Opinion
19-P-1292
10-13-2020
COMMONWEALTH v. MARVIN E. CARR.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Marvin Carr, was convicted of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M (a). On appeal, the defendant argues that the judge erred in admitting prejudicial bad act evidence and in failing to give a specific unanimity instruction to the jury. We affirm.
Background. The jury could have found the following facts. At the time of trial, the defendant and Lyadira Figueroa had been married for four years. On April 1, 2017, Figueroa worked the 3 P.M. to 11:30 P.M. shift at Arbour Hospital in the Jamaica Plain section of Boston. While Figueroa was working, the defendant borrowed her vehicle. At the end of her shift, at approximately 12:15 P.M., the defendant picked Figueroa up from work to drive her back to their home in Worcester. Upon the defendant's arrival, Figueroa noticed that the defendant had been drinking and she decided to drive the vehicle home. While Figueroa was driving, she realized that the gas tank was running low, and the two began to argue about gas money. On the drive to the gas station, the defendant reached for Figueroa's coat and scratched her face and neck.
When they arrived at the gas station, the defendant got out of the vehicle to pay, while Figueroa pumped the gas. Because they were fighting, Figueroa asked the defendant to stay in Boston for the evening but he declined to do so. When both the defendant and Figueroa returned to the vehicle and continued their drive home, they began to argue about a trip to Foxwoods that Figueroa had taken the previous night. The defendant accused Figueroa of cheating on him, and eventually struck her in her right eye while she was driving. Figueroa pulled the vehicle over to the right side of the road, exited the vehicle, and called 911 for assistance. The police arrived and arrested the defendant.
Discussion. 1. Evidence of prior bad acts. The defendant contends that he was prejudiced by the admission of prior bad act evidence. Because the defendant successfully moved to have such evidence excluded prior to trial, and made a timely objection at trial, we review for prejudicial error. See Commonwealth v. Barbosa, 477 Mass. 658, 673 (2017); Commonwealth v. Roe, 90 Mass. App. Ct. 801, 806 (2016).
The defendant claims it was error to admit Figueroa's statement on direct examination that "I wasn't feeling safe going home with him. You know, it was late night, and I just -- I just knew, you know, just from previous --." An immediate objection by defense counsel cut off Figueroa's testimony, and the objection was sustained. Nevertheless, the defendant primarily argues that the admission of the word "previous" was improper bad act evidence.
"Generally, evidence of a defendant's prior misconduct may not be admitted to show bad character or propensity to commit the crime charged." Commonwealth v. Montez, 450 Mass. 736, 744 (2008). The defendant argues that the only logical conclusion the jury could have drawn from the word "previous" was prior abuse by the defendant. We are not convinced. Figueroa's statement was made while discussing the entirety of the evening, including their prior arguments. The statement was promptly objected to before any bad acts were mentioned by Figueroa and the objection was sustained. We discern no error that prejudiced the defendant. Where a statement referencing a prior bad act is fleeting and vague, it is unlikely to apprise the jury of the defendant's act, or even seize the attention of the jury at all. See Commonwealth v. Cunneen, 389 Mass. 216, 223-224 (1983); Commonwealth v. Baptista, 86 Mass. App. Ct. 28, 32 (2014). Accordingly, we can say "with fair assurance" that Figueroa's statement did not influence the jury or had but very slight effect. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Because the witness had not yet testified to any prior bad act, the judge was not required to, sua sponte, strike her testimony. Cf. Roe, 90 Mass. App. Ct. at 805-806 (failure to strike prejudicial testimony and no prompt curative instruction given unfairly prejudiced defendant).
The defendant also argues that because the witness later testified to past abuse by the defendant, the jurors were alerted that the word "previous" referred to prior abuse. However, when the witness testified about past abuse, the defendant's prompt objection was sustained, the judge struck the answer, and immediately instructed the jurors to disregard the testimony. "By striking the testimony and instructing the jury to disregard it, the judge did all that was necessary to cure any possible error from the admission of the statements." Commonwealth v. Hoffer, 375 Mass. 369, 372-373 (1978).
2. Jury instruction. The defendant next contends, for the first time on appeal, that he was entitled to a specific unanimity instruction. Because the defendant did not request such an instruction, and did not object to the jury instructions as given, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005).
A specific unanimity instruction is required where "there are separate events or episodes and the jurors could otherwise disagree concerning which act a defendant committed and yet convict him of the crime charged." Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 904 (1995). However, "[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required." Id. at 905.
Here, the defendant's acts were separated by a short period of time and both occurred within Figueroa's vehicle during the course of an argument. See id. Additionally, the defendant's defense was not based on the particulars of each instance described by Figueroa. Instead, he argued that the events did not occur at all. We see no risk of lack of unanimity. See Commonwealth v. Sanchez, 423 Mass. 591, 600 (1996). A specific unanimity instruction was not required here, but in any event, the lack of such an instruction did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Shea, 467 Mass. 788, 798 (2014).
Judgment affirmed.
By the Court (Desmond, Ditkoff & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 13, 2020.