Commonwealth v. Edward Lacey.

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-150

COMMONWEALTH

vs.

EDWARD LACEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the Superior Court, the

defendant, Edward Lacey, was convicted of two counts of rape,

three counts of indecent assault and battery, strangulation,

kidnapping, assault and battery, and threat to commit a crime. 1

On appeal, he contends that the Commonwealth improperly

refreshed the victim's memory during a break in her cross-

examination, the prosecutor's misstatement of evidence in

closing argument created a substantial risk of a miscarriage of

1 Although the defendant was charged with, inter alia, armed
kidnapping aggravated by inflicting serious bodily injury, two
counts of aggravated rape, and assault and battery by means of a
dangerous weapon, the judge found him guilty of the lesser
included offenses of kidnapping, rape, and assault and battery.
In addition, the judge found the defendant not guilty of assault
with intent to murder.
justice, and the admission of prior bad act evidence constituted

prejudicial error. We affirm.

Background. The victim met the defendant in May of 2018,

at a homeless shelter in Worcester. On the afternoon of May 11,

2018, she and the defendant smoked "crack" cocaine near the

shelter and later went to the Worcester City Motel to purchase

more drugs. After smoking more crack cocaine at the hotel, and

running out of money to purchase yet more, the victim "laid down

and tried to go to sleep." She woke up to the defendant "trying

to paw" at her. She asked him to stop, but he responded, "You

don't know I'm a little -- I'm a [l]evel [three] sex offender?"

The defendant pinned her down on the bed, struck her multiple

times on her face, choked her with his fists, and strangled her.

The victim tried to fight back and scratched the defendant's

face. The defendant subsequently lifted an old radiator from

the room and struck the victim in the head with it. During the

struggle he said to her, "People that get hurt, hurt people,"

and threatened to kill her and hurt her daughter if she tried to

scream or retaliate in any way. The defendant further told her

that "he had just gotten out of jail from doing the same thing

to another female," and that he "had stabbed [his previous

victim] because she -- 'cause she screamed and tried to get

away." The defendant then vaginally and anally raped the victim

multiple times, and touched her breasts, vagina, and anus. She

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begged him to stop, but to no avail. The rapes and assaults

continued for hours. At some point the defendant forced her to

urinate on his face.

The following morning, the defendant posted on Facebook the

following: "I want everybody on facebook to know that evil was

hard to fight inside of me when someone violates u I wind up

hurting other people . . . sorry that I hurt u as well but it is

time to end this life." He later posted another message to

Facebook that read: "I need u to send police to Worcester city

motel I hurt a young woman [I'm] about [to] kill myself." A

family friend of the defendant read the Facebook post and

contacted the defendant. The defendant told her, "I hurt

someone. Get the police here." During this conversation with

the defendant, the family friend could hear "whimpering" in the

background. At some point the defendant contacted 911 and spoke

with Detective Paul Brown of the Shrewsbury Police Department.

During the call, the defendant admitted to physically and

sexually assaulting the victim. Also, Detective Brown "could

hear a female crying in the background" during the call. 2

Shrewsbury police officers were dispatched to the Worcester City

Motel and observed the victim run toward them. She struggled to

walk and was "panting, struggling to breathe, and appeared to be

2 A copy of the 911 audio was entered in evidence as an exhibit.

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in either shock or just sheer trauma." She "had blood covering

her face . . . Her right eye was swollen shut. Her right cheek

was completely swollen. Her lips were cut." The victim was

transported to the hospital. Her medical records, admitted in

evidence at trial, reflected, inter alia, that her "[f]ace [was]

swollen and [there was] deformed dried blood on [her] face."

The defense at trial centered on consent and challenges to

the victim's credibility. The defendant testified at trial and

claimed that he and the victim had consensual intercourse.

Discussion. 1. Witness communication during recess.

During cross-examination of the victim, the judge ordered a

brief recess. 3 Following that recess, defense counsel asked the

victim if she had reviewed text messages prior to testifying. 4

The victim responded that she "just reviewed some of them . . .

during the break." She further testified that they were shown

to her by the prosecutor. 5 The defendant objected to the victim

reviewing those materials "mid-cross examination," and now

3 The victim asked if she could "have a minute," and, in
response, the judge ordered a fifteen-minute recess.
4 Copies of the text messages between the defendant and the

victim were admitted in evidence as exhibits prior to the
victim's testimony.
5 The prosecutor represented to the judge that the victim asked

to review the text messages during the break and "police
officers" outside the court room "let her read those text
messages." It is unclear whether the prosecutor shared the
messages or whether the victim initiated the request with the
police officers. In any event, these distinctions are
immaterial in the present context.

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claims on appeal that refreshing the victim's recollection

during the recess violated his right to a fair and impartial

trial. The argument is unavailing.

It is well settled that "the scope of cross-examination,

including to what extent the accuracy, veracity, and credibility

of a witness may be tested, rests largely in the sound

discretion of the judge, not subject to revision unless

prejudice is shown to a party by reason of too narrow

restriction or too great breadth of inquiry." Commonwealth v.

Smith, 329 Mass. 477, 479 (1952). "The burden of showing an

abuse of discretion and resulting prejudice is on the defendant,

and our determination must be made by considering the cross-

examination in its entirety." Commonwealth v. Repoza, 382 Mass.

119, 125 (1980). Here, in response to the defendant's

objection, the judge stated that there was not enough

information before him to conclude that the witness's review of

the text messages during a recess, standing alone, was "wrong"

as a matter of law. The judge then stated to defense counsel,

"[i]f you think there's truly something that was improper that

prejudices your client's right to a fair trial, then why don't

you spell it out for me, including if you want to take break to

do that." Defense counsel responded, "I don't think I need to

take a break. I just wanted to preserve my objection in the

case -- to make me cover myself." The judge subsequently

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advised defense counsel, "if your argument is, now, that she

changes -- she changed her testimony in some way, then you

should substantiate that and, then, tell me what it is you want

to do, if I so find." It was incumbent on the defendant to

create a record and demonstrate that the witness or the

Commonwealth had acted inappropriately, and that prejudice

resulted therefrom. See Repoza, supra at 125. This he did not

do. Indeed, rather than accept the opportunity provided by the

judge, defense counsel abandoned the issue. He did not request

a voir dire, pursue further questioning to establish facts to

allow the judge to ascertain whether the witness had been

improperly coached or influenced, or seek any remedy of any

kind. Furthermore, the judge did not restrict defense counsel's

cross-examination of the witness in any way. To the contrary,

the judge advised defense counsel that he could attempt to

"substantiate" the basis for his objection, but he declined to

do so. We further note that the text messages were in evidence

as agreed-upon exhibits, and that the present case was a jury-

waived trial before an experienced judge. See generally

Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 91-92 (2021).

In short, on the record before us we discern no abuse of

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discretion, and further "there is no sign of prejudice."

Repoza, supra at 125. 6

2. Closing argument. The defendant next argues that the

prosecutor erred by stating in closing, "[i]n the immediate

aftermath of that horrible night, the defendant and the

complaining witness said the same thing, 'beaten,' 'physically

assaulted,' 'raped,' 'sexually assaulted.'" Where, as here, the

defendant did not object at trial, our review is limited to

whether there was any error, and if so, whether that error

created a substantial risk of a miscarriage of justice. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Even assuming,

arguendo, that the prosecutor's inclusion of "rape" in the

statement was error, it did not create a substantial risk of a

miscarriage of justice. We reach this conclusion in view of the

6 The defendant's reliance on Commonwealth v. Quincy Q., 434
Mass. 859 (2001), is misplaced. There, the Supreme Judicial
Court held that it was error to allow a prosecutor to refresh a
child witness's recollection during a recess midway through the
child's direct examination. Id. at 871. The court reasoned
that such a procedure could not be condoned in the context of a
child sexual abuse case, where the child could not read, had
difficulty answering the prosecutor's questions, and the
circumstances at hand revealed too much of a risk that the
prosecutor "inadvertently or not, suggested to the child the
desired substance of her testimony during the break." Id. In
those circumstances, which are not present here, the proper
practice would have been to refresh the child's recollection
before the jury using a procedure "similar to that utilized with
any witness who cannot read or cannot read English." Id. at 871
& n.17.

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strength of the Commonwealth's case, the overwhelming evidence

at trial, the defendant's Facebook postings, and the defendant's

admission to Detective Brown in the immediate aftermath of the

incident that he physically and sexually assaulted the victim.

We again note that the present trial was jury-waived, and "[a]

trial judge sitting without a jury is presumed, absent contrary

indication, to have correctly instructed himself as to the

manner in which evidence is to be considered in his role as

factfinder." Commonwealth v. Batista, 53 Mass. App. Ct. 642,

648 (2002). Here, there is no indication that the judge ignored

the well-established rule that closing arguments of counsel are

not evidence.

3. Prior bad acts. Finally, the defendant contends that

the judge abused his discretion in allowing the victim to

testify that the defendant told her, inter alia, that "he had

just gotten out of jail from doing the same thing to another

female . . . that he did it to another female, but he had

stabbed her because she - 'cause she screamed and tried to get

away." We disagree with the argument that the statement was

more prejudicial than probative and constituted prejudicial

error. A judge has discretion in determining "the relevance,

probative value, and prejudice of such evidence," and the

"decision to admit such evidence will be upheld absent clear

error." Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007).

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Evidence of a defendant's prior bad acts "is inadmissible for

the purpose of demonstrating the defendant's bad character or

propensity to commit the crimes charged." Commonwealth v.

Crayton, 470 Mass. 228, 249 (2014). "However, such evidence may

be admissible for some other purpose, for instance, to establish

motive, opportunity, intent, preparation, plan, knowledge,

identity, or pattern of operation. . . . Even if the evidence

is relevant to one of these other purposes, the evidence will

not be admitted if its probative value is outweighed by the risk

of unfair prejudice to the defendant" (quotations and citations

omitted). Id.

Here, the contested statement was admissible as evidence of

the defendant's state of mind, as it reflected his intent toward

the victim. See Crayton, 470 Mass. at 249. Moreover, the

statement was relevant to rebut the defendant's claim of

consent, and thus went to a central issue in the case, making it

more probative than prejudicial. See Mass. G. Evid. § 403 note

(2023) ("In balancing probative value against the risk of unfair

prejudice, the fact that the evidence goes to a central issue in

the case weighs in favor of admission"). In addition, the

evidence was relevant to establishing the use of threats or

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intimidation, an element of the charge of aggravated rape. 7

Finally, in the context of a jury-waived trial there was less

risk that the judge, as fact finder, would have been improperly

swayed by any alleged prejudicial impact of the evidence. See

Batista, 53 Mass. App. Ct. at 648. For all these reasons, we

have little difficulty concluding that the judge did not abuse

his discretion in admitting this evidence.

Judgments affirmed.

By the Court (Green, C.J.,
Neyman & Englander, JJ. 8),

Assistant Clerk

Entered: January 31, 2024.

7 Although the defendant was convicted only on the lesser-
included offense of rape, the question of aggravation was still
a live issue at trial.
8 The panelists are listed in order of seniority.

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