Opinion
15-P-1038
02-17-2017
COMMONWEALTH v. Donald MCMULLIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this criminal case alleging a single violation of a G.L.c. 209A abuse prevention order (209A order) in 2010, the jury heard evidence of an alleged violation of that order in 2008 for which the defendant had already been tried and acquitted: so-called "acquittal evidence," which the Supreme Judicial Court has subsequently ruled is inadmissible. See Commonwealth v. Dorazio , 472 Mass. 535, 547-548 (2015). The jury also heard evidence of more than fifteen other prior bad acts. We conclude that the prejudice resulting from the acquittal evidence, together with the undue prejudice caused by the admission of extensive additional prior bad acts evidence without contemporaneous limiting instructions, created a substantial risk of a miscarriage of justice warranting a new trial.
Background . 1. The Commonwealth's case . The defendant was charged with a violation of a 209A order occurring on September 7, 2010. The victim (the defendant's ex-wife) began by testifying that in 2005, while they were still married, she obtained a 209A order prohibiting him from abusing or contacting her and requiring him to stay away from her home, her workplace, and her mother's home (all located in Needham), and fifty yards from her person. The order was extended annually thereafter and was made permanent in 2009. In June, 2010, the order was modified to require the defendant to stay away from the victim's new home on Central Avenue in Needham and 100 yards from her person. The order was in effect on September 7, 2010.
The victim next testified to a series of prior bad acts. She stated that on approximately December 1, 2007, while driving away from her boy friend's house at 1 A.M. , she saw the defendant walking alongside the street, stopped her car, and commenced what turned into an extended conversation. She testified that during the conversation, the defendant said, "[A] restraining order is just a piece of paper, and if ... someone wants to get you they will."
The defendant testified that the December 1 encounter occurred on a side street closer to his mother's house, on a route he commonly took during nightly walks. He further testified that the victim "insisted she wanted to talk ... about the divorce [and] division of assets" and "threatened" that "if [he] didn't give her everything she wanted [he] would never see [his] children again." He claimed that the victim had "made up" her testimony concerning his alleged statement that "a restraining order is just a piece of paper."
The victim then testified about a series of alleged encounters occurring after the December 1 incident, in late 2007 and early 2008. On ten or twelve occasions, the defendant had driven by either her boy friend's house or her mother's house, where she lived at the time and which was located on a cul-de-sac or circular street (hereinafter, "cul-de-sac"), off of any main routes. The victim testified that this typically occurred at approximately 3:30 P.M. as she arrived home from work, that the defendant typically drove by "very fast," that she usually did not call the police because she did not see the point, and that she could not remember the specific dates of any of these occurrences.
The defendant testified that he had never driven by either her boy friend's house or her mother's house while the restraining order was in effect.
She then testified to the acquittal evidence, concerning an incident that occurred on the evening of November 26, 2008. The victim testified that as she arrived at her mother's house, the defendant drove by the house very slowly and then proceeded to "zoom off." She got in her car, drove after him, and called the police in an effort to have him caught. Eventually he was stopped near the center of Needham.
The defendant testified that he had not driven by the victim's mother's house on the evening of November 26, 2008, but had been followed by another car while driving on other roads. After being stopped by police near the center of Needham, and tried for violating the 209A order on that occasion, he had been "found not guilty." "We had our cell phone records. We could prove she was four towns away when I supposedly saw her.... I absolutely ... was not there, and I was ... found not guilty." The Commonwealth's brief on appeal acknowledges that the defendant was charged in connection with this incident and was acquitted at trial.
Additionally, the victim testified to a series of "maybe four" encounters, prior to the charged incident, in which she had seen the defendant on a side street near her home (Cynthia Road), "[s]itting over there and then he'll take off real quickly," so she had not called the police on those occasions. To her knowledge, the defendant did not know anyone living on Cynthia Road, nor were any businesses located there.
All of the above testimony regarding the previous encounters—two on specific dates, and two series of incidents totaling fourteen to sixteen encounters—was admitted without any pertinent objection by the defendant, and without any limiting instruction from the judge. Most of the evidence had been the subject of motions in limine, which we discuss infra .
The defendant's objections based on hearsay and other grounds unrelated to the issue on appeal need not detain us. The defendant is represented by new counsel on appeal.
Finally, the victim testified to the events underlying the charge the defendant faced at trial. She stated that on September 7, 2010, shortly after 3:30 P.M. , she returned from work and went to a store next door to her home on Central Avenue, where her boy friend worked. Not finding him there, she began to walk toward her boy friend's home, which was also located on Central Avenue next to the store and directly opposite where Cynthia Road intersected Central Avenue. As she walked, she looked across Central Avenue and saw a red Mustang automobile parked down Cynthia Road, thirty to fifty feet from the intersection. She recognized the Mustang as one she had previously seen the defendant driving.
The victim testified that on this occasion, as she kept walking, the Mustang pulled forward on Cynthia Road, almost but not all the way to the intersection with Central Avenue, and stopped. There was no traffic on that part of Central Avenue at the time. The driver's window was down and she saw the defendant in the car, staring at her. He seemed to stare for a long time, perhaps twenty to thirty seconds. "It was enough time for me to freeze." She described him as looking at her with "intense-looking, stare-me-down, daggery eyes" that made her afraid and unsure of what he was going to do. As the defendant stared from his car about thirty-five feet away, she ran back toward her house. The defendant then turned his car onto Central Avenue and drove off in the opposite direction, while she called the police.
The Commonwealth's only other witness was a Needham police sergeant, who testified that on September 7, 2010, in response to a call, he went to the scene of the incident and spoke to the victim. She was "upset and shaking ... very sad, her voice was trembling." He did not see the defendant at the scene or go to his house to speak to him. The officer also testified that the traffic on Central Avenue at that time on a weekday was typically light and that he had no contrary memory of the traffic on the day in question. The only conduct for which the defendant was criminally charged in this case took place that day.
2. The defendant's case . The defense theory was that the contact on September 7, 2010, was accidental or incidental and that the defendant took reasonable steps to end it. The defendant testified that he was living at his mother's Ardmore Road home and left the home that afternoon to drive to a store in the center of Needham. Ordinarily he would have driven south down Central Avenue to get there, but now that the victim lived on Central Avenue, in order to "avoid her house, avoid seeing her," he took a detour onto Cynthia Road, which turned off of Central Avenue north of the victim's home and rejoined it further south. He had previously "Googled" her address and Cynthia Road to make sure his route would keep him at least 100 yards away from her home, and he had found that the distance was 528 feet.
As he returned from the store along the reverse route, he stopped at the end of Cynthia Road, trying to get onto Central Avenue, which he testified was "a very busy street" with "almost stop and go" traffic at that time. As he awaited an opportunity to turn, he saw the victim across Central Avenue, walking or running straight toward him. When she stepped out onto Central Avenue, the traffic stopped, which allowed him to turn right onto Central Avenue; he did so "as quick as [he] could" and went home.
The defendant further testified that he did not try to get the victim's attention and that he was shocked to see her coming straight toward him. The red Mustang that he was driving was one that he had restored himself and only recently registered, so that this was the second day he had ever driven that car, the first time having been at night.
3. Motion in limine . Prior to trial the Commonwealth filed a motion in limine seeking a ruling that certain prior bad acts evidence would be admissible at trial. The defendant filed his own motion in limine seeking to exclude such evidence. The motion judge, who also presided at trial, allowed the Commonwealth's motion (and denied the defendant's motion) as to the incident occurring on December 1, 2007, and the series of incidents in 2007 and 2008, described in the Commonwealth's motion in limine as follows:
"Several other instances occurred in 2007 and 2008, in which the victim observed the Defendant as she was either entering or exiting from her boyfriend's home on Central Avenue in Needham. The victim observed the Defendant either drive slowly along the street glaring at her, or would park across the street from the home."
The judge denied the Commonwealth's motion, and allowed the defendant's, as to an incident that preceded issuance of the 209A order. The Commonwealth's motion in limine did not address the series of "maybe four" prior encounters on Cynthia Road testified to by the victim at trial.
Defense counsel objected at the hearing on the motion in limine that this was "not specific enough." She argued:
"I can't look into these incidences and determine whether there's alibi issues, whether he was actually in town at those times. Without being given any specific information about several instances, not even a certain number of them, that occurred over two years, there's really not a lot I can do on cross-examination with that witness. She can say it happened whenever, and there's not a lot I can do to rebut that without having some specifics of ... when they happened."
The judge also allowed the Commonwealth's motion as to the incident occurring on November 26, 2008, despite defense counsel's objection that the defendant had previously been criminally charged in connection with that incident and found not guilty. The judge did not have the benefit of the subsequent ruling in Dorazio , 472 Mass. at 547, that evidence of prior bad acts for which a defendant was tried and acquitted is inadmissible.
See note 3, supra . The defendant did not frame the objection as constitutionally-based and thus waived the objection by failing to renew it at trial. See note 9, infra .
Discussion . 1. Admission of "acquittal evidence ." The use against the defendant of the incident of November 26, 2008, for which he had previously been found not guilty, was (although the judge could not have known it at the time), error in light of Dorazio . There, the Supreme Judicial Court held that "the collateral estoppel protections necessarily embraced by art. 12 [of the Declaration of Rights] warrant the exclusion of ... acquittal evidence," i.e., evidence of prior bad acts for which a defendant was tried and acquitted. 472 Mass. at 547.
We do not agree with the Commonwealth that Dorazio , in stating that exclusion of acquittal evidence was required "in the circumstances of th[at] case," id . at 547, was confined to those circumstances. The court used more general terms, stating, "Our holding is limited to prior bad act evidence for which a defendant was acquitted" (emphasis added). Id . at 547 n.13.
Here, the defendant is entitled to the benefit of Dorazio , but because, as in Dorazio , the defendant here did not preserve the issue, we examine whether admission of the evidence created a substantial risk of a miscarriage of justice. Id . at 548. Because a combination of errors may create such a risk even where no single error is sufficiently prejudicial to require reversal, see Commonwealth v. Cancel , 394 Mass. 567, 576 (1985), we review the defendant's other unpreserved claims of error before analyzing the overall impact of the errors that occurred.
A defendant who seeks the benefit of a new constitutional rule on direct review, but who did not preserve the issue at trial, is considered to have waived the issue and is entitled to review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Bowler , 407 Mass. 304, 307-308 (1990) ; Commonwealth v. Matsos , 421 Mass. 391, 397-398 (1995). The defendant here concedes that this is the standard of review we should apply; he makes no argument that the "clairvoyance" exception to the waiver rule should apply. See, e.g., Bowler , 407 Mass. at 307. We need not decide whether Dorazio announced a "new rule," because, if it did not, the defendant here would still be entitled only to review for a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. AdonSoto , 475 Mass. 497, 504 (2016). Compare Commonwealth v. Ennis , 398 Mass. 170, 173-175 (1986).
2. Other prior bad acts evidence . The defendant argues that the judge abused his discretion in admitting the other prior bad acts evidence because "its probative value [was] outweighed by the risk of unfair prejudice to the defendant," Commonwealth v. Crayton , 470 Mass. 228, 249 (2014), and that the judge failed to give adequate limiting instructions. Evidence of prior bad acts may not be introduced to prove the defendant's "bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose ... such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant , 398 Mass. 214, 224 (1986) (citations omitted). Even if relevant for one of these permissible purposes, such evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant. See Crayton , 470 Mass. at 249. "It is implicit in the general rule regarding the inadmissibility of prior bad acts evidence that the admission of such evidence carries with it a high risk of prejudice to the defendant." Commonwealth v. Anestal , 463 Mass. 655, 672 (2012), quoting from Commonwealth v. Barrett , 418 Mass. 788, 795 (1994). The potential prejudice is of several types:
"Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defen[s]e, raises a variety of issues, and thus diverts the attention of the jury from the [crime] immediately before it; and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him."
Anestal , 463 Mass. at 665, quoting from Commonwealth v. Jackson , 132 Mass. 16, 20-21 (1882).
Thus, "even if relevant, a judge must guard against the risk that evidence of prior bad acts will divert the jury's attention from the charged acts." Commonwealth v. Dwyer , 448 Mass. 122, 129 (2006). Bad acts testimony may create a "need to instruct the jury with particular care what to do in order to avoid diversionary misuse of the material." Commonwealth v. Mills , 47 Mass. App. Ct. 500, 506 (1999). Indeed, especially where "[t]he question whether the evidence was more prejudicial than probative is close," the provision of adequate contemporaneous and final limiting instructions may tip the balance in favor of admissibility. See Commonwealth v. Gomes , 475 Mass. 775, 785 (2016).
The determination whether to admit such evidence is "committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error.' " Commonwealth v. McCowen , 458 Mass. 461, 478 (2010), quoting from Commonwealth v. Fordham , 417 Mass. 10, 23 (1994). The question is not whether we would have made a different decision; "[i]nstead, we will uphold the judge's decision unless 'we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.' " Commonwealth v. Robertson , 88 Mass. App. Ct. 52, 54 (2015) (prior bad acts case), quoting from L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014).
Here, although the defendant had filed a motion in limine to exclude the prior bad acts evidence as unduly prejudicial, he did not renew that objection at trial, nor did he object to the testimony about the 2007-2008 series of incidents that went beyond what had been allowed by the ruling in the motion in limine, and thus he has not preserved those issues. Nor did defense counsel request limiting instructions when the evidence was introduced; counsel did request, and pronounced herself satisfied with, an instruction on propensity evidence in the judge's final charge. Therefore, we review for whether any error or abuse of discretion in admitting and instructing on the evidence created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph , 438 Mass. 290, 294-295 (2002).
At the time of the trial in this case, a nonconstitutionally-based evidentiary argument made in connection with a motion in limine was required to be renewed by an objection at trial in order to preserve the issue for appeal. See Commonwealth v. Whelton , 428 Mass. 24, 25-26 (1998), overruled prospectively by Commonwealth v. Grady , 474 Mass. 715, 718-719 (2016). See also Commonwealth v. Lacoy , 90 Mass. App. Ct. 427, 441 n.21 (2016). Even under Grady , "Where what is being addressed and resolved at the motion in limine stage differs from what occurs at trial, the defendant still must object at trial to preserve his or her appellate rights." Grady , 474 Mass. at 720.
a. Probative value . The probative value of the prior bad acts evidence (other than the acquittal evidence) was such that, had it been limited to the evidence in the motion in limine allowed by the judge at the pretrial hearing (but see part 2.b., infra ), and had it been admitted with timely limiting instructions to prevent unfair prejudice, we would reject the defendant's claim of an abuse of discretion. If the victim's version of those earlier events were believed, the evidence was relevant for proper purposes in showing the defendant's guilt of the alleged September, 2010, violation. All of the prior incidents involved the defendant going out of his way to be in close proximity to where the victim was likely to be, thus tending to show an absence of accident or mistake and an intent to violate the 209A order in the September, 2010, encounter. The 2007-2008 series of events tended to show that he meant to make his proximity known to her, and further showed his intent to violate the order. The December 1, 2007, incident, in which the defendant told the victim that "a restraining order is just a piece of paper, and if ... someone wants to get you they will," tended to show his intent to disregard the 209A order. That comment was also relevant to the victim's state of mind, in that it could easily be understood as a veiled threat, making it more likely that when, during the September, 2010, encounter (unlike on previous occasions), the defendant stopped and stared intently at the victim, he placed her in fear of imminent serious physical harm, so as to constitute "abuse" as defined in G.L.c. 209A, § 1, as appearing in St. 1990, c. 403, § 2.
"Before prior bad act evidence can be admitted against a defendant, the Commonwealth must satisfy the judge that 'the jury [could] reasonably conclude that the act occurred and that the defendant was the actor.' " Commonwealth v. Leonard , 428 Mass. 782, 785 (1999), quoting from Huddleston v. United States , 485 U.S. 681, 689 (1988). See Commonwealth v. Rosenthal , 432 Mass. 124, 126-127 & n.4 (2000) ; Mass. G. Evid. § 104(b) (2016). "The Commonwealth need only show these facts by a preponderance of the evidence." Leonard , 428 Mass. at 785. See Rosenthal , 432 Mass. at 126-127 & n.4. Here, the judge's decision to admit the evidence implicitly imports a finding that it met these standards, and the defendant does not contend otherwise.
As to the December 1, 2007, incident, although the victim stopped her car to initiate the conversation with the defendant, she testified that she did so only after seeing him at 1 a.m. along the side of the road near her boy friend's house, the general location of which the defendant acknowledged knowing.
Nor were these prior incidents so remote in time as to make them inadmissible. "There is no bright-line test for determining temporal remoteness of evidence of prior misconduct. Where the prior misconduct is merely one instance in a continuing course of related events, the allowable time period is greater." Helfant , 398 Mass. at 228 n.13.
b. Risk of unfair prejudice . The victim's trial testimony, however, was substantially different from, and more voluminous and damaging than, the evidence described in the motion in limine, and we necessarily analyze unfair prejudice in light of what occurred at trial. The principal change was in the victim's description of the series of drive-bys in 2007 and 2008. First, the number of instances increased, from "several" to "ten [or] 12 times." Second, the site of the violations changed. The motion in limine said they had occurred only at her boy friend's house, which was on a main road within half a mile of where the defendant lived, was not listed on the 209A order, and the exact location of which the defendant denied knowing. But at trial, the location of the alleged prior bad acts expanded to encompass, as well, her mother's house, which was on a cul-de-sac off of any main routes, admittedly known to the defendant, and which the 209A order expressly placed off limits to him. The potential effect of this change on the defense theory of accidental or incidental contact is plain. Third, the description of the defendant's conduct changed, from either driving slowly along the street glaring at her or parking across the street, to "go[ing] by very fast and tak [ing] off fast," thus explaining, the victim testified, why she had not called the police. And fourth, the times of the incidents changed, from occurring when the victim was "either entering or exiting from her boyfriend's home," to all occurring at approximately 3:30 P.M. —the time at which, she testified, the defendant knew since the time of their marriage, she usually returned from work.
Our analysis also focuses, infra , on the lack of contemporaneous limiting instructions and the adequacy of the final instruction on prior bad acts.
We do not question or express a view about the victim's veracity. The discrepancies between the description in the motion in limine and her ultimate testimony could have arisen from any number of sources. But the nature and extent of the discrepancies made the trial testimony more damaging, more difficult to counter, or both, compared to what had been described in the motion. See Jackson , 132 Mass. at 20 (prior bad acts evidence objectionable in part because it "compels the defendant to meet charges of which the [charging document] gives him no information"); Anestal , 463 Mass. at 665.
The victim's trial testimony also described the other series of "maybe four" incidents, not mentioned in the motion in limine, in which she had observed him on Cynthia Road, "[s]itting over there and then he'[d] take off real quickly," so that she had not called the police on those occasions either. Although she testified that these incidents had occurred "[a] handful, maybe four, four times or so," the prosecutor, in questioning her further, referred to them as occurring "at least four or five times before." The defendant had no notice that he would be faced with these ever-proliferating allegations. Prior bad acts evidence is "inherently prejudicial," Crayton , 470 Mass. at 249 n.27, quoting from Commonwealth v. Johnson , 35 Mass. App. Ct. 211, 218 (1993), S .C ., 43 Mass. App. Ct. 509 (1997), and "[i]t has long been recognized that bad acts, even when nominally offered to show ... some ... legitimate object, become dangerously confusing to the triers when piled on and unduly exaggerated." Mills , 47 Mass. App. Ct. at 505. This case illustrates that danger.
While it is conceivable that these instances were what the prosecution's motion in limine referred to as the "[s]everal other instances occurr[ing] in 2007 and 2008," the manner in which these instances arose in the victim's testimony suggests otherwise. The prosecutor never asked her about them in the course of systematically eliciting the chronology of the defendant's prior bad acts; rather, she volunteered them in relation to her description of the charged incident.
Further risk of "dangerous[ ] confusi[on]" ensued, ibid ., when the victim was unable to testify to the specific dates of any of the ten to twelve December, 2007, and early 2008 occurrences following the December 1, 2007, incident. When cross-examined about her testimony that she had not called the police about those incidents, the victim testified that she had in fact called the police about one of them, leading to a mutually-puzzling exchange with defense counsel about which incidents they were discussing, and causing the judge to instruct defense counsel, "It has to be specific. It's confusing. What incident are you talking about?" The victim then indicated that she was actually referring to a separate incident (apparently the November 26, 2008, incident for which the defendant was tried and acquitted), but, judging from the transcript, the question of what incident(s) she was referring to likely remained unclear to the jury.
In the end—given the lack of dates, together with the victim's explanation for not having called the police—the defendant did not and perhaps could not respond to the victim's testimony about the series of late 2007 to early 2008 incidents, except by declaring that he had never driven by either her boy friend's house or her mother's house at any time when the restraining order was in effect.
Moreover, the sheer amount of prior bad acts evidence introduced by the prosecution, and necessarily responded to by the defense, was very substantial in comparison to the evidence directly concerning the charged incident. As the judge recognized after ruling on the motions in limine, "I've allowed in the three prior bad acts, which are extensive. I mean it's going to take a lot of testimony." And this did not take into account the second series of "maybe four" incidents in which the victim had observed the defendant sitting on Cynthia Road and then "tak[ing] off real quickly."
The prior bad acts testimony and related closing arguments consumed nearly as much time as did the testimony and arguments about the September, 2010, encounter. This risked overwhelming the evidence regarding the charged act and distracting the jurors from the question whether the defendant committed it. Although it was incumbent upon the defendant to object when the Commonwealth went beyond what was allowed in the motion in limine, our cases also suggest that even without an objection, there are occasions when "[t]he judge should ... intervene[ ] to prevent" these dangers. Dwyer , 448 Mass. at 129. See ibid ., quoting from Commonwealth v. Roche , 44 Mass. App. Ct. 372, 380 (1998) (recognizing dangers of distracting jury and "overwhelming a case with ... bad act evidence"). "At times during the course of any trial ... it may become necessary for a judge to intervene although there has been no objection to the admissibility of certain evidence." Commonwealth v. Sapoznik , 28 Mass. App. Ct. 236, 241 n.4 (1990) (to prevent improper use of prior bad acts testimony, "the judge should have interjected himself into the trial, even in the absence of an objection from the defendant").
Compare Commonwealth v. Holley , 476 Mass. 114, 123-124 (2016) (prior bad acts evidence did not "overwhelm[ ]" case, given ample forensic, consciousness-of-guilt, and other evidence that defendant was perpetrator).
The prosecution's closing argument made prior bad acts a centerpiece of the case, telling the jury no fewer than six times that they were looking at "the same defendant" who had approached the victim on multiple prior occasions. The prosecutor recounted the incidents of December 1, 2007, late 2007 to early 2008, and November 26, 2008, as well as the undated incidents on Cynthia Road. And he again took liberties with the number of incidents, twice telling the jury that in 2007-2008 the defendant had driven by the boy friend's or mother's home on "10, 12, 14 separate occasions" (when the victim had testified to "ten [or] 12 times"), and that the defendant had previously parked on Cynthia Road "at least on four to five separate occasions" (when the victim had testified to "[a] handful, maybe four" occasions). The incidents that the victim had testified occurred "later in 2007 and earlier in 2008" occurred, according to the prosecutor's closing, "throughout 2007 and into 2008." The closing thus "piled on and unduly exaggerated," increasing the likelihood that the bad acts evidence would be "dangerously confusing to the triers" of fact. Mills , 47 Mass. App. Ct. at 505.
c. Limiting instructions . Further heightening the risk of unfair prejudice, the judge gave no contemporaneous limiting instructions informing the jury of the purposes for which the prior bad acts evidence could, and could not, be considered. Compare Gomes , 475 Mass. at 785 (considering contemporaneous limiting instructions, repeated in final charge, in determining that probative value of bad acts evidence outweighed its prejudicial effect).
We recognize that the defendant failed to request such instructions, and "the law does not require a judge to give limiting jury instructions ... unless so requested by the defendant." Commonwealth v. Leonardi , 413 Mass. 757, 764 (1992) (prior bad acts instruction). See Commonwealth v. Roberts , 433 Mass. 45, 48 (2000) (same). "But even if relevant, a judge must guard against the risk that evidence of prior bad acts will divert the jury's attention from the charged acts." Dwyer , 448 Mass. at 129. See Commonwealth v. Gollman , 51 Mass. App. Ct. 839, 845 (2001) (stating in dictum that "all cases where prior bad acts are offered invite consideration of ... the importance ... of delivering careful limiting instructions"), S .C ., 436 Mass. 111 (2002) (affirming conviction).
Especially where, as here, the determination whether undue prejudice outweighs probative value is a close question, there is a "need to instruct the jury with particular care what to do in order to avoid diversionary misuse of the material." Mills , 47 Mass. App. Ct. at 506. See Gomes , 475 Mass. at 785 (where balance between prejudice and probative value was "close," limiting instructions persuaded court that bad acts evidence was properly admitted). And it is "preferable that the limiting instruction be given the same day as the testimony at issue." Commonwealth v. Linton , 456 Mass. 534, 551 n.12 (2010). See Criminal Model Jury Instructions for Use in the District Court 3.760 (2009) (instruction should be given "at the time the evidence is admitted"). Even contemporaneous limiting instructions have sometimes been held insufficient to prevent undue prejudice from prior bad acts testimony. See Dwyer , 448 Mass. at 128-129 & n.8. Here, there were no contemporaneous limiting instructions at all.
We recognize that the judge's final charge was delivered the next morning, and that it did include, at the defendant's request, an instruction on how to consider the prior bad acts evidence. But that instruction, in the context of the entire charge, was insufficient to avert the risk of undue prejudice. First, it was immediately preceded by a broadly worded instruction that, while unremarkable if understood as confined to the issue of accidental or incidental contact, nevertheless invited the jury, in deciding whether there was "any contact which violated the abuse prevention order," to consider "all of the evidence in this case" regarding "any contact" between the parties, including "the number of contacts over time" (emphasis added). This unfortunate juxtaposition undercut the force of the limiting instruction on prior bad acts that followed.
The judge's full instruction, patterned on Criminal Model Jury Instructions for Use in the District Court 6.720 (rev. 2011), was as follows:
"[T]he Commonwealth must prove that the defendant's contact was not a good faith attempt by the defendant to do that which was permitted.
"Now, in deciding this, whether there was any contact which violated the abuse prevention order, you may consider any evidence relevant to the nature and purpose of any contact, the number of contacts over time, the length of any contact, and the substance and character of any statements made during any of that contact.
"You should consider all of the evidence in this case to decide whether any contact was made in good faith for a legitimate reason or whether that reason was merely a pretext or excuse for contacting the protected party."
That limiting instruction itself risked confusing the jury, by instructing that they could consider the evidence on the issue of "motive for testifying"—which was not in dispute here—and "those sorts of things"—a phrase that left the jury free to speculate about what other uses of the evidence, not mentioned, were nonetheless permissible. Overall, even if such an instruction standing alone might not constitute error, compare Commonwealth v. Marrero , 427 Mass. 65, 72-73 & n.5 (1998), it heightened the risk that unfair prejudice would outweigh probative value.
The judge instructed:
"The alleged conduct which is the subject of this complaint is that contact in September of 2010. I guess September 7.
"Now, there's a lot of other contact alleged, activity alleged, and that activity prior to that date, September 7th of 2010, you may not use any of that contact. And obviously it's your decision how much of that you find as a matter of fact. But you may not use that contact, that prior contact, that prior activity, you may not use that as a propensity or use it to show a propensity by the defendant to commit the crime charged here.
"But you may use it for other reasons having to do with, particularly in this case, having to do with the two issues I talked about just prior to talking about this, and that is whether it was inadvertent or accidental contact, motive for testifying, motive for that contact, those sorts of things. But again you may not use it to show a propensity for the defendant to commit the crime charged here."
The model instruction, in contrast, reads as follows:
"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)."
Criminal Model Jury Instructions for Use in the District Court 3.760 (2009).
The instruction also gave only passing attention to whether the jury, before considering what effect to give the prior bad acts, should determine the hotly contested issue whether those acts had occurred at all in the manner alleged. Compare Helfant , 398 Mass. at 226 & n.9 (judge instructed jury not to consider prior bad acts testimony unless they believed it). In fairness to the judge, such language is not part of the model prior bad acts instruction, see note 19, supra , but it would have been especially helpful here, where there was so much contested prior bad acts evidence, and the potential for it to "overwhelm" the evidence of the charged act was so great. Compare Dwyer , 448 Mass. at 128-129 (bad acts evidence "overwhelmed" evidence of charged conduct); Roche , 44 Mass. App. Ct. at 380 ("Even if the evidence is relevant, a judge must guard against the danger of overwhelming a case with such bad act evidence").
Accordingly, we are constrained to conclude that admission of the additional prior bad acts evidence beyond that described in the motion in limine and approved by the judge at the pretrial hearing, which resulted in a large body of such evidence being presented to the jury without any contemporaneous limiting instructions and without a more effective final instruction, was, despite the lack of objections, an abuse of discretion. See Crayton , 470 Mass. at 252 ("[I]t was an abuse of discretion to admit the 'bad act,' even with a limiting instruction," where instruction was insufficient).
We do not suggest that there was only one "reasonable alternative[ ]" here. See L.L ., 470 Mass. at 185 n.27. The judge might have excluded the evidence altogether, substantially limited its volume, or excluded evidence (such as the series of alleged 2007-2008 encounters) that was so indefinite as to be especially prejudicial. The judge could also have given contemporaneous and final limiting instructions providing more guidance to the jury.
d. Substantial risk of miscarriage of justice . Because the defendant failed to preserve the issue, we examine whether the admission of the prior bad acts evidence without adequate limiting instructions created a substantial risk of a miscarriage of justice. See Randolph , 438 Mass. at 294-295. That question turns on whether we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave , 430 Mass. 169, 174 (1999). "In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error, and whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision." Commonwealth v. Alphas , 430 Mass. 8, 13 (1999) (quotations omitted).
Here, the case against the defendant was far from overwhelming, depending almost entirely on whose version of events the jury believed. The only independent testimony, that of the Needham police sergeant, lent only some support to the victim's account and was not entirely inconsistent with the defendant's. It is a "plausible inference" that the verdict might have been different had the prior bad acts evidence been completely or partially excluded, or had any such evidence that was admitted been accompanied by more suitable limiting instructions.
We conclude that the admission of the acquittal evidence, regarding events on November 26, 2008, contrary to the rule later announced in Dorazio , contributed significantly to a risk of a miscarriage of justice. It was particularly damaging because it expressly invited the jury to reconsider, under a lower, preponderance of the evidence standard, see note 10, supra , whether the defendant had previously violated the 209A order. Of all the prior bad acts evidence admitted at trial, this was one of only two incidents as to which the victim provided a specific date and the defendant acknowledged that some incident had actually taken place on that date. Of course, the testimony as to what had occurred on November 26, 2008, strongly differed on important details, and the victim's version—in which the defendant had gone out of his way to drive onto the cul-de-sac in order to encounter her at her mother's house—severely undercut the defense theory of accidental or incidental contact on the day of the charged incident. Thus, the conflicting testimony about the November 26, 2008, incident presented a critical test of the defendant's credibility—a test that, if failed, would likely heavily influence the jury's assessment of whether he was telling the truth about the charged incident. Under Dorazio , however, having once been acquitted of the prior incident, he should not have been put to that test at all.
See Dorazio , 472 Mass. at 546, quoting from Dowling v. United States , 493 U.S. 342, 361-362 (1990) (Brennan, J., dissenting) ("[T]he fact that the defendant is forced to relitigate his participation in a prior criminal offense under a low standard of proof combined with the inherently prejudicial nature of such evidence increases the risk that the jury erroneously will convict the defendant of the presently charged offense").
Although the defendant denied any contact with the victim on November 26, 2008, he did acknowledge that he was stopped by the police. See note 3, supra . The other such incident was the one occurring on December 1, 2007, where the defendant testified there had been contact with the victim.
As for the other prior bad acts evidence, we conclude that its volume and character created several of the very risks recognized long ago in the 1882 Jackson decision and reiterated in 2012 in Anestal . It required the defendant to meet charges of which the complaint (and in several instances the motion in limine) gave him no notice; it diverted the attention of the jury from the crime immediately before it; and, "by showing the defendant to have been a knave on other occasions, [it] creat[ed] a prejudice which may cause injustice to be done him." Jackson , 132 Mass. at 20-21. Accord Anestal , 463 Mass. at 665.
Moreover, in a case turning almost entirely on credibility, the prior bad acts evidence bolstered that of the victim. The jury were likely to have asked themselves why the victim would fabricate not just one, but numerous instances of forbidden contact by the defendant—at least twenty-one instances, by the prosecutor's exaggerated count—over a period of several years. See Commonwealth v. Clark , 23 Mass. App. Ct. 375, 381-382 (1987) (substantial risk of miscarriage of justice where erroneously admitted evidence enhanced complaining witness's credibility, which was "decisive issue"); Commonwealth v. Giberti , 51 Mass. App. Ct. 907, 909 (2001). Finally, counsel's failure to object was not a tactical decision; her opposition to the motion in limine and her request for a limiting instruction in the final charge show otherwise. We conclude that the combination of the acquittal evidence and other errors here created a substantial risk of a miscarriage of justice and that the defendant is entitled to a new trial.
3. Other issues . The defendant argues that the judge abused his discretion by admitting the 209A order itself in evidence and by failing to require (even after the defendant and the Commonwealth had agreed on redactions) that certain assertedly prejudicial language be redacted before the order was shown to the jury. We see no abuse of discretion in the judge's admission of the order for impeachment purposes here. At any new trial, however, in the event that circumstances arise warranting the admission in evidence of the 209A order, the two standard preprinted sentences concerning a finding of "substantial likelihood of immediate danger of abuse" should be redacted, as set forth in Commonwealth v. Reddy , 85 Mass. App. Ct. 104, 105, 108-110 (2014). See id . at 110, quoting from Commonwealth v. Foreman , 52 Mass. App. Ct. 510, 515 (2001) (reasoning that such language places a " 'judicial imprimatur' on the finding and on the victim's credibility").
We also leave for any new trial the defendant's argument that the notations reflecting the repeated extensions of the 209A order should have been redacted. Absent an appropriate stipulation, portions of those notations, while perhaps placing a similar imprimatur on the victim's credibility, might also be necessary to establish that the order was in effect on the date that the violation allegedly occurred. Reddy , 85 Mass. App. Ct. at 109. Whether and what portions of such notations should be redacted are matters for the trial judge's discretion.
Judgment reversed .
Verdict set aside .
By the Court (Vuono, Massing & Sacks, JJ. )
The panelists are listed in order of seniority.
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