Commonwealth v. Claudimy Lessage.

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-932

COMMONWEALTH

vs.

CLAUDIMY LESSAGE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial that ended in a mistrial, the

defendant was convicted by a second jury of assault and battery

on a family or household member in violation of G. L. c. 265,

§ 13M (a). On appeal, the defendant raises four claims:

(1) the second trial was barred by double jeopardy and

collateral estoppel; (2) the judge erred by admitting the

recording of a 911 call, which he asserts should have been

excluded as a sanction for the Commonwealth's failure to timely

provide it prior to trial; (3) the combination of the

prosecutor's comment regarding missing witnesses and the judge's

improper missing witness instruction created reversible error;

and (4) the prosecutor's misstatement concerning evidence of
injury to the victim's back and stomach, which the judge failed

to sufficiently address with a curative instruction, created

reversible error.

We conclude that the judge improperly gave the jury a

missing witness instruction and that error in combination with

other errors requires us to vacate the defendant's conviction.

Background. Around 7 P.M. on June 28, 2022, police

responded to a 911 call for a disturbance. The caller told the

911 operator that his mother's boyfriend had attacked his

mother. The mother was subsequently identified as M.P.,1 the

boyfriend as the defendant, and the caller as M.P.'s son. While

on the phone, the son stated, "Oh, bro. He just hit my mom in

the face." He later stated, "He dropped my mom. He dropped my

mom." The son identified his mother's boyfriend by his first

name: "Claudimy." Throughout the duration of the call, a woman

can be heard crying and loudly screaming in the background.2

When Officers Padraig Calnan and Kevin Purifory arrived,

they were met by the son, a male teenager, approximately fifteen

years old, at the front door. Calnan entered the apartment

1 We refer to the victim by her initials. See G. L. c. 265,
§ 24C.

2 A recording of the 911 call was played for the jury and
entered in evidence.

2
first.3 He testified that he looked up the staircase inside the

doorway and saw feet at the top of the stairs. He then climbed

the stairs and saw the defendant holding M.P. by the back of her

shirt. She was on her side struggling and screaming. The

defendant reached down and "lightly punched" M.P. in the back.

Purifory entered the apartment a few seconds after Calnan

and saw the defendant pulling M.P. up the stairs while she was

lying on the stairs. Unlike Calnan, Purifory did not see the

defendant strike M.P.

Both officers testified that, upon Calnan's command, the

defendant let go of M.P. Purifory then brought M.P. downstairs

and into the kitchen. At the time, M.P. was screaming. A

photograph of M.P., showing significant bruising around her left

eye, was entered in evidence.

The defendant testified at trial and provided a different

version of events. He claimed that he had an argument with M.P.

after he told her he had been speaking with a female cousin on

the phone in their bedroom.4 M.P. accused him of lying. She

demanded his phone and when he refused to give it to her, she

3 Neither of the responding officers testified that they had
spoken with the son and they did not identify him by name at
trial.

4 At trial the defendant referred to M.P. as his wife.
There is no dispute that the two were married at that time.

3
tried to pull it out of his hands. She was bigger and stronger

than him. As she was pulling, she lost her grip on the phone,

fell, and struck her head. After M.P. fell, she "went down the

stairs crying." The defendant stayed in his bedroom, where the

police found him and arrested him.

The defendant denied that he hit M.P. in the face or that

he "dropped" her. He claimed that M.P.'s son was not home at

the time of the confrontation. The defendant said the son came

in after the confrontation, saw his mother crying, and called

911 at that point.

A District Court complaint issued, charging the defendant

with assault and battery on a family or household member, in

violation of G. L. c. 265, § 13M (a) (count one) and assault

and battery on a pregnant victim, in violation of G. L. c. 265,

§ 13A (b) (count two). At the first trial, M.P. asserted her

marital privilege and did not testify. Neither did her son. As

a result, the Commonwealth could not prove that M.P. was a

family or household member, and so the Commonwealth proceeded on

count two only.5 The jury could not reach a verdict and the

judge declared a mistrial.

5 As discussed below, by the time of the second trial, the
Commonwealth had obtained a recording of the 911 tape on which
it relied to prove that M.P. was a family or household member.

4
At the second trial, which took place two weeks later

before a second judge, M.P. again asserted her marital

privilege; however, by this time, the Commonwealth had obtained

the 911 tape and therefore could prove that M.P. was a family or

household member. Accordingly, the prosecutor informed the

judge that it would proceed on both counts. Following the close

of the Commonwealth's case, the judge allowed the defendant's

motion for a required finding on count two due to a lack of

evidence that the defendant knew M.P. was pregnant. The jury

found the defendant guilty on count one. The defendant filed a

timely notice of appeal.

Discussion. 1. Missing witness issues. We begin our

discussion with the errors that stemmed from (1) the fact that

M.P. was unavailable to testify because she asserted her marital

privilege and (2) the fact that neither party called the son.

The defendant argues that the judge committed two errors in the

circumstances presented: (1) she invited the prosecutor to make

an improper burden-shifting argument and (2) she then gave a

missing witness instruction permitting the jury to draw an

adverse inference against the defendant based on his failure to

call M.P. and her son. We agree with the defendant that, as the

Commonwealth concedes, the judge erred by giving a missing

witness instruction and conclude that, despite the strength of

the Commonwealth's evidence, that error created a substantial

5
risk of a miscarriage of justice when considered in combination

with other errors, including the unwarranted invitation to the

prosecutor to make an improper argument, which the prosecutor

did.

The issue arose as follows. In his closing argument,

defense counsel highlighted the fact that neither the 911 caller

nor M.P. testified. He argued:

"you heard a 911 call, . . . we don't even have a last
name. We don't have the age of this person, and this
person didn't testify. . . . [D]on't you think you
would want to hear from this person . . . ? Don't you
think I should get an opportunity to ask this person
questions to see if this person has any motives, to
see if there's any inconsistencies? . . . Then think
of who else we didn't hear today. Well, [M.P.],
right? This whole case is supposedly about her.
She's the complaining witness in the case. She's the
most important person. She could tell you what
happened. She didn't see a small snippet like Officer
Calnan did. She was presumably the best witness. She
was there for the entire events, but she didn't
testify today. And the Commonwealth has the burden of
proof in this case."

Immediately after defense counsel completed his argument,

the judge called the parties to sidebar and said, "when you're

going to argue to the jury that they [can] . . . make an

inference as to why the witnesses are absent, you need to tell

me that . . . . I'm going to allow [the prosecutor] to argue

that those witnesses were just as accessible to [defense

counsel] as they were to the Commonwealth." (Defense counsel

responded, "I don't think I said the Commonwealth to call them

6
[sic], but it is their burden of proof." The judge stated that

the prosecutor could, if he wanted to do so, "say those

witnesses were just as available to the defense as they were to

the Commonwealth." Defense counsel acknowledged that he "could

have tried to get in touch with" M.P.'s son.

In his closing, the prosecutor argued: "I would also point

out defense counsel made a lot of hay about witnesses that the

Commonwealth could have, should have called not being here. I

would point out to you the defense also could have called those

witnesses and he did not."

Defense counsel objected to the prosecutor's comment. He

reminded the judge, "I said it was the Commonwealth's burden of

proof and that [M.P.] didn't testify. I didn't say that they

didn't call her."6 The judge responded as follows:

"No, you said . . . there were two witnesses that they
had available to them who did not testify, which is
why I allowed [the prosecutor] the leeway to do
that. . . . [Y]ou most certainly did say on several
occasions that the Commonwealth didn't call these two
witnesses. . . . [Y]ou inferred . . . that in fact
[M.P.] was available and the Commonwealth . . .
determined they didn't want to call her."

During her final charge, the judge gave parallel missing

witness instructions relating to both the defendant and the

Commonwealth. She thereby invited the jury to consider whether

6 As noted above, M.P. asserted her marital privilege and
therefore was not available to either party.

7
to draw adverse inferences against either party based on their

failure to call relevant witnesses. The defendant did not

object to this instruction.

As a preliminary matter, it is debatable whether defense

counsel made a missing witness argument or merely argued that

the Commonwealth had failed to produce sufficient evidence to

satisfy its burden of proof.7 Even if we were to assume that

defense counsel's argument was improper, the judge should have

instructed the jury to disregard it. See Commonwealth v. Pena,

455 Mass. 1, 15-17 (2009). Instead, as previously noted, she

made two errors.

First, the judge invited the prosecutor "to argue that

[M.P. and her son] were just as accessible to [the defense] as

they were to the Commonwealth." The prosecutor accepted the

invitation and argued that "the defense also could have called

[M.P. or her son] and he did not." This was an improper burden-

shifting argument. "A prosecutor cannot . . . make statements

that shift the burden of proof from the Commonwealth to the

7 The Supreme Judicial Court explained the distinction
between these two types of argument in Commonwealth v.
Salentino, 449 Mass. 657, 672 (2007). "Nothing . . . prohibits
a defense attorney from arguing to the jury, in a case where
there is no missing witness instruction, that the Commonwealth
has not produced sufficient evidence to warrant a conviction
beyond a reasonable doubt. This is standard argument that can
be made in any case." Id.

8
defendant." Commonwealth v. Amirault, 404 Mass. 221, 240

(1989). "[A] prosecutor shifts the burden of proof" by calling

"the jury's attention to the defendant's failure to call a

witness or witnesses." Commonwealth v. Tu Trinh, 458 Mass. 776,

787 (2011). This violates the defendant's constitutional rights

because, "[i]n each case, the prosecution is signaling to the

jury that the defendant has an affirmative duty to bring forth

evidence of his innocence, thereby lessening the Commonwealth's

burden to prove every element of a crime." Id.

Second, the judge gave an improper missing witness

instruction. Again, assuming, arguendo, that defense counsel

made a missing witness argument based on the Commonwealth's

failure to call M.P. and her son, the proper course of action

would have been for the judge to instruct the jury to disregard

it.

The rationale for a missing witness inference is that if a

party has knowledge of a person who is available and not

hostilely disposed towards them, who could give "testimony of

distinct importance to the case," the party "would naturally

offer that person as a witness" (citation omitted).

Commonwealth v. Smith, 49 Mass. App. Ct. 827, 829-830 (2000).

If the party does not offer that person as a witness, jurors may

"infer that that person, had he been called, would have given

testimony unfavorable to the party" (citation omitted). Id.

9
"Because the inference, when it is made, can have a seriously

adverse effect on the non-calling party -- suggesting, as it

does, that the party has willfully attempted to withhold or

conceal significant evidence -- it should be invited only in

clear cases, and with caution." Commonwealth v. Schatvet, 23

Mass. App. Ct. 130, 134 (1986). "Circumspection in this matter

is especially called for where the inference would run against a

defendant in a criminal prosecution, for the inference may come

uncomfortably close to invading constitutional rights,"

including "the privilege against self-incrimination . . . and

the Commonwealth's fixed burden to prove guilt beyond a

reasonable doubt." Id. at 135 & n.10.

As we have noted, the Commonwealth concedes that the judge

erred in giving a missing witness instruction based on the

defendant's failure to call M.P. or her son. We agree. M.P.

had asserted her marital privilege. Therefore, she was

unavailable to both parties. Commonwealth v. DiPietro, 373

Mass. 369, 382 (1977) (witness who exercises privilege not to

testify is unavailable); Commonwealth v. Springfield Terminal

Ry. Co., 80 Mass. App. Ct. 22, 42 & n.31 (2011) (trial judge

properly declined to give missing witness instruction against

Commonwealth for witness who had invoked Fifth Amendment

privilege).

10
As to M.P.'s son, the defendant had a reasonable basis for

not calling him as a witness. The defense could draw a fair,

and indeed obvious, inference that the son would be biased in

favor of his mother and against the defendant. See Commonwealth

v. Resendes, 30 Mass. App. Ct. 430, 431-434 (1991) (no

foundation for missing witness inference when witness and

defendant had unfriendly relationship).

Although defense counsel objected to the prosecutor's

burden-shifting argument, he did not object to the judge's

missing witness instruction. As explained below, because the

prosecutor also misstated the evidence, and the defense lodged a

timely objection to that error, we will consider the cumulative

prejudicial effect of both of the prosecutor's errors under the

prejudicial error standard. See Commonwealth v. Borodine, 371

Mass. 1, 9-11 (1976) ("the prejudicial impact of the

prosecutor's charge should be assessed by looking at the

combined effect of all his errors"); Commonwealth v. Griffith,

45 Mass. App. Ct. 784, 785 (1998) ("When proper objections have

been taken in some instances, unobjected-to faults may be

cumulated and weighed with those claims of error that have been

adequately preserved").

2. The prosecutor's misstatement of the evidence. The

prosecutor erroneously asserted that M.P.'s medical records,

which were admitted in evidence as "trial exhibit 1," referenced

11
injuries to her "back and stomach."8 Defense counsel objected.

In fact, as the judge recognized, the redacted medical records

did not indicate that M.P. suffered any injuries to her back or

stomach. To the contrary, they indicated, "There is no

tenderness on exam of back and abdomen."

"A prosecutor may not use closing argument to argue or

suggest facts not previously introduced in evidence" (quotation

and citation omitted). Commonwealth v. Beaudry, 445 Mass. 577,

580 (2005). See Commonwealth v. Rutherford, 476 Mass. 639, 643

(2017) ("closing arguments must be limited to facts in evidence

and the fair inferences that may be drawn from those facts").

See also Commonwealth v. Niemic, 483 Mass. 571, 592 (2019) ("a

prosecutor may not argue facts not in evidence or misstate the

evidence").

Because defense counsel made a timely objection to this

misstatement, we review to determine whether it was prejudicial.

See Commonwealth v. Hrabak, 440 Mass. 650, 657 n.6 (2004).

"Where, as here, the prosecutor argued facts in
closing argument that find no support in the evidence
at trial and where that error is preserved by a timely
objection, the error is nonprejudicial only if we are

8 To be clear, we do not imply that the error here was
intentional. As the prosecutor explained to the judge, the
redacted portion of the medical records indicated that M.P. had
reported injuries to her back and stomach during the medical
exam, but the exam revealed "no tenderness" of the "back and
abdomen." That said, even unintentional misstatements have
consequences.

12
sure that the error did not influence the jury, or had
but very slight effect" (quotation and citation
omitted).

Commonwealth v. Tate, 486 Mass. 663, 669 (2021). In determining

whether the error was prejudicial, we consider the following

factors: "[1] whether the error[s] [were] limited to collateral

issues or went to the heart of the case; [2] what specific or

general instructions the judge gave the jury which may have

mitigated the mistake[s]; and [3] whether the error[s], in the

circumstances, possibly made a difference in the jury's

conclusions" (citation omitted). Id. "[T]he entire record,

including the balance of the prosecutor's argument, [is]

relevant in determining whether the error was prejudicial to the

point of requiring a reversal of the conviction" (citation

omitted). Id.

a. Heart of the case. First, the error "went to the heart

of the case" (citation omitted). Tate, 486 Mass. at 669. The

central issue was whether the defendant struck M.P. One of the

responding police officers testified he saw the defendant

"lightly punch" M.P. in the back. Thus, evidence of a back

injury in the medical records would have corroborated the

officer's testimony. Misstatements of the evidence that "[go]

to the heart of the case" are particularly prejudicial. See

Commonwealth v. Silva-Santiago, 453 Mass. 782, 808 (2009).

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b. Curative instructions. Second, even after the

defendant objected to the prosecutor's error, and the judge

acknowledged it was error, the judge did not give a specific

curative instruction. Instead, the judge simply stated, "It

will stand for itself." The judge did give a general

instruction that

"the opening statements and the closing arguments of
each of the lawyers are not a substitute for the
evidence. Those statements are only intended to
assist you in understanding the evidence and the
contentions of each of the parties. If your memory of
the testimony differs from the attorneys, you are to
follow your own recollection."

But a general instruction did not sufficiently address the

problem. See Beaudry, 445 Mass. at 585 (reversal warranted

notwithstanding judge's instruction that "closing arguments are

not evidence, and that jurors should rely on their memory of the

evidence if their memory is different from that of an attorney";

instructions were "standard fare" that "[did] not address the

particular problem . . . . [T]he prosecutor was inviting the

jury to draw an inference that could not be supported by the

record"); Commonwealth v. Santiago, 425 Mass. 491, 501 (1997)

(same).

c. Impact on the jury. Third, we consider "whether the

error[s], in the circumstances, possibly made a difference in

the jury's conclusions" (citation omitted). Tate, 486 Mass. at

669. In considering whether the errors possibly made a

14
difference in the jury's conclusions"9 we must consider all the

errors in the prosecutor's closing "collectively." Silva-

Santiago, 453 Mass. at 807. Therefore, we must consider the

combined effect of the prosecutor's erroneous claim that the

medical records referenced injuries to M.P.'s back and stomach,

and his erroneous claim that the defendant could have called

M.P. to testify, which, as we have discussed, was exacerbated by

the judge's erroneous instruction that the jury could "infer

that [M.P.'s and her son's] testimony would not have been

favorable to the defendant."

To begin, we recognize the Commonwealth presented a strong

case in the second trial. Most importantly, it introduced a 911

call in which M.P.'s son related what he said he was seeing in

real time. Specifically, he said that the defendant hit his mom

in the face and a woman could be heard screaming in the

background. He also said that the defendant "dropped" his mom.

In addition, the Commonwealth introduced a photograph of M.P.

depicting a bruise to her left eye. This evidence tended to

corroborate Calnan's observations and contradicted the

defendant's testimony. At the same time, however, we note that

9 See Tate, 486 Mass. at 669 ("the error is nonprejudicial
only if we are sure that the error did not influence the jury,
or had but very slight effect" [quotation and citation
omitted]).

15
both of these errors bore upon the defendant's credibility, and

therefore, we cannot say that the errors had only a "slight

effect." See Tate, 486 Mass. at 669, quoting Commonwealth v.

Alvarez, 480 Mass. 299, 305 (2018).

In reaching our conclusion, we note that the prosecutor

relied on his mischaracterization of the medical records to

impeach the defendant's credibility:

"Now the defendant has testified that he never hit the
victim. According to him, he was trying to keep the
victim from taking his phone and when he lost his grip
on the phone, the victim fell and injured herself. That
explanation is completely inconsistent with the injuries
the victim suffered. The victim falling in that way
might explain injuries to her back or it might explain
injuries to her front, but it does not explain both."

In fact, the redacted medical records did not indicate that M.P.

had suffered a back injury. Therefore, after excising the

prosecutor's erroneous claim, the defendant's assertion that M.P.

fell while trying to seize his phone "might" as the prosecutor

acknowledged, "explain injuries to her front."10

Considering the two errors collectively, we conclude that

it is "possibl[e]" that they "made a difference in the jury's

10In addition, because the jury had been informed that M.P.
was pregnant at the time of [the alleged assault and battery]
and that the defendant knew or had reason to know that [she] was
pregnant, there was a risk that the prosecutor's improper
reference to stomach injuries had an unduly prejudicial effect
that was likely to produce an emotional response or even bias in
the jury.

16
conclusions" (citation omitted). Tate, 486 Mass. at 669. The

prosecutor's misstatement of the evidence impeached the

defendant's credibility, and the judge gave only a general

instruction that closing arguments are not evidence, despite

knowledge of the misstatement. Moreover, the judge erroneously

authorized the prosecutor to argue that the defendant could have

called M.P. and her son and then erroneously authorized the jury

to infer that the defendant did not call M.P. and her son

because their testimony would have been unfavorable to the

defendant. See Niemic, 483 Mass. at 595. See also Commonwealth

v. Giberti, 51 Mass. App. Ct. 907, 909 (2001) (substantial risk

of miscarriage of justice where judge gave unwarranted missing

witness instruction and "decisive" issue was "credibility"

[citation omitted]). In sum, this is one of those rare cases in

which the cumulative prejudicial effect of multiple errors

creates a possibility of a different outcome, notwithstanding

strong evidence of guilt.

3. Double jeopardy. The defendant asserts that due

process principles prohibited the Commonwealth from pursuing

count one (assault and battery on a family or household member).

The Commonwealth concedes that in the first trial, it did not

introduce any evidence that M.P. was a family or household

member of the defendant and, therefore, that double jeopardy

principles barred the trial of the defendant on that count at

17
the second trial. We agree. "[J]eopardy . . . terminates when

the Commonwealth fails to present evidence legally sufficient to

convict, the defendant moves for a required finding of not

guilty, and the judge declares a mistrial after the jury has

failed to agree on a verdict." Berry v. Commonwealth, 393 Mass.

793, 799 (1985).

4. Admissibility of 911 recording. In the event of a

retrial on the lesser included offense of assault and battery,

we address the defendant's claim that the judge abused her

discretion in declining to exclude the 911 recording on the

ground that the Commonwealth violated its obligations to produce

the recording prior to the day of the second trial. On the

morning of the first day of second trial, the Commonwealth filed

a motion in limine to admit the 911 recording. The defendant

objected on the ground that the Commonwealth had not previously

provided him with the name of the 911 dispatcher. The judge

granted the Commonwealth's motion after defense counsel admitted

he was aware of the existence of the 911 recording prior to

trial and the Commonwealth made the 911 dispatcher available for

a voir dire. On appeal, the defendant claims for the first time

that the 911 recording should have been excluded because he was

not given a copy of the 911 recording during pretrial discovery.

We conclude that the judge did not abuse her discretion in

admitting the 911 recording. At trial, defense counsel never

18
claimed that the Commonwealth had withheld the 911 recording.

Moreover, the judge conducted a voir dire of the 911 dispatcher

prior to trial, providing adequate notice of his testimony.

Conclusion. On the charge of assault and battery on a

family or household member, the judgment is vacated. So much of

the verdict on that charge as finds the defendant guilty of the

lesser included offense of assault and battery is set aside, and

the defendant may be retried on that portion of the charge if

the Commonwealth so chooses; on the remaining portion of the

charge ("on a family or household member"), a verdict shall

enter for the defendant.

So ordered.

By the Court (Vuono, Henry &
Wood, JJ.11),

Clerk

Entered: September 5, 2025.

11 The panelists are listed in order of seniority.

19