Confrontation Rights and Harmless Error in a Family or Household Member Assault Case: Commonwealth v. Khadgi

By Attorney Joe Serpa | Georgetown University Law Center

September 28, 2026

Shortly before 2 A.M., a Cambridge police officer walking through Harvard Square saw Shyam Khadgi striking a woman in the face and arms. The officer saw Khadgi strike her ten to fifteen times, hard enough to lift his own foot off the ground. The officer separated the two people, arrested Khadgi, and called an ambulance. The woman was extremely distraught and could not speak to the officer at first. Her face was bruised and she was crying, and photographs later showed large bruises on her face and scratches on her arm. After the ambulance arrived and she began receiving medical care, she told the officer that Khadgi had been beating her for about eight minutes before the officer arrived, that he had kicked her, and that the two of them had been dating for seven years. The woman did not testify at trial. A judge of the District Court, sitting without a jury, found Khadgi guilty of assault and battery on a family or household member under G. L. c. 265, § 13M.

Read the full decision: Commonwealth v. Khadgi, No. 25-P-1208 (Mass. App. Ct. Sept. 24, 2026).

The confrontation issue

The Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights give a defendant the right to confront and cross-examine the witnesses against him. Under Crawford v. Washington, 541 U.S. 36 (2004), the prosecution cannot introduce a testimonial out-of-court statement against a defendant unless the person who made the statement testifies and is cross-examined. A statement is testimonial when a person makes it to establish past events for a later prosecution, rather than to help the police respond to an ongoing emergency.

Because the woman did not testify, the Commonwealth proved its case entirely through the responding officer, including the woman’s statements to him. Before trial, a District Court judge ruled that the statements were admissible as spontaneous utterances, meaning statements made under the stress of a startling event. On appeal, Khadgi did not challenge that hearsay ruling. He argued instead that the statements were testimonial, so admitting them violated his right of confrontation.

Why the Appeals Court described the confrontation argument as strong

The Appeals Court agreed that Khadgi had a strong argument that the statements were testimonial. By the time the woman spoke to the officer, Khadgi was already under arrest, the officer had personally witnessed the assault, and the woman was receiving medical treatment and was about to be taken to a hospital. The court explained that statements are ordinarily testimonial when the emergency has ended and the statements describe past events rather than help the police address a present danger. See Commonwealth v. Rand, 487 Mass. 811, 826 (2021). See also Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 326 (2016).

Why the conviction still stood: harmless error

The Appeals Court affirmed Khadgi’s conviction. The court did not decide whether admitting the statements violated the confrontation right, because it held that any error was harmless beyond a reasonable doubt. When a defendant preserves a confrontation objection at trial, an appellate court upholds the conviction only where it is satisfied beyond a reasonable doubt that the improperly admitted evidence did not affect the verdict. The court weighs the properly admitted evidence and the improperly admitted evidence together across the whole record. See Commonwealth v. Gordon, 496 Mass. 554, 584-585 (2025).

Two features of the record made the error harmless. First, the officer personally witnessed the beating and the photographs showed the woman’s injuries, so the woman’s account of the beating added nothing the properly admitted evidence had not already proven. Second, the Commonwealth had to prove that Khadgi and the woman were family or household members, which for this charge means that they were or had been in a substantive dating relationship. In the Commonwealth’s own case, only the woman’s statements established that relationship. Khadgi, however, testified in his own defense that the woman was his girlfriend and that they had lived together for seven years.

The rule that a defendant’s own testimony counts against him

The Appeals Court relied on Commonwealth v. Mendes, 463 Mass. 353 (2012). In Mendes, the Supreme Judicial Court held that a court deciding whether a constitutional error is harmless considers both the Commonwealth’s case and the defendant’s case. The defendants in Mendes had testified about the drugs after the prosecution introduced drug certificates that the United States Supreme Court later held were improperly admitted testimonial hearsay in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Supreme Judicial Court considered the defendants’ own testimony and concluded that the error was harmless. Applying that rule, the Appeals Court held that Khadgi’s testimony about the seven-year relationship established the family or household member element, so any confrontation error was harmless beyond a reasonable doubt.

What the decision means for a person charged with domestic assault in Massachusetts

A complaining witness who does not appear at trial does not always end the Commonwealth’s case. Where a police officer witnessed the assault, or where photographs or other evidence prove the assault independently, a Massachusetts court can find that the admission of the absent witness’s statements did not affect the verdict. The decision also shows the consequence of a defendant’s own testimony. For a charge of assault and battery on a family or household member, the Commonwealth must prove the qualifying relationship, and that relationship is often provable only through the complaining witness. A defendant who confirms the relationship from the witness stand can supply the element the Commonwealth needs, and an appellate court will consider that testimony when it decides whether an error at trial was harmless. The decision whether a defendant should testify is a serious one, and a person facing a domestic assault charge should make that decision with the advice of a lawyer who has weighed what each element of the charge requires.

Key Takeaways

• The Confrontation Clause bars a testimonial out-of-court statement unless the person who made it testifies and is cross-examined. See Crawford v. Washington, 541 U.S. 36 (2004).
• A statement to the police is more likely to be testimonial once the emergency has ended and the statement describes past events.
• Even where a court admits a statement in violation of the confrontation right, an appellate court upholds the conviction if it is satisfied beyond a reasonable doubt that the error did not affect the verdict.
• A court deciding whether an error was harmless considers the defendant’s own testimony along with the rest of the record. See Commonwealth v. Mendes, 463 Mass. 353 (2012).
• In Commonwealth v. Khadgi, the defendant’s testimony that he had dated the complainant for seven years established the family or household member element, so the Appeals Court affirmed the conviction.

Related Serpa Law Office resources

• Arrested for Assault and Battery on a Family or Household Member in Massachusetts
• Boston Domestic Violence Defense Lawyer
• Massachusetts Criminal Law Updates