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

22-P-1125

COMMONWEALTH

vs.

TAMAGNINE C. DOSSANTOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions, after a jury 

trial, of assault and battery on a police officer (ABPO), G. L. 

c. 265, § 13D; assault and battery by means of a dangerous 

weapon (ABDW), G. L. c. 265, § 15A (b); and resisting arrest, 

G. L. c. 268, § 32B.1 He raises three issues on appeal. First, 

he argues that the prosecutor asked questions on crossexamination that were designed to elicit opinions about the 

credibility of other witnesses. Second, he argues that the 

officers improperly offered testimony touching on the ultimate 

1 The defendant was charged with two counts of ABPO (Officer Ford

and Officer Boehner), ABDW (door; Officer Ford), disorderly 

conduct, disturbing the peace, threatening to commit a crime, 

and resisting arrest. He was ultimately found guilty of ABPO 

with respect to Officer Ford, ABDW, resisting arrest, and 

disturbing the peace (which was guilty-filed). The defendant 

was acquitted of ABPO with respect to Officer Boehner and of 

threatening to commit a crime.
2

issue of the defendant's guilt. Finally, he argues that 

unpreserved errors in the prosecutor's closing created a 

substantial risk of a miscarriage of justice. We affirm.

Background. We summarize the facts the jury could have 

found, reserving additional facts for later discussion. See

Commonwealth v. Hart, 493 Mass. 130, 131 (2023). On February 3, 

2013, police responded to the defendant's home after his thenwife reported that he was unwilling to transfer the couple's 

youngest child in accordance with a court-ordered custody 

schedule. The defendant did not comply with the officer's 

instruction that the child be released to the wife. Instead, an

argument between the officer and the defendant ensued and,

eventually, the defendant "chest bumped" the officer, pushing 

him into the railing by the staircase. The officer then told 

the defendant, "okay, I've already told you to stop yelling. 

Now you've just assaulted me, so you're under arrest." While 

the officer was trying to place handcuffs on the defendant, the 

defendant closed the apartment door on the officer's arm four or 

five times. A physical struggle followed, and the officer 

eventually pressed the emergency button on his radio to alert 

all available police units and personnel to come to his 

location. Eventually, eight other officers arrived, and the 

defendant was subdued and handcuffed.
3

Discussion. The defendant argues that the prosecutor 

improperly cross-examined him and his mother in a fashion 

designed to have them opine on the credibility of the police 

officers' testimony. "'[A] witness cannot be asked to assess 

the credibility of his testimony or that of other witnesses.'" 

Commonwealth v. Alphas, 430 Mass. 8, 17 (1999), quoting 

Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). The 

defendant argues that a series of questions asking that he 

confirm his own version of events or that of the officers was 

the functional equivalent of asking him to opine on the 

credibility of the officers' conflicting version of what 

happened.2 He makes a similar argument regarding the crossexamination of his mother, which included questions designed to 

have the mother confirm that certain events occurred as either 

the defendant or the mother had previously testified. More 

specifically, the prosecutor asked the mother to confirm that 

she saw a uniformed officer punch the defendant in the nose, 

2 The defendant points to the following questions: "You're in 

the hallway with the officer, and then he just punches you right 

in the face?"; "Isn't it true you said, 'F-you. This is 

America. I ain't doing nothing.' Isn't that true? Isn't that 

more accurate[?]"; "[Y]ou're in the hallway with the officer, 

and then he just punches you right in the face?"; "So this 

officer is in full uniform, told you you're under arrest, and 

you're trying to shut the door on him. Correct?"; and "And even 

though you're on the ground and you have your arms behind your 

back, it's your testimony that three uniformed police officers 

jumped on your back. Correct?"
4

that a "bunch of officers" jumped on top of him, and that an 

officer put his hand over her mouth as she was holding a one 

year old child and told her "to be quiet."

The defendant argues that this line of questioning was 

improper because the "critical issue" before the jury was 

whether to accept the version of events given by the officers or 

that given by the defendant and his mother. See Alphas, 430 

Mass. at 17, quoting Triplett, 398 Mass. at 564. We disagree. 

This is not a case where the witnesses were asked to opine 

directly on another witness's testimony by asking whether it was 

"correct" or whether the other witness had "lied." Contrast

Alphas, supra at 19; Triplett, supra at 566 n.5; Commonwealth v. 

Long, 17 Mass. App. Ct. 707, 708 nn.1, 2 (1984).

Instead, the witnesses were merely asked whether certain 

events had occurred as previously testified to either by 

themselves or another witness. "It was proper for the 

prosecutor to point out, through this line of questioning, that 

there were inconsistencies between the defendant's testimony and 

that of the arresting officer, so long as the defendant was not 

asked to assess the credibility of the arresting officer's 

testimony." Commonwealth v. Johnson, 412 Mass. 318, 327-328

(1992), citing Commonwealth v. Dickinson, 394 Mass. 702, 706 

(1985).
5

The defendant next argues that the police officers 

improperly testified on the ultimate question of the guilt of 

the defendant. "[W]e have long recognized that '[n]o witness, 

including a police witness, may testify as to a defendant's 

guilt or innocence.'" Commonwealth v. Canty, 466 Mass. 535, 540

(2013), abrogated on other grounds by Commonwealth v. Doughty, 

491 Mass. 788 (2023), quoting Commonwealth v. Hamilton, 459 

Mass. 422, 439 (2011). The defendant's argument rests on two 

pieces of testimony. The first came from the first responding 

officer, who testified on direct examination that, after the 

defendant chest bumped him, he told the defendant, "I've already 

told you to stop yelling. Now you've just assaulted me, so 

you're under arrest." The second piece of testimony came from 

the second officer, who testified that he told the defendant 

that "he was going to be placed under arrest and not to resist," 

that the defendant went into a "noncompliant handcuffing 

position," and that "[a] compliant person would just put their 

hands behind their backs, and you could apply the handcuffs." 

The defendant argues that the jury, having heard this testimony,

would conclude without examining the totality of the evidence 

that the defendant had committed an assault and resisted arrest. 

See Commonwealth v. Wardsworth, 482 Mass. 454, 477 (2019), 

quoting United States v. Meises, 645 F.3d 5, 17 (1st Cir. 2011) 

("The usurpation problem that arises when a witness testifies to 
6

opinions based on evidence that was also available to the jurors 

is compounded when the witness is a government agent whose 

testimony -— as here -— is effectively a judgment on the 

question of guilt or innocence"). Because there was neither an 

objection nor a motion to strike, we review for whether the

testimony, if admitted in error, created a substantial risk of a 

miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass. 

App. Ct. 603, 607 (2013).

It is generally advisable for a witness not to refer to an 

incident as an "assault" when the defendant is on trial for 

assault and battery. See Commonwealth v. Duarte, 97 Mass. App. 

Ct. 268, 276 (2020). Additionally, it is generally preferable 

to avoid the use of the word "resisting" when describing a 

defendant's actions during a trial for resisting arrest. See 

Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 470 (2006). 

However, we discern no risk that the isolated references by the 

officers in this case created a substantial risk of a 

miscarriage of justice. To begin with, the jury knew that the 

defendant was on trial for assault charges and for resisting 

arrest. Accordingly, the fact that the police witnesses 

testified that they told the defendant at the scene that he was 

being arrested on such charges added little, if anything, to the 

mix. To be sure, the second officer should have steered away 

from offering a conclusory opinion as to what "compliant people" 
7

do when being arrested, but the officer's testimony did not 

directly offer an opinion on the defendant's guilt. See 

Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 458 (2006), 

quoting Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 581 

(1998) ("Expert testimony must be explanatory, and not 

'presented in conclusory form . . . in terms of whether [the] 

defendant did or did not commit a particular offense,' to avoid 

infringing on the defendant's right to a fair trial"). See also 

Canty, 466 Mass. at 543, citing Commonwealth v. MacDonald, 459 

Mass. 148, 163 (2011) ("Provided that a witness does not 

directly offer an opinion regarding the defendant's guilt or 

innocence in a criminal case . . . we have no rule in 

Massachusetts prohibiting an opinion that touches on an ultimate 

issue"). Moreover, the evidence on the charges was strong, the 

defendant's and his mother's countervailing versions of events 

were at odds with each other and bore signs of inherent 

implausibility, and neutral evidence corroborated the officer's 

testimony. In these circumstances, there is little reason to 

think the jury would have substituted the officer's testimony 

for their own independent assessment of the evidence as a whole. 

We consider further that the judge correctly instructed the jury 

that the Commonwealth bore the burden to prove beyond a 

reasonable doubt the elements of each of the offenses, as well 
8

as on the law of self-defense. See Commonwealth v. Dufresne, 

489 Mass. 195, 208 (2022).

Finally, the defendant argues that the prosecutor made 

improper arguments during closing, resulting in a substantial 

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

101 Mass. App. Ct. 503, 511 (2022). An error during closing 

argument creates a substantial risk of a miscarriage of justice 

"if we have a serious doubt whether the result of the trial 

might have been different had the error not been made." 

Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 91 (2019), 

quoting Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). We 

have no such doubt here.

First, the defendant argues that the prosecutor improperly 

vouched for the police's credibility by stating,

"I mean, you have uniformed police officers, veterans on

the force, midday, full uniform. . . . And these people 

are going to risk their livelihoods by punching the 

defendant in the nose with absolutely no provocation? Does 

that make any sense to you whatsoever? And if they're not 

telling the truth about that, if you found that, how much 

can you trust the rest of what they say?"

"Improper vouching occurs if 'an attorney expresses a personal 

belief in the credibility of a witness, or indicates that he or 

she has knowledge independent of the evidence before the jury.'" 

Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting 

Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). The 

prosecutor offered no such personal belief here; instead, he 
9

pointed to facts and assumptions that tended to bolster the 

credibility of the officers' testimony while undermining the 

plausibility of the defendant's countervailing version of 

events. Indeed, the prosecutor introduced this portion of his 

closing by stating, "[n]ow, [the defendant and his mother] both 

kind of share the story, and respectfully it doesn't make any

sense whatsoever." In this sense, the prosecutor's statements 

were arguably "within the prosecutor's right of retaliatory 

reply" given that defense counsel had argued that the officers 

should not be believed during his closing argument. Kee, supra, 

quoting Commonwealth v. LeFave, 407 Mass. 927, 939 (1990).

That said, the argument was arguably improper because it 

asked the jury to credit the officers' credibility based on an 

assumption that police officers will not engage in conduct that 

endangers their livelihood. There was no evidence to support 

this statement. See Commonwealth v. Zuluaga, 43 Mass. App. Ct. 

629, 647-648 (1997). However, the statement was not objected to 

and we see no substantial risk of a miscarriage of justice 

flowing from it. Among other things, the verdict shows that the 

jury were not tempted to credit the officers' testimony 

wholesale. See Commonwealth v. Howell, 49 Mass. App. Ct. 42, 48

(2000), quoting Alphas, 430 Mass. at 13 ("[T]he jury's acquittal 

of the defendant on three indictments . . . persuades us that 
10

the error did not 'materially influence[]' the guilty 

verdicts").

The defendant also argues that the prosecutor misstated the 

evidence when he stated that the wife "was out on th[e] porch 

for ten to twenty minutes, and it's kind of an explanation as to 

why she didn't see anything going on at that time." The 

defendant argues that this statement is at odds with the wife's 

testimony because (a) the wife did not testify to the amount of 

time she was on the porch, (b) she heard the police say "F-U" to 

the defendant, (c) she heard an officer tell the mother to "shut 

up," and (d) she saw the police on top of the defendant "[w]hen 

[she] was going up the stairs." The defendant's argument is not 

fair to the transcript. To begin with, when asked whether she 

was on the porch for ten or twenty minutes, the wife testified 

"Probably. Something around there." To be sure, the wife also 

testified that she could not tell how long she was on the porch. 

But that does not mean that the prosecutor's argument was not 

supported by the evidence. In addition, because the 

prosecutor's statement was limited to what the wife saw while 

she was on the porch, there is no contradiction with the wife's 

testimony as to what she heard, or as to what she saw while she 

was on the stairs.

The defendant next argues that the prosecutor improperly 

disparaged the self-defense claim and wrongly shifted the burden 
11

to the defense when he argued that "you can't trust that selfdefense claim." See Commonwealth v. Walters, 485 Mass. 271, 289

(2020). Read in context, however, the statement clearly refers 

to the theme that the prosecutor was then developing, which was 

that the defendant had not done what was reasonably necessary to 

avoid physical contact. For this reason, the prosecutor argued, 

the self-defense claim could not be trusted. We see no error. 

See Walters, supra, quoting Commonwealth v. Simpson, 434 Mass. 

570, 586 (2001) ("The realm of appropriate 'forceful' advocacy 

includes commentary on the relative merits of the defendant's 

arguments"). Compare Commonwealth v. Gentile, 437 Mass. 569, 

581 (2002) (improper for prosecutor to label defense's strategy 

of accusing three other people of committing the crime 

"despicable").

Finally, the defendant argues that the prosecutor misstated 

the law when he told the jury that "an assault and battery is 

just [an] intentional touching," and by failing to mention that 

the defendant was permitted to use reasonable force to protect 

himself if unreasonable or excessive force was used during the 

arrest. See Commonwealth v. Ridley, 491 Mass. 321, 328 (2023), 

quoting Commonwealth v. Bins, 465 Mass. 348, 367 (2013) ("In 

closing argument, '[l]awyers shall not and must not misstate 

principles of law'").
12

The fact that the prosecutor did not elaborate on all of 

the elements of the offenses and defenses did not amount to a 

misstatement of law. To begin with, the prosecutor informed the 

jury that the judge would instruct them on the law. In 

addition, the prosecutor was permitted to focus his argument on 

the aspects of the applicable law to which he wished to draw the 

jury's attention in particular. See Commonwealth v. Feroli, 407 

Mass. 405, 409 (1990). Moreover, even were we to assume 

otherwise, there is no claim that the judge did not properly 

instruct the jury.3 We presume that the jurors followed the

judge's instructions, see Commonwealth v. Anderson, 445 Mass. 

195, 214 (2005), and accordingly see no risk of harm flowing 

from the fact that the prosecutor did not fully detail the law 

in his closing.

Judgments affirmed.

By the Court (Wolohojian, 

Englander & Brennan, JJ.4),

Assistant Clerk

Entered: April 3, 2024.

3 The defendant suggests that the judge should have repeated the 

instructions when answering the jury's targeted questions, but 

cites to no case imposing such a duty on the judge. To the 

contrary, "[t]he necessity, extent, and character of 

supplemental instructions in response to a jury request are 

matters within a trial judge's discretion" (citation omitted). 

Commonwealth v. Johnson, 429 Mass. 745, 753 (1999).

4 The panelists are listed in order of seniority.