Opinion
19-P-59
12-13-2021
COMMONWEALTH v. Robert O'CONNOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Robert O'Connor, was tried in the Superior Court on several indictments arising out of a series of verbal and physical altercations at a bar one evening. A jury convicted him of mayhem, G. L. c. 265, § 14, violation of another's constitutional rights causing bodily injury, G. L. c. 265, § 37, and two charges of assault and battery, G. L. c. 265, § 13A. On appeal, he asserts errors in the admission of certain evidence, in the prosecutor's use of cross-examination and closing arguments, and in the jury instruction on self-defense. We affirm.
A second jury convicted him of being a habitual offender with respect to the mayhem and violation of constitutional rights charges. See G. L. c. 279, § 25.
Discussion. 1. Defendant's prior behavior at the bar. In describing the events at the bar on the night in question, three witnesses alluded to the defendant's prior behavior at the bar. Lee Kindell (a bar patron and the principal victim of the defendant's crimes) testified over the defendant's objection that, during the defendant's attack on Danny Kelly (the bar manager and victim of one assault and battery charge), he heard Kelly tell the defendant, "This is the third time you've been in here intimidating me." When Kindell asked Kelly if he was all right, Kelly said, "No," and repeated, "That's the third time, this is the third time this asshole has come in here trying to threaten me." On cross-examination by defense counsel, bartender David Gillis testified, without objection, that Kelly warned him not to intervene in Kelly's fight with the defendant because the defendant was a "dangerous man." Finally, when asked about the defendant's demeanor on the night in question, Kelly answered over the defendant's objection that the defendant had "[t]he same demeanor as he always has. He just acts like a bully all the time." The defendant argues that this testimony was inadmissible evidence of his criminal propensity.
The defendant also argues that the Commonwealth introduced propensity evidence when, in response to defense counsel's cross-examination, Kindell testified that he had been staying with his girlfriend before the defendant attacked him but that the prosecution gave him money to stay in a hotel because she "was afraid for any repercussions or retaliations" from the defendant. The testimony concerned the direct effects of the defendant's charged conduct; it did not refer to his character or prior bad acts.
While "[t]he Commonwealth may not introduce evidence of the defendant's other bad acts in order to demonstrate bad character, or a propensity to commit the crimes charged," such evidence may be admissible if it is relevant for a valid purpose and its probative value is not outweighed by undue prejudice. Commonwealth v. McDonagh, 480 Mass. 131, 140-141 (2018). We review the admission of such evidence for abuse of discretion. See id. at 140 ; Commonwealth v. Guy, 454 Mass. 440, 443 (2009).
This testimony was relevant and admissible to set the stage, establish the defendant's motive and state of mind, and explain the existing relationship between the defendant and Kelly. See Commonwealth v. Gonzalez, 469 Mass. 410, 420-421 (2014). The risk of undue prejudice from admitting the testimony was minimal. The prosecutor did not refer to it during closing argument, see Guy, 454 Mass. at 443-444 ; the defense solicited some of the challenged testimony, see Commonwealth v. Marrero, 427 Mass. 65, 70 (1998) ; and, it was cumulative of the defendant's own testimony that he had had a prior "run-in" with Kelly, see Commonwealth v. Braley, 449 Mass. 316, 326 (2007). We discern no abuse of discretion in admitting the challenged testimony.
2. Use of recorded telephone calls. The trial judge admitted, over the defendant's objection, recordings of telephone conversations the defendant had with his brother while in pretrial custody. In these conversations, the defendant gave a partial account of the events at the bar, denied witnesses’ accounts, falsely claimed that the Kelly had knocked out two of his teeth (but directed his brother to tell Kelly that he had done so), and explained how the brother's attempts to downplay the defendant's conduct failed to establish a viable claim of self-defense. The defendant argues that the recordings were more prejudicial than probative and improperly used his right to consult an attorney against him.
The recorded calls had significant probative value that was not substantially outweighed by any prejudice. The defendant's statements about the sequence of events were directly relevant to the charged conduct. See Commonwealth v. Rosa, 468 Mass. 231, 242 (2014). His statements about the accounts of various witnesses, Kelly punching out his teeth, and the factual requirements to successfully demonstrate self-defense suggested that that the defendant was attempting to influence both his brother's telling of events and, through his brother, the potential testimony of other witnesses. See Commonwealth v. Mejia, 88 Mass. App. Ct. 227, 237 (2015). Any prejudice from jury speculation about an uncharged count of witness intimidation, see Commonwealth v. Martinez, 431 Mass. 168, 173-174 (2000), or from the defendant's tone of voice and persistent use of profanity on the recordings, see Rosa, supra at 241-242, was minimal. The judge did not abuse his discretion in admitting the recordings.
We also reject the notion that admitting the defendant's statements to his brother about establishing self-defense infringed on his right to counsel. The statements did not specifically refer to the defendant's attorney-client communications. To the extent the recorded conversations caught the defendant disclosing privileged communications to a third party, the prosecutor's use of that evidence did not suggest or imply that the jury should draw a negative inference from the defendant's decision to consult an attorney. Contrast Commonwealth v. Beauchamp, 424 Mass. 682, 690-691 (1997). Indeed, it was only after the jury had heard the recordings that defense counsel elicited testimony from the defendant that they had discussed self-defense shortly before the recorded phone call. Defense counsel's strategic decision to offer evidence of that discussion as an innocent explanation for the defendant's potentially incriminating statements to his brother did not penalize the defendant for exercising his right to an attorney.
In the alternative, the defendant argues that even if the judge properly admitted the recordings, the prosecutor committed reversible error in referring to them during his summation. During closing arguments, the prosecutor played the recordings and drew the jury's attention to the contrast between the defendant's tone and attitude during the calls and his demeanor on the stand at trial. Based on the contrast, he argued that the defendant is "a controlling[ ] manipulator" and that the anger he displayed during the calls more closely resembled the defendant's demeanor on the night of the crimes. The defendant contends for the first time on appeal that the closing improperly urged the jury to rely on the recordings as evidence of the defendant's criminal propensity.
It was plainly proper for the prosecutor to argue that the jury should discredit the defendant's trial testimony in light of his statements and demeanor on the calls. See Commonwealth v. Kozec, 399 Mass. 514, 521 (1987). The same cannot be said, however, of the prosecutor's argument that the defendant's demeanor on the calls was "closer to how the defendant was that night." The argument improperly invited the jury to infer that, on the night of the crimes, the defendant acted in conformity with his bad character. See Commonwealth v. Howard, 469 Mass. 721, 744-745 (2014). Nevertheless, we conclude that, in the absence of an objection at trial, this isolated propensity argument did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 142 (2001). See also Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 313-314 (2011) (considering lack of objection at trial as indication that prosecutor's arguments were not unfairly prejudicial).
3. Cross-examination on defendant's postarrest silence. On cross-examination, the prosecutor asked the defendant a series of questions about whether the defendant told, or tried to tell, his side of the story to the police following his arrest. Although the defendant concedes that he opened the door to this line of questioning, he argues that the extent of the questioning violated his due process rights.
Due process generally prohibits prosecutors from introducing evidence of defendants’ postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 618 (1976). That prohibition subsides, however, when the defendant offers an explanation other than his right to remain silent for why he did not speak with the police. See id. at 619 n.11 ; Irwin v. Commonwealth, 465 Mass. 834, 853 n.32 (2013). Specifically, the defendant testified on direct examination that the police never asked for his side of the story despite his trying to tell it. This testimony opened the door for the prosecution to impeach the defendant by questioning him about the opportunities he had to tell the police his side of the story. Although lengthy and persistent, nothing about the prosecutor's questioning improperly strayed beyond the limited purpose of rebutting the defendant's claim that he had tried to tell the police his side of the story. Cf. United States v. Martinez, 988 F.2d 685, 702 (7th Cir. 1993) ("Where the rebuttal evidence does not directly contradict the evidence previously received, ... it is within the district court's discretion to deny its admittance"). Indeed, on one occasion, the defendant volunteered that he asked to speak to a detective, inviting further cross-examination about the identity of the detective and the timing of the request.
The defendant's testimony that he did not invoke his right to silence also calls into question whether such a prohibition existed in this case. See Commonwealth v. McClary, 33 Mass. App. Ct. 678, 685 (1992).
The defendant gave the following testimony on direct examination:
Q.: "Did any of the police ever ask you our side of the story?"
A.: "No."
Q.: "Did you try to tell the police your side of the story?"
A.: "Yes."
4. Cross-examination after denials. During cross-examination, the prosecutor posed numerous questions to the defendant about his conduct on the night in question based on facts elicited from the Commonwealth's witnesses. In some cases, the prosecutor persisted in challenging the defendant's version of events after the defendant disagreed with the prosecutor's characterization of his conduct. However, the defendant's reliance on Commonwealth v. Christian, 430 Mass. 552, 559-564 (2000), and Commonwealth v. McGann, 484 Mass. 312, 320-324 (2020), is misplaced. At issue in those cases was whether the prosecutor had a good-faith basis for asking the questions and, even if so, whether the questioning was overly argumentative or persistent, effectively informing the jury of facts not properly in evidence. See McGann, supra at 321-322; Christian, supra at 561-563. Here, by contrast, the factual bases of the prosecutor's questioning had already been disclosed to the jury through previous testimony in evidence. Thus, the concern animating the decisions in Christian and McGann -- namely, the ability of the prosecutor to imply incriminating facts while denying the defendant the opportunity to discredit the source of those facts -- was not present here. See Christian, supra at 563. We discern no error.
The defendant's reliance on Commonwealth v. Long, 17 Mass. App. Ct. 707, 707-710 (1984), is even less apt. At no time did the prosecutor "expressly ask the defendant to characterize the witnesses’ testimony as either false or true" or implicitly "tempt the defendant to comment on inconsistencies between his testimony and that of the other witnesses." Id. at 708. Rather, the prosecutor merely asked the defendant to affirm or deny particular facts drawn from previous testimony. See id.
5. Self-defense instruction. The judge instructed the jury that self-defense was unavailable to the defendant if they concluded that "[t]he defendant was the first to use or threaten force and did not withdraw in good faith from the conflict and announced to the person he provoked his intention to withdraw and end the confrontation without any use of or additional use of force." The defendant argues that such a finding by the jury should not have negated his right to self-defense because, at the time he threatened the victim with violence, the "victim [was] in a place of safety and [had to] travel to the defendant for any combat to occur."
Threats of violence are sufficient to establish a defendant as a first aggressor who may forfeit the right to claim self-defense. See Commonwealth v. Harris, 464 Mass. 425, 435-436 (2013). The defendant does not challenge this proposition in situations where the victim is in a place of danger at the time of the threat. Nor does he challenge the sufficiency of the evidence that he threatened Kindell with violence.
We need not address whether the right to self-defense actually extends (or should extend) to the situation the defendant suggests. No view of the evidence would have permitted the jury to simultaneously find that the defendant threatened violence and that Kindell was in a place of safety at the time of the threat. At the time of the only alleged threat, several people had just physically removed the defendant from the bar following his fight with Kelly, and the defendant and Kindell were standing at the entrance of or just outside the bar. Given the defendant's proximity to Kindell at the time of the threat and Kindell's inability to avoid the defendant should Kindell leave or the defendant reenter the bar, the jury could not have found that Kindell was in a place of safety at that time. Accordingly, the defendant suffered no prejudice even if his conception of self-defense is correct. See Commonwealth v. Harris, 464 Mass. 425, 436 (2013).
Judgments affirmed.