Opinion
11-P-4
03-28-2012
COMMONWEALTH v. MICHAEL BOOTH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Booth, appeals from a jury conviction of vandalism. We affirm.
1. Testimony regarding defendant's attack on witness and arrest and incarceration. There was no error in the admission of testimony by the defendant's former girlfriend about his attack on her. The testimony was admissible to explain her contradictory statement to the police. See Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 68 (2010). The judge did not abuse his considerable discretion by admitting the evidence.
2. Denial of repetitive cross-examination. The judge did not abuse his discretion by limiting the defendant's cross-examination. The record establishes that the questions had, in fact, been asked and answered.
3. Lack of limiting instruction regarding extrinsic conduct. The defendant did not seek such a limiting instruction at trial and did not object to its absence. No such instruction is required unless it is requested. Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). Indeed, such a request may be forgone by counsel to avoid calling attention to the evidence. There was no error, and therefore no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Cypher, Katzmann & Grainger, JJ.),