See also Commonwealth v. Makarewicz, 333 Mass. 575, 593 (1956), and cases cited; Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. at 434. Unlike the situation in Commonwealth v. Triplett, 398 Mass. 561, 563-564 (1986), the evidence that the defendant had problems with his military career disproves his direct testimony, or inferences that a jury could have drawn therefrom, that the termination of service was routine. See Commonwealth v. Jacobs, 6 Mass. App. Ct. 867, 868 (1978).
It is well-established, and we have repeatedly stated, that it is improper to ask a witness at trial to assess the credibility of other witnesses' testimony. See, e.g., Commonwealth v. Triplett, 398 Mass. 561, 567 (1986) ( Triplett); Commonwealth v. Long, 17 Mass. App. Ct. 707, 708 (1984) ( Long). The purpose of the bar on credibility testimony is that "[t]he factfinder, not the witness, must determine the weight and credibility of testimony." Triplett, 398 Mass. at 567.
In the course of an argument that the trial court's instructions were erroneous and violated his right to due process under the Fifth and Fourteenth Amendments, he claimed that the court's "garbled" instructions on self-defense contradicted what the court had previously indicated its instructions on the matter would be, with the consequence that the defendant had been "effectively denied" the "right to a closing argument." He also referred to his reliance "on the trial court's promise of a manslaughter instruction in crafting his closing argument, a right guaranteed by both the state and federal constitutions," and citedCommonwealth v. Triplett, 500 N.E.2d 262, 398 Mass. 561 (1986) (citing Herring v. New York, 422 U.S. 853 (1975)). (See Pet'r's Mem. of Law and App. in Supp. of Pet. for Writ of Habeas Corpus at App. 102.)
Evidence of a defendant's prior bad acts is inadmissible to show a propensity to commit the crime or to illustrate bad character. Commonwealth v. Triplett, 398 Mass. 561, 562, 500 N.E.2d 262 (1986), quoting Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986) ; Commonwealth v. Trapp, 396 Mass. 202, 206, 485 N.E.2d 162 (1985), S.C., 423 Mass. 356, 668 N.E.2d 327 (1996), cert. denied, 519 U.S. 1045, 117 S.Ct. 618, 136 L.Ed.2d 542 (1996), and cases cited. However, such evidence may be admissible if it is relevant for some other purpose, such as βcommon scheme, pattern of operation, identity, intent, or motive,β as long as its probative value is not substantially outweighed by its prejudicial effect.
Admission of the statement allowed the prosecution to challenge the nontestifying defendant's credibility by showcasing Erickson's and Baker's repeated statements that they did not believe the defendant, and impinged on the jury's fact finding through numerous repetitions of the officers' belief that the defendant was guilty. See Commonwealth v. Triplett, 398 Mass. 561, 567, 500 N.E.2d 262 (1986), quoting Commonwealth v. Dickinson, 394 Mass. 702, 706, 477 N.E.2d 381 (1985) (fundamental principle that witness cannot be asked to assess credibility of his testimony or that of other witnesses). Immediately prior to the playing of the audiotape, every juror was given a copy of a transcript of the statement, on which the juror was permitted to take notes, and which, in addition to a copy of the audiotape, was with the juror during deliberations.
"'[A] witness cannot be asked to assess the credibility of his testimony or that of other witnesses.'" Commonwealthv. Alphas, 430 Mass. 8, 17 (1999), quoting Commonwealthv. Triplett, 398 Mass. 561, 567 (1986). The defendant argues that a series of questions asking that he confirm his own version of events or that of the officers was the functional equivalent of asking him to opine on the credibility of the officers' conflicting version of what happened.
A witness should not be asked and is not permitted to comment on the credibility of another witness because "[t]he fact finder, not the witness, must determine the weight and credibility of testimony." Commonwealth v. Triplett, 398 Mass. 561, 567, 500 N.E.2d 262 (1986). Accord Commonwealth v. Dickinson, 394 Mass. 702, 706, 477 N.E.2d 381 (1985).
βIt is a fundamental principle that βa witness cannot be asked to assess the credibility of his testimony or that of other witnesses.β β Commonwealth v. Triplett, 398 Mass. 561, 567 (1986), quoting from Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). The Commonwealth concedes that that portion of the cross-examination was improper and we agree.
Defense counsel's comment was a complete misstatement of Ms. Lewis's testimony and was prejudicial because it undermined the defense advanced at trial. See Commonwealth v. Triplett, 398 Mass. 561, 569 (1986) ("Counsel's statements in his closing were tantamount to an admission of his client's guilt, . . . and left the client denuded of a defense" [quotations and citations omitted]). In such circumstances, a defendant is denied effective assistance of counsel.
Harold Stewart, the defendant, concedes that when he returned his son to his former wife's residence after visiting with him, he left his motor vehicle to accompany the child inside the foyer of the former wife's building. The question the defendant raises on appeal is whether, under the circumstances, that conduct amounted to a statutory violation of G.L.c. 209A. He also argues that the prosecutor's direct examination of his former wife on the subject of previous 209A violations was inconsistent with Commonwealth v. Triplett, 398 Mass. 561, 562-563 (1986) (substantial miscarriage of justice to admit evidence of prior misconduct for purposes of showing bad character). These, in outline, are the facts the jury could have found.