Commonwealth v. Jerome Fletcher-Dymond.

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

24-P-132

COMMONWEALTH

vs.

JEROME FLETCHER-DYMOND.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial the defendant was convicted of assault

and battery of the victim by means of a dangerous weapon and

related offenses. He challenges the denial of a motion to

dismiss the indictment, the admission of testimony on cell site

location information (CSLI), the denials of motions for required

findings of not guilty, and remarks made by the prosecutor

during closing argument. We affirm.

Background. We summarize the evidence using the familiar

standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979),

reserving additional facts for our later discussion. The

defendant was living with the victim and her children at the

victim's home. On the date in question, the victim was sitting
in her kitchen in the evening when she saw the defendant drive

into the driveway. Because he normally parked on the street,

the victim went outside to ask why he was parking in the

driveway. The defendant drove away and returned five to ten

minutes later. He knocked on the front door and the victim let

him inside the house. The two exchanged pleasantries after

which the defendant went to the basement to retrieve his tattoo

equipment.

As they continued talking, the victim heard a clicking

noise from something the defendant was doing in his right

pocket. She inquired about the noise. After saying there was

nothing in his pocket, the defendant took the victim's phone,

removed a metal baton from his right pocket, expanded it, and

started beating the victim with the baton. He beat her

"everywhere," including on her head and back. She tried to grab

the baton and, at one point, it fell on the floor. The victim

then saw the defendant take a silver knife out of his pocket.

Screaming to her children, the victim ran upstairs. She

knocked on the bathroom door and told her son to stay in the

shower. The victim then ran into her daughter's room. They

closed the door and the victim held it closed while the

defendant kicked, banged, and punched the door. The victim and

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her daughter both called 911; when a neighbor called the victim,

she also asked him to call 911.

The victim heard a voice outside the door that she believed

to be her son's so she opened the door slightly. The defendant

pushed his way into the room. The victim screamed at her

daughter to run and the defendant "came at" the victim with the

knife and started stabbing her. The defendant stabbed the

victim repeatedly, cutting her face, her tongue, her hand, and

her elbow. Trying to end the attack, the victim played dead; in

response, the defendant grabbed her by the hair and slit her

neck. One of the 911 calls remained active at the time of the

knife attack and a recording of it was played for the jury.

At trial, the victim and her son identified the defendant

as the victim's assailant. The daughter's identification of the

defendant was also in evidence.

Discussion. 1. Motion to dismiss the indictment. The

defendant maintains that the evidence before the grand jury was

insufficient to establish that he was the assailant. We are not

persuaded. "When reviewing the sufficiency of an indictment,

the grand jury evidence must be viewed in the light most

favorable to the Commonwealth." Commonwealth v. Barbosa, 477

Mass. 658, 675 (2017). To survive such a motion, the

Commonwealth must show that there was "sufficient evidence to

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establish the identity of the accused." Commonwealth v.

McCarthy, 385 Mass. 160, 163 (1982). "[A] requirement of

sufficient evidence to establish the identity of the accused and

probable cause to arrest him is considerably less exacting than

a requirement of sufficient evidence to warrant a guilty

finding." Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984).

The evidence was sufficient. The victim was the

defendant's sister. She testified extensively and in detail

about his protracted attack on her in her home. She described

him, including the clothes he was wearing on the night of the

attack. A responding police officer testified about

interviewing the victim's children (the defendant's niece and

nephew) who also identified him as the assailant. The cited

contradictions in various grand jury testimony do not undermine

this overwhelming evidence of identity. The motion was properly

denied.

2. CSLI evidence. The defendant claims that the

Commonwealth's expert, detective lieutenant Brian McManus of the

Woburn police department, who testified regarding the CSLI data

from the defendant's cellular telephone, was not properly

qualified to testify as an expert witness. "A trial judge has

wide discretion to qualify an expert witness and to decide

whether the witness's testimony should be admitted. Such a

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decision will be reversed only where it constitutes an abuse of

discretion or other error of law" (quotation and citation

omitted). Commonwealth v. Javier, 481 Mass. 268, 285 (2019).

"The crucial issue, in determining whether a witness is

qualified to give an expert opinion, is whether the witness has

sufficient education, training, experience and familiarity with

the subject matter of the testimony." Commonwealth v.

Richardson, 423 Mass. 180, 183 (1996), quoting McLaughlin v.

Selectmen of Amherst, 422 Mass. 359, 361-362 (1996).

Before trial, the defendant filed a motion in limine to

exclude CSLI from the defendant's cellular telephone on various

grounds including that Det. McManus was not qualified to

authenticate, explain, or opine about the CSLI data suggesting

the defendant's cellular telephone was in the vicinity of the

victim's house at the time of the stabbing. The judge conducted

a voir dire before the jury were empaneled and denied the

motion. We conclude the judge did not abuse his discretion.

The evidence adduced at the voir dire showed that Det.

McManus had a master's degree with a concentration in geographic

information science, which focused on "the use of spatial

databases, analyzing data, and . . . creating spatial

databases." He had received training during his law enforcement

career in CLSI, cellphone forensics, computer forensics, and

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multiple types of mapping software. Det. McManus trained

detectives on the use of digital evidence, including CSLI data.

In addition to his formal education, he had on-the-job

experience; Det. McManus testified that, as a detective, he

worked "hundreds of times" with cell site location data. This

was an adequate evidentiary basis for the judge's conclusion

that Det. McManus was qualified to offer an opinion as an

expert.

"It was not an abuse of discretion to allow [the expert] to
testify to the well-established facts that cellular
telephones connect to towers via radio signals, that CSLI
records indicate the tower to which a particular cellular
telephone connected for a particular call, and that the
device must be within the coverage area of the tower in
order to connect."

Commonwealth v. Wilkerson, 486 Mass. 159, 174 (2020).1 In any

event, as the Commonwealth notes in its brief, the CSLI evidence

as explained by Det. McManus merely corroborated an otherwise

strong case against the defendant.

1 We are equally unpersuaded by the defendant's argument
about the reliability of the software program the detective
used. At the pretrial hearing, he was cross-examined
extensively about the reliability and verifiability of various
types of mapping software and he testified that he used the "top
of the line mapping software" for this case. The judge ruled
that issues relating to validating the software went to the
weight, not the admissibility, of the evidence. This was
grounded in the evidence before him and was not error. See
Commonwealth v. Shepherd, 493 Mass. 512, 536 (2024).

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3. Motions for required findings of not guilty. The

defendant maintains that the judge erred by denying his motions

for required findings of not guilty made at the close of the

Commonwealth's case-in-chief and at the close of all the

evidence. Both motions were properly denied.

We first address the defendant's argument that he was

entitled to required findings of not guilty at the close of the

Commonwealth's case. "The standard for evaluating a motion for

a required finding of not guilty is 'whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

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

James, 424 Mass. 770, 784 (1997), quoting Latimore, 378 Mass. at

677.

The defendant's claim that the evidence was insufficient

fails because, at its core, it asks us to view the evidence in a

light favorable to him. This we cannot do. See Latimore, 378

Mass. at 677. It suffices to note that the victim and two other

members of the defendant's family -- who were eyewitnesses to

the crimes -- identified the defendant as the perpetrator.

Their testimony was corroborated by medical and forensic

evidence in addition to CSLI from the defendant's cellular

telephone. In addition, the defendant argues that the absence

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of evidence regarding motive and deoxyribonucleic acid (DNA)

testing rendered the evidence insufficient. This argument fails

because the Commonwealth is not required to prove motive, see

Commonwealth v. Brooks, 422 Mass. 574, 581 (1996), and the

question before us is not what the Commonwealth did not present,

but what it did. This evidence was sufficient to support the

convictions.

The defendant renewed his motion for required findings of

not guilty after presenting his case, which consisted solely of

his own testimony denying the allegations and claiming that he

was with his girlfriend at the time of the incident. "Because

the defendant's evidence may have caused the prosecution's case

to deteriorate, the judge was required to consider this motion

in light of all the evidence, though again viewing it in the

light most favorable to the Commonwealth." Commonwealth v.

Walker, 401 Mass. 338, 343 (1987). See Commonwealth v.

O'Laughlin, 446 Mass. 188, 198 (2006). The Commonwealth's case

did not deteriorate. "Deterioration would occur not because the

defendant contradicted the Commonwealth's evidence but because

evidence for the Commonwealth necessary to warrant submission of

the case to the jury is later shown to be incredible or

conclusively incorrect" (citations omitted). Commonwealth v.

Pike, 430 Mass. 317, 323 (1999). Here, the jury were free to

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disregard the defendant's testimony in its entirety and there

was no other compelling evidence that caused the Commonwealth's

case to deteriorate. See Walker, supra at 343-344. See also

O'Laughlin, supra at 204 ("the fact that the defendant has

presented evidence that he did not [commit the crime] does not

affect the sufficiency of the evidence unless the contrary

evidence is so overwhelming that no rational jury could conclude

that the defendant was guilty").

4. Closing argument. The defendant challenges two remarks

by the prosecutor in her closing. "A defendant's challenge to a

specific part of a closing argument is analyzed in 'the context

of the whole argument, the evidence admitted at trial, and the

judge's instructions to the jury.'" Commonwealth v. Shanley,

455 Mass. 752, 773 (2010), quoting Commonwealth v. Whitman, 453

Mass. 331, 343 (2009). Because the defendant did not object, we

review to determine whether there was error, and if so, whether

the error created a substantial risk of a miscarriage of

justice. Commonwealth v. Daigle, 379 Mass. 541, 549 (1980).

"We have said that the prosecutor may comment on defense

tactics that the jurors have witnessed themselves."

Commonwealth v. Roberts, 433 Mass. 45, 56 (2000), citing

Commonwealth v. Jackson, 428 Mass. 455, 463 (1998). Compare

Commonwealth v. Gentile, 437 Mass. 569, 581 (2002) (labeling

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defense strategy "despicable" was "a disparagement of the

defense" that "smacks more of an ad hominem attack"). Here,

defense counsel characterized aspects of the police

investigation as "[d]espicable." As the judge acknowledged

during a sidebar after defense counsel's closing, the prosecutor

was "entitled to respond to arguments made by [the] defense."

See Commonwealth v. Witkowski, 487 Mass. 675, 686 (2021). The

prosecutor did just that. First, in describing the defense

theory of the case, she asked the jurors not to "leave [their]

common sense and life experience at the jury deliberation room

door," but to "[b]ring it in and apply it to the arguments the

Defendant wants you to buy in this case because only you can

decide as the jury, whether the arguments put forth by counsel

on behalf of the Defendant truly matter in deciding the ultimate

issues in this case." This was not error, but rather a preview

of part of the instructions by the judge and a nod to the jury's

role. See Commonwealth v. Cook, 419 Mass. 192, 203 & n.9

(1994).

Context assists us in this analysis; the judge instructed

the jury on three separate occasions that closing arguments are

not evidence, or that it was the purview of the jury to evaluate

the evidence. In reviewing the contested statement, we presume

that the jury understood and followed these instructions.

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Commonwealth v. Hernandez, 473 Mass. 379, 392 (2015). Under

this standard, and considering the overwhelming evidence against

the defendant, we are not persuaded that the statement

constituted error.

The defendant also challenges the prosecutor's

characterization of his cross-examination of a police officer as

giving the witness "a hard time." It is well established that

"[a] prosecutor may fairly respond to an attack on the

credibility of the Commonwealth's witnesses."2 Commonwealth v.

Monzon, 51 Mass. App. Ct. 245, 253 (2001). Describing the

examination as "a hard time" was a fair response to the defense

2 Unlike the cases relied on by the defendant, this was not
a personal attack on the defense lawyer. Compare Commonwealth
v. Grandison, 433 Mass. 135, 143 (2001) (improper for prosecutor
to suggest to jury that it was impermissible for defense counsel
to question veracity of police officers); Commonwealth v. Burts,
68 Mass. App. Ct. 684, 687-688 (2007) (improper for prosecutor
to urge jurors to be angry at defense counsel).

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closing and an appropriate counter to a defense tactic witnessed

by the jurors. There was no error.

Judgments affirmed.

By the Court (Vuono, Singh &
Hershfang, JJ.3),

Clerk

Entered: April 2, 2025.

3 The panelists are listed in order of seniority.

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