, 449 Mass. 316, 320–

321 (2007). See Mass. G. Evid. § 801(d)(2)(B) (2022). At

trial, the Commonwealth presented the defendant's statements in

telephone calls with the victim on April 3 and April 6, 2015, as

adoptive admissions to hitting her in the face and breaking her

nose.15 Trial counsel did not object to the introduction of the

15In the first call, the defendant told the victim, "you
can't be talking on the phone like this, baby," in response to
her statement, "you fucking knocked me right in the nose." The
second challenged conversation contained the following exchange:

Victim: "No it's not, but you broke my nose."

Defendant: "Okay."

Victim: "Plain and simple."

Defendant: "Okay."
19

calls or the Commonwealth's theory. In his motion for a new

trial, the defendant claimed that counsel was ineffective

because his statements were not adoptive admissions. It was

within the judge's discretion to conclude that the defendant's

response, "Okay," to the victim's statement that he had broken

her nose and his statement, "I'm not going to really get into

this because we're on the phone," when she referred to her need

for surgery to repair the broken nose, were admissible as

adoptive admissions by the defendant. Because the calls were

properly admitted at trial, it was not ineffective for counsel

to fail to object to them. See Commonwealth v. McWilliams, 473

Mass. 606, 615 (2016) (counsel not ineffective for failing to

file motion to suppress that would have been unsuccessful);

Commonwealth v. Leng, 463 Mass. 779, 783 (2012) ("An objection

to such properly admitted evidence would not likely have been

successful. Counsel's omission, therefore, does not constitute

ineffective assistance of counsel").

C. Additional objections. The defendant further argues

that counsel was ineffective for failing to object to the

Victim: "I had to go into surgery."

Defendant: "Right, and I'm not going to really get into
this because we're on the phone here. . . ."
20

admission of a portion of his April 11, 2015 telephone call with

the victim about the October 2014 incident in which he broke the

victim's nose.16 He contends that the victim's statements were

irrelevant because that incident did not involve sexual assault

charges; he also claims that they contained multilevel hearsay

and were unduly prejudicial. We disagree. The conversation was

admissible for the nonhearsay purpose of showing the defendant's

state of mind, the victim's state of mind, and the nature of

their relationship. See Commonwealth v. Javier, 481 Mass. 268,

281 (2019) ("evidence may be relevant if it only 'throw[s]

light' on an issue" [citation omitted]); Commonwealth v.

Cruzado, 480 Mass. 275, 280 (2018) ("out-of-court statement not

offered for its truth is not hearsay"). Moreover, the

defendant's claim of undue prejudice is belied by his acquittal

on the relevant charge of witness intimidation. See Duffy, 62

Mass. App. Ct. at 923.

16During the call, the victim indicated that she no longer
wished to speak to the defendant's attorney because she was
concerned that her statement that "we hit each other" would be
"use[d] against [her] in court." In response, the defendant
stated, "[the attorney] told me a lot of stuff that you said
about me . . . . You told her a lot of other stuff, too. . . .
You know, it's the same kind of things that you told my parents,
that -- that, you know, that you make people believe that I'm
using drugs all the time and that when I use drugs that I want
to rape you, so. And that's what you told my attorney."
21

Lastly, the defendant argues that his attorney should have

objected to the admission of telephone calls on September 4 and

5, 2015, between the defendant and his father because the calls

contained inadmissible opinions expressed by his father.17 We

are not persuaded. In both calls, the father's statements were

relevant and admissible to provide context to the defendant's

admissions during the same conversation. See Commonwealth v.

Mullane, 445 Mass. 702, 711 (2006) (statement offered to provide

context for conversation between detective and third party);

Mejia, 88 Mass. App. Ct. at 238. Moreover, the jury's verdicts

acquitting the defendant on five of the charges against him

17In the first call, the father stated that the defendant
"put[] [himself] in a worse position" by calling the victim and
"running."

The father's statements in the second call were more
extensive:

"I won't believe either side 100 percent . . . . Her story
is consistent. . . . What she's saying is that is what
happened. She's not going to lie about it, you know. . . .
I've told you, you know, what she says and what you say and
they're completely different. . . . And that's why we have
told [sic] I think you need some help. You need some
counseling. . . . You know, she consistently says that you
take drugs and that's not that hard to believe. . . . It
means that you're not in your right mind at those
times. . . . I try and give you my best advice . . . and
what you've done is ignore these things and get deeper and
deeper in. You get yourself so deep in I can't help you
anymore. . . . But you're trying to save [a marriage]
that's not worth saving. . . . You tell me . . . we're in
such love. That is not love, Bobby. I hate to tell you."
22

suggest that any unfair prejudicial effect of that evidence did

not outweigh its probative value. See Commonwealth v. Walker,

442 Mass. 185, 201 (2004) (no indication that jury improperly

applied evidence where defendant acquitted of charge to which

evidence did not pertain). Because the statements were

admissible, counsel was not ineffective for failing to object to

their admission. See Leng, 463 Mass. at 783.

ii. Prosecutor's closing argument. The defendant asserts

that trial counsel should have objected to various portions of

the prosecutor's closing argument. First, he contends that two

statements by the victim to the defendant used in the

prosecutor's closing -- that an associate of the defendant's

attorney told "her what to say . . . to get the charges dropped"

and that she was unable to "breathe through one side of [her

broken] nose" -- were hearsay, and that the prosecutor

improperly argued them for their truth. This argument fails

because the defendant did not object to the admission of those

statements, and therefore they were admitted without limitation

and could be argued accordingly. See Carmona, 428 Mass. at 271

("Hearsay, once admitted, may be weighed with the other

evidence, and given any evidentiary value which it may possess"

[citation omitted]).

Next, the defendant claims that the prosecutor misstated

evidence by arguing that a particular medical record showed that
23

the victim was compliant with her mental health medications

except when the defendant took them for his own use. We are

satisfied that the record to which the prosecutor referred

supported her argument.

The defendant further asserts that the prosecutor

improperly stated that there was no evidence of the victim

taking drugs that altered her memory or perception of the 2015

reported abuse. The victim was impeached on cross-examination

with a prior statement that she had ingested Klonopin and was

"in a blackout" the day of the incident, but there was no

substantive evidence that she took her medications that day.

See Commonwealth v. Mandeville, 386 Mass. 393, 400 (1982) ("It

is well established that a witness may explain, modify, or

correct damaging testimony that was elicited during cross-

examination").

Finally, the defendant claims that the prosecutor made a

knowingly false statement when she argued, "Nothing that this

defendant has said in a call or a letter about his version of

events can explain the marks on [the victim] from that incident

or from any of the other incidents."18 Viewing the prosecutor's

statement in the context of the entire closing, however, the

18The defendant stated during a telephone call that the
victim caused her own injuries by punching herself in the face
and smashing her head against a floor, a mirror, and a wall.
24

prosecutor was not denying that the defendant had offered

explanations for the victim's injuries, but rather was

suggesting that his explanations were implausible. See

Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 279 (2021) (no

impropriety in prosecutor's argument to effect that defendant's

version of events "didn't make any sense").

In sum, we agree with the judge's conclusion that there was

nothing improper in the prosecutor's argument. Where there was

no error in the prosecutor's closing, it is axiomatic that there

was no basis for trial counsel to object to it. We therefore

conclude that his failure to do so was not ineffective.

Furthermore, even if any of the challenged portions of the

argument were improper, any risk that the defendant was

prejudiced as a result of those flaws was obviated by the

instructions to the jury regarding the limited purposes of

closing arguments. See Commonwealth v. Reyes, 483 Mass. 65, 77

(2019) (no miscarriage of justice arising from prosecutor's

closing where defense counsel did not object, judge provided

general instruction that closing arguments were not evidence,

and relevant statement "was discussed only in passing").

iii. Medical records and testimony. The defendant further

contends that trial counsel was ineffective for not moving to

redact certain medical records or object to improper hearsay

testimony of medical personnel. We agree that the parts of the
25

medical records describing incidents as "assaults" and

containing statements from the victim that identified the

defendant as the perpetrator, as well as similar information

imparted in the testimony of medical providers, were

objectionable. See Commonwealth v. Dargon, 457 Mass. 387, 396

(2010) (printed language on SANE forms "such as 'assault' and

'assailant'" should be redacted); Commonwealth v. Arana, 453

Mass. 214, 231 (2009) ("a patient's statement of . . . by whom

[injuries were] inflicted, generally is not admissible . . .

even if made to a physician").

Although this showing satisfies the first prong of the

Saferian test, the defendant's argument falters on the test's

second prong. Trial counsel's strategy was to discredit the

victim as an untruthful person. To that end, he extensively

cross-examined the victim on the various versions of events she

provided to police, offered medical records showing that the

victim had "lied" to hospital staff, and forcefully argued to

the jury that "[the victim] lied to everyone she's spoken to."

Because the defense focused on the victim's credibility rather

than the form or details of her complaints about the defendant's

conduct, trial counsel's failure to object to evidence that the

victim reported that the defendant had abused and raped her did

not prejudice the defendant. See Commonwealth v. Medeiros, 456

Mass. 52, 62 (2010) (counsel not ineffective despite failure to
26

seek redaction of medical records that named defendant and

contained "sexual assault" diagnosis where defense was that

victim fabricated incident). That the defense was at least

partially successful -- the jury acquitted the defendant of

several counts of sexually assaulting the victim -- bolsters our

conclusion. See Commonwealth v. Kolenovic, 471 Mass. 664, 674

(2015) (in context of ineffective assistance claim, test is one

of "reasonableness [not] perfection").

iv. Police testimony. Finally, the defendant argues that

trial counsel was ineffective for failing to object to hearsay

testimony from a police detective. The detective testified that

in June 2015 a patrol officer found the victim suffering from

head trauma and medical personnel later treated her for "a

temporal fracture." He also verified that the victim reported

assaults in August 2008, February 2011, October 2014, June 2015,

and July 2015, and that there were police reports pertaining to

those incidents. Absent a showing of relevancy not made here,

such testimony was inadmissible. See Commonwealth v. Stuckich,

450 Mass. 449, 457 (2008) (unnecessary and improper to describe

investigative process in sexual assault trial). We agree that

trial counsel therefore should have objected to it. See

Commonwealth v. Sullivan, 478 Mass. 369, 376 (2017) (use of

hearsay testimony from police "carefully circumscribed" and is
27

admissible only if police knowledge is relevant to issue in

case).

Once again, however, the defendant's ineffective assistance

claim fails for lack of any showing that he was prejudiced by

counsel's error. The defendant did not dispute at trial that

the victim was injured or that she made reports to police.

Instead, he attacked her truthfulness regarding how the injuries

occurred and whether the assault allegations were fabricated.

The detective's testimony was brief, undetailed, and cumulative

of other evidence. We discern no prejudice from its admission.

See Commonwealth v. Barbosa, 463 Mass. 116, 127, 129-130 (2012)

(hearsay testimony from detective should not have been admitted

but no prejudice to defendant because admitted testimony was

cumulative).

3. Conclusion. We affirm the judgments and the orders

denying the defendant's postconviction motion for discovery and

funds and motion for a new trial.

So ordered.