Opinion
16-P-498
03-10-2017
COMMONWEALTH v. Eric I. SIMON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction following a jury-waived trial in Lowell District Court of the assault and battery of his brother John Simon. The defendant argues that he was deprived of the right to present a defense when the judge admitted de bene testimony from the estranged brothers' sister, Debra Simon, then excluded it because the defendant did not testify. We affirm.
For Convenience, we refer to the defendant's brother and sister as "John" and "Debra," respectively.
Background . On May 18, 2014, John stopped at a 7-Eleven convenience store in Lowell. As he was scratching a lottery ticket in his truck, he heard his brother's voice screaming at him. John looked up and saw his brother moving quickly toward the truck. The defendant "yelled something about a ladder," opened the door, dove into the truck and punched John in the face fifteen or twenty times. John, who was wearing his seatbelt, put up his arms to block the blows. After a couple of minutes, the defendant stopped and ran away.
John had some bleeding and swelling on his face, a cut above his right eyebrow, and a black eye. He called the police and gave responding officers an address where he thought the defendant might be staying. When the officers arrived at that address, the defendant approached them and stated that John had attacked him. Responding Lowell police Officer Brian Kinney did not observe injuries on the defendant or any of the marks reflected in several undated photographs that were introduced in evidence. Officer Kinney asked the defendant to show his injuries and "looked at whatever [the defendant] showed [him]," but the defendant "did not show [him] his arms." The defendant was arrested and charged with assault and battery.
Before trial, the defendant moved in limine to introduce prior bad acts by John during the course of several intra-familial disputes over the course of "the last 6 or 7 years," for the purpose of demonstrating John's "bad temper." The defendant argued that he was "relying on self-defense and intends on relying on prior specific acts" to show that John was the first aggressor. The trial judge stated that he would "deal with [first aggressor evidence] later on."
John testified at trial and denied calling the defendant over to his truck on May 18, spitting at him, punching the defendant, or touching him. When defense counsel started questioning John about his relationship with his and the defendant's sister Debra, the judge observed that they were "really far afield." The defendant called Debra as his sole witness at trial. The Commonwealth reserved objection to the testimony on the grounds that "first aggressor isn't an issue yet because the only person that's complained is the complainant and the officer." The judge stated that he would "see where it comes out."
Debra testified that she received a call from the defendant on May 18, 2014, and that he sounded upset because he thought that John was following him. Debra testified that John had threatened her in the past and that he had been violent with her five or six years earlier, when he had lived with her. She recalled one incident four years earlier when John yelled at his siblings after an uncle attacked a sister at their father's wake. The Commonwealth objected to Debra's testimony because "first aggression must be an issue; it's not an issue yet." The prosecutor continued:
John denied ever having lived with Debra.
"If counsel is making an offer of proof that her client's going to get on the stand and make it an issue, then I guess the Court could hear it de bene and then strike it later if it doesn't become an issue?"
The judge admitted the testimony de bene. He sustained an objection to defense counsel's question to Debra, "Has John Simon ever threatened, yes or no, threatened you?," and struck "all of that testimony." When the prosecutor started to cross-examine Debra on her bias, the judge interjected that "we're not going to re-litigate a lot of other family troubles." The Commonwealth attempted to impeach Debra with a copy of the defendant's conviction of assault and battery in order "to rebut ... the defendant's issue of first aggressor," defense counsel objected, and the judge responded that he "ha[dn]'t heard that yet." The judge would "let [the Commonwealth] explore that with the witness if [he] hear[d] first aggressor evidence ... from the defendant," and he "let [the Commonwealth] hold the witness on rebuttal to see if that develops." The defendant rested without testifying and Debra was not recalled. The judge rejected the defendant's argument that the first aggressor issue adequately was raised through Officer Kinney's testimony, and he allowed the Commonwealth's motion to strike Debra's testimony. There was no objection. The judge found the defendant guilty and sentenced him to one year of probation.
Page 100 of the transcript, to which the defendant cites in support of his claim that the error is preserved, see the defendant's brief at 12, reflects the judge's ruling on the Commonwealth's objection to admission of Debra's testimony.
Discussion . We review the judge's unobjected-to ruling on the motion to strike to determine whether there was error, and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Letkwoski , 469 Mass. 603, 617 (2014).
"[T]rial judges have the discretion to admit in evidence specific incidents of violence that the victim is reasonably alleged to have initiated," Commonwealth v. Adjutant , 443 Mass. 649, 650 (2005), when such evidence "has substantial probative value and will help the jury identify the first aggressor when the circumstances of the altercation are in dispute." Id . at 656. Here, the circumstances of the altercation were not in dispute, and "[t]here was no conflicting evidence as to the series of events leading up to the" assault on John. Commonwealth v. Vargas , 475 Mass. 338, 347 (2016). "[T]he right of self-defense ... cannot be claimed by a person who provokes or initiates an assault," Commonwealth v. Pring-Wilson , 448 Mass. 718, 733 (2007), quoting from Commonwealth v. Maguire , 375 Mass. 768, 772 (1978), and Debra's testimony, "if admitted, would [not] have supported the inference that [John], with a history of violent and aggressive behavior ..., probably acted in conformity with that history by attacking [the defendant], and that the defendant's story of self-defense was truthful." Commonwealth v. Adjutant , supra at 658. Moreover, the episodes to which Debra testified "were separated in time from the charged offense by approximately" six years. Commonwealth v. Gaynor , 73 Mass. App. Ct. 71, 75-76 (2008). We see no abuse by the judge of his "sound discretion ... to exclude marginally relevant" evidence which would have led to "undue exploration of collateral issues." Commonwealth v. Adjutant , supra at 663. There was no error, and no risk of a miscarriage of justice.
The judge apparently did not credit the defendant's statements to Officer Kinney that John provoked the attack, and "we will not substitute our judgment for that of the trier of fact." Commonwealth v. Boucher , 438 Mass. 274, 276 (2002).
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Judgment affirmed .