Opinion
No. 15–P–1507.
12-08-2016
COMMONWEALTH v. Trevor E. JONES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant, Trevor E. Jones, was convicted of assault and battery on a family or household member in violation of G.L. c. 265, § 13M. He appeals.
Background. The judge was warranted in finding that on April 17, 2015, the defendant and the victim, his wife, were at home in Methuen. While using the defendant's cellular telephone (cell phone) to retrieve some information he requested, the victim noticed a text message from a female. The defendant became very angry when the victim mentioned this to him. They went out to dinner together because it was their anniversary. When they returned home, they went to their bedroom. The defendant lay down to sleep while the victim watched television. She noticed that the defendant's cell phone kept making an audible sound indicating that it was receiving text messages. She read one message that stated, "I made money." It was from a female. The victim woke the defendant and asked, "What is this?" The defendant jumped up, yelled at her, and grabbed her by the neck using two hands and applying pressure. In testifying to these events, the victim added, without objection, "You know, usually he always jumps up out of bed when he yells and gets verbally abusive." The victim managed to break away and leave the apartment. She drove to a nearby "dollar store" and telephoned her mother. Meanwhile, the defendant telephoned the victim and asked her to come home. The victim replied that she did not like the text messages she saw on his cell phone: "What does that mean? Explain why are they saying this, ‘I made money, blah, blah, blah, I got another girl for you.’ " The victim telephoned 911. A police officer arrived at the dollar store to assist the victim while other officers went to the defendant's home.
At trial, when asked by the prosecutor if she had been afraid of the defendant that day, she answered in the affirmative and added, without objection, "[W]hen he yells like that, he gets very violent. A couple times, you know, just really had me on the floor, I couldn't breathe. You know, I didn't want to go through that again." There was no motion to strike this testimony. On cross-examination by defense counsel, the victim repeated her earlier testimony that the defendant "always" gets mad and jumps out of bed and that he "always" puts his hands on her neck.
The defendant testified at trial and gave a different account of the events on the night in question. According to the defendant, he and the victim did not argue until after they returned home from dinner. The defendant testified that the victim was upset with him because she wanted more than just a dinner out for their anniversary. The defendant added that when he woke up from a nap after dinner, the victim had left their apartment. He assumed she "might be in the parking lot" because "usually when [they] argue, she goes to the parking lot and she drinks inside the car." He went looking for the victim but could not locate her. Eventually, she returned his cell phone call. She began "cursing" at him: "Mother F'er, get out the house. I'm going to call the cops. I seen the messages from your other girl. Get out of the house." The defendant added that she then hung up on him, he telephoned her back, there was no answer, he telephoned her again, and again there was no answer. The defendant then added this observation:
"She does this all the time. She calls 911 to my-to our address. They've been there numerous occasions and every time they come, when they leave, she smiles, ha ha, and she makes jokes because she knows my past. So she always says, ‘Oh, we're just arguing.’ And that is what it is, we're just arguing, and she does this to me all the time. So what I did—all right."
In response to a question by defense counsel about whether he and the victim had had a "rough relationship in the past," and had "argued at times," the defendant responded, "Yes. Yes." He concluded by testifying that the police came to his apartment, and while they believed his version of the events, they told the defendant they had to arrest him because the victim reported that he had put his hands around her neck.
Discussion. Prior to trial, the defendant filed a motion in limine seeking disclosure of any evidence of prior bad acts and an order preventing the prosecutor or any witness from testifying or alluding to any prior bad acts. At a hearing on the matter prior to trial, defense counsel reported that he had not received any police reports detailing prior incidents between the defendant and the victim. The judge allowed the motion in limine.
On appeal, the defendant argues that the victim's testimony about other incidents between her and the defendant contravened the judge's pretrial order and was highly prejudicial. Because there was no objection, we review this claim only to determine if any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Watkins, 63 Mass.App.Ct. 69, 72–73 (2005). First, we agree with the Commonwealth that the prosecutor's questions, which did not seek testimony as to prior bad acts or bad character, were not objectionable. Where, as in this case, a question is not objectionable, but the witness's answer is in part not responsive and arguably objectionable, the defendant is "obligated to object or move to strike the answer, which was not done." Commonwealth v. Almele, 87 Mass.App.Ct. 218, 224 (2015). Second, in view of the defendant's testimony about the "rough" relationship he had with the victim, there is no reason to believe that the generalized comments by the victim about their relationship added anything of significance. Third, on the merits, the victim's report of prior incidents of abusive behavior by the defendant directed at her qualified for admission for the limited purpose of shedding light on the defendant's motive for committing the crime. See Commonwealth v. Linton, 456 Mass. 534, 551 (2010) ; Commonwealth v. Julien, 59 Mass.App.Ct. 679, 686 (2003) ; Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 54 (2009). The cases cited by the defendant, Commonwealth v. Triplett, 398 Mass. 561 (1986), and Commonwealth v. Salone, 26 Mass.App.Ct. 926 (1988), do not require any discussion because the evidence erroneously admitted in those cases was not admissible as prior bad act evidence. See Mass. G. Evid. § 404(b) (2016).
Even under the more liberal standard announced with only prospective application in Commonwealth v. Grady, 474 Mass. 715 (2016), the defendant was not excused from making an objection at trial because the judge's pretrial ruling did not specify the same precise evidence that was later admitted at trial.
The defendant did not request a limiting instruction.
Conclusion. For the above reasons, the defendant has not demonstrated that there was an error or abuse of discretion.
Judgment affirmed.