By Joshua Wood
A strong objection to hearsay does not necessarily lead to a successful appeal. Even when a statement may have violated the defendant’s constitutional right to confront a witness, the conviction can stand if the appellate court concludes that any error was harmless beyond a reasonable doubt.
That review ordinarily includes the defendant’s own testimony.
In Commonwealth v. Khadgi, No. 25-P-1208, decided September 24, 2026, the Massachusetts Appeals Court affirmed a conviction for assault and battery on a family or household member. The court acknowledged a strong argument that the complaining witness’s statements to police were testimonial. It nevertheless concluded that any error in admitting them was harmless, considering the officer’s observations, photographs, and the defendant’s testimony.
The decision illustrates how an evidentiary objection and a decision to testify can affect one another, both at trial and on appeal.
1. The Officer Witnessed the Incident, but the Commonwealth Also Relied on the Woman’s Statements
Shortly before 2 a.m., a Cambridge police officer walking through Harvard Square saw Shyam Khadgi striking a woman in the face and arms. According to the officer, Khadgi struck her ten to fifteen times with considerable force.
The officer separated them, arrested Khadgi, and requested an ambulance. The woman was crying, visibly bruised, and initially too distraught to speak. Photographs showed substantial bruising on her face and scratches on her arm.
An ambulance arrived approximately three to four minutes later. While receiving medical treatment, the woman told the officer that the assault had begun before he arrived, that she had been kicked, and that she and Khadgi had been dating for seven years.
The Commonwealth presented its case entirely through the officer. He described what he personally saw and repeated what the woman told him.
Khadgi testified in his own defense. He said that the woman had hit him and that he was trying to defend himself. He also described her as his girlfriend and testified that they had lived together for approximately seven years.
After a trial before a judge without a jury, Khadgi was convicted of assault and battery on a family or household member under G. L. c. 265, § 13M.
2. An Excited Utterance Must Still Satisfy the Right of Confrontation
The defense challenged the woman’s statements before trial and again when the officer repeated them during his testimony.
The objections raised two separate issues: whether the statements qualified for an exception to the hearsay rule and whether admitting them would violate Khadgi’s constitutional confrontation rights.
The motion judge ruled that the statements were admissible as excited utterances. That exception can permit a statement made as a spontaneous reaction to a startling event that has temporarily overwhelmed the speaker’s normal ability to reflect.
But satisfying a hearsay exception does not resolve the constitutional question.
Under Crawford v. Washington, 541 U.S. 36 (2004), the prosecution generally cannot introduce an absent witness’s testimonial statement for its truth unless the witness is unavailable and the defendant previously had an opportunity to cross-examine that witness. A statement can qualify as an excited utterance and still be barred by the Confrontation Clause.
On appeal, Khadgi did not challenge the ruling that the statements were excited utterances. His argument concerned the separate constitutional restriction on testimonial hearsay.
The Appeals Court recognized the strength of that argument. When the woman spoke to the officer, Khadgi was already in custody, she was receiving medical treatment, and the officer had personally witnessed the attack. There was no reason to believe another assailant was involved.
Those circumstances supported an argument that the statements described completed events rather than helped police address an ongoing emergency.
The court did not decide whether the statements were testimonial. It concluded that the conviction would stand even if admitting them was constitutional error.
3. Harmless-Error Review Examines the Entire Trial Record
Because the defense preserved its confrontation objection, the court applied the harmless-beyond-a-reasonable-doubt standard.
That standard requires an examination of whether the challenged evidence affected the finding of guilt. The existence of other evidence supporting a conviction does not, by itself, complete the analysis.
Here, the court considered the evidence establishing the assault separately from the evidence establishing the relationship required by the domestic assault statute.
As to the assault, the officer personally witnessed repeated blows. Photographs documented the woman’s injuries. The prosecutor relied primarily on that firsthand testimony and the photographs in closing argument.
The court therefore regarded the woman’s confirmation of the beating as duplicative of properly admitted evidence. Khadgi did not argue otherwise on appeal.
The relationship element presented a different issue. On that point, the Commonwealth’s own case depended entirely on the woman’s statements.
4. The Defendant’s Testimony Independently Established the Required Relationship
A prosecution under G. L. c. 265, § 13M requires proof of a qualifying relationship in addition to proof of an assault or assault and battery.
For this statute, the qualifying relationships are:
People who are or were married to one another.
People who have a child in common.
People who are or have been in a substantive dating or engagement relationship.
For the third category, the statute directs the fact finder to consider the relationship’s duration, its nature, the frequency of interaction, and, where applicable, its termination and the time since it ended.
In Khadgi’s case, the Commonwealth relied on a substantive dating relationship. The officer’s account of the woman’s statement was the only evidence of that relationship presented during the prosecution’s case.
But harmless-error review did not stop when the Commonwealth rested.
Khadgi later testified that the woman was his girlfriend and that they had lived together for seven years. The Appeals Court concluded that his testimony amply established the required relationship. He also had not disputed that element at trial or in closing argument.
His testimony was therefore central to the conclusion that any error in admitting the woman’s statements was harmless beyond a reasonable doubt.
The court did not treat his testimony as a withdrawal of his objection. It treated that testimony as part of the evidence relevant to whether the challenged statements affected the result.
5. The Court Applied an Existing Rule from Commonwealth v. Mendes
The Appeals Court relied on Commonwealth v. Mendes, 463 Mass. 353 (2012).
In Mendes, the prosecution used drug-analysis certificates to establish that seized substances were cocaine and marijuana. The certificates were inadmissible testimonial hearsay under the governing constitutional rule.
The defendants, however, had testified that they possessed the drugs for personal use. In presenting that defense, they acknowledged the identity of the substances.
The Supreme Judicial Court held that their testimony belonged in the harmless-error analysis. The appellate court had to examine both sides’ evidence. It could not disregard the defendants’ testimony merely because it was difficult to determine whether they would have testified differently had the certificates been excluded.
Khadgi applies that principle to proof of a domestic relationship.
The opinion also notes a limited exception involving testimony prompted by and offered in response to evidence obtained through an unlawful search or seizure. In those circumstances, the testimony itself may be tainted by the constitutional violation. That exception did not alter the result in Khadgi’s case.
6. The Practical Lesson for Preparing a Defense
The decision demonstrates the importance of evaluating evidentiary objections and proposed testimony together.
A defendant may have a sound reason to testify. His account may be necessary to explain the encounter, dispute the officer’s observations, or present a defense. At the same time, that testimony may establish a fact the Commonwealth otherwise proved only through disputed evidence.
Before the defendant decides whether to testify, counsel should assess what the proposed testimony would establish, which elements are genuinely disputed, and how the testimony fits the defense as a whole.
Preserving objections remains essential. Khadgi’s lawyer specifically raised the confrontation issue before trial and renewed the objection when the statements were introduced. That allowed review under the standard for preserved constitutional error.
An effective appellate argument must then address the complete record and explain the significance of the challenged evidence. A persuasive argument that a statement should have been excluded may still require a separate showing of why its admission affected the result.
Q and A
1. Can a Massachusetts domestic assault case proceed without the complaining witness testifying?
Yes, depending on the available evidence. The Commonwealth may rely on admissible testimony from other witnesses and other competent evidence. In Khadgi, the officer personally witnessed the assault, and the defendant’s testimony independently established the qualifying relationship.
The complaining witness’s absence does not automatically require dismissal.
2. Can police repeat everything a complaining witness tells them?
No. An officer’s firsthand observations and the officer’s repetition of another person’s statements present different evidentiary questions. Statements offered for their truth must satisfy the applicable hearsay rules and constitutional requirements.
3. Does an excited utterance automatically satisfy the Confrontation Clause?
No. The hearsay exception and the constitutional right of confrontation require separate analysis. A statement may satisfy the excited-utterance exception and still be inadmissible testimonial hearsay.
4. Did the Appeals Court find a confrontation violation in Khadgi?
No. It acknowledged a strong argument that the statements were testimonial but did not resolve that question. It affirmed because any error was harmless beyond a reasonable doubt.
5. Did Khadgi waive his objection by testifying?
No. The court treated his confrontation objection as preserved. His testimony nevertheless became part of the record used to assess whether the possible error affected the finding of guilt.
6. Does this decision mean a defendant should avoid testifying?
No general rule answers that question. Testimony can be essential to a defense, but it can also establish facts supporting the prosecution. The decision belongs to the defendant after consultation with counsel and careful consideration of the evidence.
Conclusion
Commonwealth v. Khadgi shows why a defense must account for the entire trial. The admissibility of a statement, the proof of each element, and the defendant’s decision whether to testify can all affect the outcome. Those issues deserve careful attention before the evidence is presented.
The Commonwealth bears the burden of proving the charge beyond a reasonable doubt. A prepared defense tests its evidence, challenges inadmissible statements, and ensures that the defendant understands the consequences of the decisions made at trial.
If you or a family member is facing a domestic assault or assault and battery charge in Massachusetts, call Benzaken, Sheehan & Wood, LLP. We can examine the evidence, assess the statements the prosecution intends to use, and help you make informed decisions about your defense. Your liberty deserves careful preparation and a firm insistence that the Commonwealth prove its case. Call us today to discuss the charge and put a plan for your defense in place.