Commonwealth v. Marrero, 10 N.E.3d 1136

Defendant charged with multiple offenses arising from domestic violence: assault and battery causing serious bodily injury (G. L. c. 265, § 13A), assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury, and violation of a G. L. c. 209A abuse prevention order.
Commonwealth admitted a certified (redacted) copy of the c. 209A restraining order to prove that such an order had issued and been served; defendant conceded issuance and service but sought to collaterally attack the affidavit supporting the order.
Judge admitted the redacted c. 209A order over defendant’s objection and later granted a required finding of not guilty on the c. 209A violation charge; that charge was dismissed before jury deliberations on the remaining counts.
On direct exam the victim testified she did not remember being hit; on cross-exam she disclaimed memory of telling a detective she had been hit, and the Commonwealth impeached her with that prior statement.
Defendant raised two appellate challenges: (1) admission of the c. 209A order (and alleged resulting prejudice on other counts); and (2) allowing impeachment of the victim with a prior inconsistent statement despite her claimed lack of memory.
Jury acquitted on assault with intent to murder, convicted on other counts; conviction on the dangerous-weapon count was later dismissed as duplicative at sentencing. Judgment affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of certified c. 209A order	Prosecution: authenticated government record proving an order issued and served	Defendant: order’s underlying affidavit was legally insufficient; therefore order should be excluded or open to collateral attack	Court: collateral attack barred; certified order admissible; judge did not abuse discretion
Prejudice from admission of c. 209A order on other counts	Prosecution: limiting instruction and dismissal of 209A count prevent prejudice	Defendant: jury may have been unduly influenced by the order’s admission	Court: limiting instruction adequate; acquittal on the gravest charge supports lack of undue prejudice
Impeachment with prior inconsistent statement when witness claims lack of memory	Prosecution: prior statement may be used to impeach where judge finds inconsistency	Defendant: a present failure of memory is not inconsistent with prior memory; impeachment improper	Court: judge acted within discretion; prior statement could be treated as inconsistent and used for impeachment
Whether impeachment implicated prior-bad-act rule (404(b))	Prosecution: impeachment purpose, not substantive use of prior bad act	Defendant: prior statement concerned a prior bad act and was thus inadmissible	Court: admissibility reviewed for abuse of discretion; judge properly handled impeachment and limiting instruction

Commonwealth v. Silva, 431 Mass. 401 (establishing standard proof method for existence of c. 209A orders)
Commonwealth v. Dodge, 428 Mass. 860 (collateral attack doctrine; must obey order until reversed)
Commonwealth v. Rauseo, 50 Mass. App. Ct. 699 (authenticated copy of 209A order is standard proof)
Commonwealth v. West, 312 Mass. 438 (prior inconsistent statement need not be a literal contradiction)
Commonwealth v. Martin, 417 Mass. 187 (memory-on-the-stand principle regarding inconsistency and impeachment)
Commonwealth v. Davis, 58 Mass. App. Ct. 412 (limiting instruction can cure prejudice from evidence of dismissed counts)
Commonwealth v. Jackson, 384 Mass. 572 (presumption that juries follow limiting instructions)
Walker v. Birmingham, 388 U.S. 307 (limits on collateral attacks and exceptions)