Opinion
14-P-152
03-27-2015
COMMONWEALTH v. JOSEPH R. COOPER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
A jury convicted the defendant of assault and battery, G. L. c. 265, § 13A(a). On appeal, he contends that (1) the judge committed prejudicial error by admitting the victim's testimony about an uncharged sexual assault, and (2) the judge's limiting instruction concerning prior bad act evidence created a substantial risk of a miscarriage of justice. We affirm.
The trial judge allowed the defendant's motion for a required finding of not guilty of assault and battery by means of a dangerous weapon.
1. Uncharged sexual assault. The defendant argues the victim's testimony concerning an uncharged alleged rape was inadmissible prior bad act evidence. He contends that even if the testimony was relevant, its probative value was outweighed by its unfair prejudice. Because the defendant objected, we review for prejudicial error.
The victim testified that, on the day before the assault and battery, she got into a heated argument with the defendant, who was her boy friend at the time. She left the apartment with her son. When she returned home later that night, the defendant was there. Another argument ensued, and the victim asked him to move out and remove his belongings by the following day. The victim went to sleep in her bedroom, while the defendant remained in the living room. At some point she awoke and discovered that the defendant had taken her keys and her car. She went back to sleep. When she next awoke, the defendant was in her bedroom, naked; he then "pretty much had sex with me without my consent." The following morning, the victim confronted the defendant and demanded the return of her car keys. At that point, the defendant attacked the victim, punching her and pulling her hair to the point where she lost consciousness. As the defendant left the apartment, he said to the victim, "Bitch, this is what I do."
The defendant's statement could have encompassed the rape as well as the assault and battery.
We discern no abuse of discretion in the admission of the evidence of the uncharged sexual assault. See Commonwealth v. Butler, 445 Mass. 568, 574-575 (2005). "Evidence of a defendant's prior bad acts [is] not admissible to show bad character or propensity to commit the crime for which he has been charged. It may, however, be admitted, if relevant, for some other purpose, such as proving common scheme, pattern of operation, preparation, opportunity, nature of relationship, knowledge, intent, motive, identity, or absence of accident or mistake." Commonwealth v. Cheremond, 461 Mass. 397, 408 (2012).
Here, the evidence was relevant because it provided a more complete picture of the violent nature of the relationship between the defendant and the victim. See Commonwealth v. Howard, 469 Mass. 721, 739 (2014); Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003). Without such evidence, the assault and battery could have appeared "an inexplicable act of violence." See Commonwealth v. Robertson, 408 Mass. 747, 750-751 (1990), quoting from Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1982). Instead, the events of the night before (beginning with the defendant's unwelcome presence at the victim's apartment, his taking her car and keys, and the sexual assault) put the crime of which he was convicted in context. Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007), quoting from Commonwealth v. Marrero, 427 Mass. 65, 67 (1998) ("[T]he prosecution [is] entitled to present as full a picture as possible of the events surrounding the incident itself' . . ."). The sexual assault was "inextricably intertwined" with the events leading up to the crime. See Commonwealth v. Bradshaw, supra at 269-270 (judge did not abuse discretion by permitting evidence of defendant's escalating violence in "desperate search for money" before killing victim, who had indirectly demanded money from defendant).
The defendant argues that even if the testimony was relevant, its relevance was outweighed by the risk of unfair prejudice because the case turned on nothing more than credibility. We disagree; the evidence of the assault and battery was not limited to the victim's testimony. Rather, it was confirmed by photographs showing swelling and red scratches on the victim's face consistent with the injuries she described. Moreover, as discussed further below, the jury were carefully instructed on the limited purpose for which they could use the testimony, which further alleviated any risk of unfair prejudice. See Commonwealth v. Butler, supra at 576 (footnote omitted).
We have obtained the original exhibits from the trial court and reviewed them independently.
2. Jury instructions. The defendant argues that the judge's limiting instruction on the use of prior bad act evidence erroneously failed to conform to the model instructions. Because the defendant did not object, we review for a substantial risk of a miscarriage of justice.
Immediately after the victim's testimony about the alleged rape, the judge instructed the jury as follows:
"Members of the jury, I just have to instruct you on, ah, an important, um, component of the law here. Um, the Defendant is, um, not charged with any crime, other than the charges that are contained in the complaint. Okay?
"You may have heard mention of other acts allegedly done by the Defendant. You may not take that as a substitute for proof that the Defendant committed the crimes charged, nor may you consider it as proof that the Defendant has a criminal personality or bad character. But, you may consider it solely on the limited use of the nature of the relationship between the Defendant and [the victim].
"You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that if the Defendant committed the other acts, he must have also committed what he's charged with."
"Generally, we do not require trial judges 'to deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words.'" Commonwealth v. Marrero, 427 Mass. 65, 72 (1998), quoting from Commonwealth v. Sarmanian, 426 Mass. 405, 408 (1998). Here, the judge's instruction substantially tracked the language of the model instruction. The instruction "explicitly limit[ed] the jurors' use of the [bad acts] evidence" and provided sufficient guidance on how to use the evidence properly. Commonwealth v. Marrero, supra at 72 n.5 & 73. See Commonwealth v. Butler, supra at 576 n.9. The instruction was not erroneous. Moreover, the judge's instruction during the final charge tracked the model instructions exactly.
"The defendant is not charged with committing any crime other than the charge(s) contained in the complaint. You have heard mention of other acts allegedly done by the defendant. You may not take that as a substitute for proof that the defendant committed the crime(s) charged. Nor may you consider it as proof that the defendant has a criminal personality or bad character. But you may consider it solely on the limited issue of __________ [e.g. whether the defendant acted intentionally and not out of accident or other innocent reason].
"You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that if the defendant committed the other act(s), he (she) must also have committed (this charge) (these charges)." Instruction 3.760,Criminal Model Jury Instructions for Use in the District Court (2009).
Judgment affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 27, 2015.