Opinion
16-P-54
01-30-2017
COMMONWEALTH v. Adrian WATSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction of assault and battery by means of a dangerous weapon, the defendant claims error in the admission of certain evidence, and in the failure of the trial judge to declare a mistrial. We discern in the defendant's several claims no cause to disturb the judgment, and affirm, addressing the defendant's claims in turn.
1. Prior bad act . Contrary to the defendant's contention, the trial judge did not abuse his considerable discretion in allowing the Commonwealth to elicit testimony that the defendant had previously been involved in an altercation in which he wielded a baseball bat, after the defendant asserted that he feared for his safety during the incident giving rise to the present case because he was disabled and, consequently, unable to lift heavy objects. Evidence of prior bad acts is not admissible to suggest that a defendant has a propensity to commit the crime in question, but is admissible if probative for another purpose, such as motive, intent, or lack of mistake, and its potential for prejudice does not outweigh its probative value. See Commonwealth v. Helfant , 398 Mass. 214, 224 (1986). In the present case, where the defendant placed his claimed disability at issue in pressing a theory of self-defense, the Commonwealth was entitled to pursue evidence tending to discredit that assertion. In addition, as the Commonwealth observes, the trial judge administered clear and forceful limiting instructions to the jury, and the jury are presumed to follow the judge's instructions. There was no error.
We discern no substantial risk of a miscarriage of justice in the admission of evidence of prior convictions of certain misdemeanors for which the defendant received probation. As the Commonwealth observes, the defendant violated his probation and, as a consequence, received committed sentences. Accordingly, the evidence was admissible under G. L. c. 233, § 21. See Commonwealth v. Ortiz , 47 Mass. App. Ct. 777, 781 (1999) ( "[E]vidence of a misdemeanor conviction may be used to impeach the credibility of a witness only if a sentence was imposed"). In addition, we discern no substantial risk of a miscarriage of justice for the reasons cited in the Commonwealth's brief at pages fifteen to sixteen.
2. Reference to "assault" in ambulance record . We discern no substantial risk of a miscarriage of justice in the admission of the portion of the victim's ambulance record describing the incident giving rise to the victim's injury as an "assault." There was no dispute that the defendant and the victim engaged in a physical altercation; the defendant's claim at trial was that his actions were permissible as self-defense. Viewed in context, the reference would most likely have been understood by the jury as allegations and not a conclusion or opinion by medical professionals concerning the defendant's criminal liability, and "added nothing to other evidence presented." Commonwealth v. Aviles , 58 Mass. App. Ct. 459, 465 (2003), quoting from Commonwealth v. Gogan , 389 Mass. 255, 264 (1983).
3. Mistrial . Finally, the trial judge did not err in his failure to declare a mistrial, sua sponte, based on four occasions on which police witnesses used the word "victim" to refer to the victim. On three of the four occasions, the defendant's trial counsel objected, the trial judge sustained the objection and struck the comment from the record, and instructed the jury to disregard it. In the circumstances, we discern no error of law or abuse of discretion in the failure of the trial judge to declare a mistrial sua sponte. See Commonwealth v. Keevan , 400 Mass. 557, 571 (1987) ; Commonwealth v. Roman , 470 Mass. 85, 95-97 (2014).
On the fourth occasion, trial counsel did not object.
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Judgment affirmed .