Appeals Court Hears Challenge to Prior‑bad‑acts Evidence and Counsel’s Failure to Engage Expert in Kamath v. Tavaresch (No. 23‑P‑1494)

BOSTON — The Massachusetts Appeals Court heard oral argument March 25 in Kamath v. Tavaresch, No. 23‑P‑1494, where the panel considered two central issues raised by defense counsel: whether evidence of the defendant’s prior bad acts was improperly admitted and whether trial counsel provided ineffective assistance by failing to retain a medical expert to address the timing and appearance of abrasions the victim described.

Defense attorney Lisa Kaur told the three‑judge panel she was asking the court to find that admitting prior bad‑act evidence was “both error and prejudicial error,” arguing the trial judge failed to mitigate prejudice with a clear contemporaneous limiting instruction and that the final charge did not remedy that omission. Kaur cited recent decisions, including Samia (492 Mass. 135 (2023)), for the “importance of specificity and precision in the context of ruling on bad act evidence.”

Kaur also pressed the court on an ineffective‑assistance claim, saying trial counsel did not engage a medical expert to evaluate abrasions the victim described. She argued an expert affidavit opined that the neck marks were consistent with rapid, raking abrasions and that similar abrasions on the victim’s forearms — which the victim testified were caused by being dragged with a fork — should have prompted the defense to retain a specialist. Kaur said the expert’s opinion could have helped cross‑examine the police officer about the timing of his observations and to challenge the Commonwealth’s narrative based on the nurse’s and officer’s differing accounts.

The panel and the Commonwealth questioned the potential effect of such an expert. Caleb Schoelter, for the Commonwealth, said he did not think the proffered testimony “would have moved the needle” and emphasized that scratches are, in his view, “well within the knowledge of a layperson.” Schoelter noted the trial affidavit admitted by trial counsel states he did not engage an expert but does not say whether counsel informally consulted one; he argued the record did not show an expert would have materially altered the defense presentation.

Both sides discussed factual conflicts in the trial record. Kaur pointed to divergent trial testimony: Nurse Coughlin testified she did not see neck marks at any point, whereas a police officer testified he observed red marks and the victim testified the marks appeared after she emerged from a bathroom. Kaur argued an expert could have explained the timing and instantaneous appearance of abrasive injuries and compared those marks with the forearm abrasions documented and photographed in the emergency department records.

The Commonwealth replied that the proffered expert affidavit did not, on its face, go the additional step of stating that the abrasions could not have been inflicted at the time the alleged strangulation occurred, placing weight on the jury’s role in resolving conflicting witness accounts. Both sides addressed how the trial judge instructed the jury about the prior‑act evidence; Schoelter said the limiting instruction given was narrower than typical because it limited the evidence to the victim’s perception of the relationship rather than the existence of a hostile relationship, an approach he described as “less prejudicial to the defendant.”

Counsel also discussed the motion for a new trial decided by Judge Coven, which Kaur said may have understated the significance of the abrasions. The parties cited past appellate decisions during argument, and the panel asked counsel to supply any case not included in briefs to opposing counsel in the customary practice so both sides and the court can review it.

The panel did not rule from the bench. Presiding Judge Ditkoff thanked counsel, the clerk’s office and court staff and announced the court would be adjourned until April 1.

The argument focused on legal standards governing (1) admission and limiting instructions for prior‑bad‑acts evidence and (2) the Strickland‑style ineffective‑assistance inquiry when counsel chooses not to engage a proffered expert. The court will decide on the record whether the evidentiary rulings and trial counsel’s choices meet the standards for reversal or relief on those claims.