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 crossexamination, 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. 
2

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 
3

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. 
4

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. 
5

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 crossexamination 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 
6

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 jurywaived 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 
7

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. 
8

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). 
9

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 
10

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 lesserincluded offense of rape, the question of aggravation was still 

a live issue at trial.

8 The panelists are listed in order of seniority.