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-957

COMMONWEALTH

vs.

KIMBERLY MCCULLOUGH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant 

was convicted of armed robbery, assault and battery by means of 

a dangerous weapon, and armed assault in a dwelling. On appeal, 

the defendant maintains that testimony by a police officer, 

elicited on the Commonwealth's redirect examination, violated 

the protections enunciated in Doyle v. Ohio, 426 U.S. 610, 611, 

616-619 (1976). We affirm. 

The defendant and the victim had a history of engaging in 

sex and using cocaine. During one such encounter, the 

defendant's boyfriend rushed into the room wielding a wooden 

table leg and attacked the victim; a melee ensued. The 

defendant took the victim's cell phone and backpack; after the 

three tumbled down a flight of stairs together, the victim 

regained his backpack.
2

When police arrived (summoned by a neighbor), the victim 

was bleeding from the head. The defendant and her boyfriend 

were located less than fifty yards away. There, the defendant 

told an officer that she had drugs on her person. 

At trial, a different police officer testified that he took 

the victim for a "quick drive in the cruiser" past the spot 

where the defendant and her boyfriend were standing. The

testifying officer never spoke with the defendant during this 

drive-by identification. He did, however, "interact" with the 

defendant later at the police station. 

The challenged testimony relates to these two moments: the 

scene where the defendant was apprehended and the "interaction" 

at the station. On cross-examination, counsel asked the 

officer, "You didn't speak to my client, [the defendant]?" and 

the officer responded, "No, I didn't." Counsel also asked, "And 

your report also notes that [the defendant] stated openly that 

she did have some -- a little bit of marijuana and cocaine on 

her?" to which the officer responded, "Yes." 

On redirect, the prosecutor asked:

Q: "Okay. And did you have much one-on-one interaction

with [the defendant]?"

A: "When we got back to the police station."

Q: "Okay. But on scene, you didn't interact with her?"

A: "No."
3

Q: "Okay. And she didn't say anything to you about what

happened on scene?"

A: "No."

Defense counsel objected and, at sidebar, explained that 

she viewed the questioning as inappropriately shifting the 

burden to the defendant, who had a "right to silence." The 

judge agreed to sustain the objection and later did so.1 During 

the ensuing conversation at sidebar, the prosecutor explained 

that he had been "trying to clarify" that the officer was not 

the one who had interacted with the defendant at the scene, and 

that the officer "didn't actually talk to her himself about the 

drug stuff." The judge indicated that he "may have heard [the 

testimony] the same way" as the prosecutor.

When the prosecutor rephrased the question, he made clear 

(1) that he was following up on the question asked during crossexamination about the defendant's admission to having drugs, and 

(2) that the admission was made to another officer, not to the 

testifying officer. There was no objection to this testimony. 

As we understand the defendant's argument, she maintains 

that a Doyle error arose because the officer inappropriately 

testified that the defendant spoke to him, but, when she did,

she said nothing about what had happened at the scene. Like the 

1 Although the judge initially agreed to strike the answer, that 

was not part of his eventual ruling. Counsel did not request 

again that the answer be stricken.
4

trial judge, we do not understand this to have been the 

officer's testimony. Rather, provoked by the questions on 

cross-examination, on redirect the prosecutor sought to have the

testifying officer clarify that the defendant's statement at the 

scene (about having drugs) was made to a different officer. 

Even generously reading the testimony as the defendant 

proposes, we discern no Doyle error. First, as counsel 

acknowledged during oral argument, no motion to suppress was 

filed, and the record contains no evidence as to when the 

defendant was arrested, or when and whether she received her 

Miranda rights. Therefore, we do not know whether the defendant 

had been provided with her Miranda rights when she interacted

with the testifying officer at the police station. Doyle is 

implicated only after a defendant has been advised of her 

Miranda rights. See Commonwealth v. Mahdi, 388 Mass. 679, 694

(1983), citing Doyle, 426 U.S. at 619.

Second, "Doyle held that the exercise of one's Miranda 

rights could not be used for impeachment purposes for two 

reasons: (1) the inherent ambiguity of silence 'because of what 

the State is required to advise the person arrested'; and 

(2) the implicit assurance of the Miranda warnings that the 

defendant's exercise of the announced right will carry no 

penalty." Mahdi, 388 Mass. at 695, quoting Doyle, 426 U.S. at 

617-618. See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 418-
5

419 (2016). Here, there was no evidence that the defendant 

spoke to the testifying officer, or of what she said to him if 

she did speak. The testifying officer did not speak with the 

defendant on the scene, and only "interact[ed]" with the 

defendant at the police station. The nature of this 

"interaction" was not before the jury. The officer may have 

booked the defendant, fingerprinted her, allowed her to make a 

telephone call, or had a conversation with her -- we do not 

know. Because we know neither whether the defendant spoke or 

remained silent, nor whether she received or invoked her Miranda 

rights, this testimony did not implicate Doyle.

Judgments affirmed.

By the Court (Meade, 

Hershfang & D'Angelo, JJ.2),

Clerk

Entered: December 28, 2023.

2 The panelists are listed in order of seniority.