Opinion
No. 11–P–1850.
2012-11-7
COMMONWEALTH v. Arthur S. BUCKLEY, Jr.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Having been convicted by a District Court jury of violating a restraining order under G.L. c. 209A, the defendant now appeals. We affirm.
1. The defendant contends that the trial judge erred in admitting evidence of the prior abusive behavior that led to the issuance of the original restraining order in 2005 (or five years before the charged incident). Over the defendant's objection, the victim stated that there was a previous abusive relationship, that on one occasion the defendant had grabbed her wrist and caused it to bleed, and that he repeatedly tried to stop her from going to Alcoholics Anonymous sessions. “While evidence of other ... wrongful behavior may not be admitted to prove the character or propensity of the accused as enhancing the probability that he committed the offence ... it is admissible for other relevant probative purposes.” Commonwealth v. Tobin, 392 Mass. 604, 613 (1984), quoting from Commonwealth v. Chalifoux, 362 Mass. 811, 815–816 (1973). Prior bad acts may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, nature of relationship, or absence of mistake or accident. Mass. G. Evid. § 404(b) (2012). Commonwealth v. Barbosa, 457 Mass. 773, 793 (2010). Where the evidence is of “borderline” relevance, the judge shall exclude the evidence unless its probative value on the issue in contention outweighs the undue prejudice that may flow from it. Commonwealth v. Helfant, 398 Mass. 214, 225 (1986). More specifically, in a case involving the alleged violation of a “no abuse” provision of a protective order, the Commonwealth may introduce evidence of prior abusive behavior in order to show that a victim reasonably feared that a defendant would harm him or her. See Commonwealth v. Johnson, 45 Mass.App.Ct. 473, 477 n. 6, 479 (1998). Such evidence is also probative of a defendant's course of conduct or state of mind. Commonwealth v. Chartier, 43 Mass.App.Ct. 758, 760 (1997). In the prosecution of a violation of a domestic abuse order, evidence of a defendant's prior harassment of the victim is admissible to establish context for evaluating the evidence presented at trial. See id. at 761. “Without the challenged evidence [the defendant's behavior] could have appeared to the jury as an essentially inexplicable act....” Commonwealth v. Leonardi, 413 Mass. 757, 763 (1992), quoting from Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1982).
Here, the judge did not abuse his discretion by admitting evidence of prior bad acts because the evidence was relevant to the hostile nature of the relationship between the victim and the defendant. The evidence of prior abuse had a strong logical connection to the offense charged. Commonwealth v. Johnson, 45 Mass.App.Ct. at 478–479. In allowing the contested testimony, the judge properly permitted the Commonwealth to provide some context as to why the defendant would be motivated to approach the victim, seemingly out of the blue, some five years after the issuance of the restraining order. “If viewed in isolation, the conduct with which the defendant was charged might seem a chance or inadvertent encounter to which the victim overreacted.” Commonwealth v. Crimmins, 46 Mass.App.Ct. 489, 494 (1999). The defendant relies on Commonwealth v. Picariello, 40 Mass.App.Ct. 902, 903 (1996), where this court vacated the defendant's conviction because we found the testimony regarding the defendant's prior bad acts to be so inflammatory that it would “offend any reasonable juror.” There, “evidence of the defendant's outrageous conduct immediately prior to the order can only have been designed to tip the credibility scale against the defendant, and there can be little doubt that it did.” Id. at 904. In the case at bar, by contrast, the evidence was not inflammatory, and, as noted above, was admitted for permissible purposes.
The defendant also claims that the judge erred in not instructing the jury regarding the prior bad acts. However, the defendant did not request any such instruction. “[T]he law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant.” Commonwealth v. Leonardi, 413 Mass. at 764. It was not an unreasonable tactical decision for counsel to decide not to request a limiting instruction. See Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 55 (2009) (defendant may have wished to avoid drawing any further attention to evidence by requesting a limiting instruction).
2. The defendant contends that the prosecutor erred in her closing argument by (1) referring to a fact not in evidence, i.e., that the victim had a “domestic abuse counselor,” (2) shifting the burden of proof to the defendant by arguing that the defendant's alibi witness, Hood, did not promptly come forward to the police and hence was not credible, and (3) asking the jury to hold the defendant accountable for his actions and to give effect to the restraining order. These statements, neither objected to at trial nor the subject of a proposed curative instruction, did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Place, 81 Mass.App.Ct. 229, 233 (2012).
Here it was defense counsel who first referred to the victim's “domestic abuse counseling” in his closing argument, a description which the prosecutor then adopted in her closing. We also note that in the trial transcript, upon cross-examination, the victim referred to her “domestic funds worker,” which was likely a transcription error.
Regarding the defendant's alibi witness, the prosecutor laid the proper foundation to impeach him, and his failure to approach the police was a proper subject for comment. In commenting on the witness's failure to approach the police, the prosecutor did not improperly suggest that the defendant failed to present certain evidence or contradict certain testimony. “A person ordinarily has no legal obligation to provide exculpatory information to the police .” Commonwealth v. Washington, 459 Mass. 32, 41 (2011), quoting from Commonwealth v. Hart, 455 Mass. 230, 238 (2009). “However, where the ‘natural response’ of a person with exculpatory information would be to come forward with that information, a witness's failure to do so may support ‘a reasonable inference that the exculpatory information is not credible.’ “ Commonwealth v. Washington, supra, quoting from Commonwealth v. Hart, supra. Thus, the prosecutor's comment was fair impeachment, and appropriate for jury consideration.
Finally, the prosecutor did not call on the jury to send a message about restraining orders, but rather asked the jury to hold the defendant accountable for his actions based on the evidence presented. She prefaced her challenged comment—“If he's not held accountable for his actions ... the restraining order becomes simply a piece of paper”—with a full analysis of the evidence. She then properly asked the jury to decide the issues in this case, whether there was a restraining order and whether it had been knowingly violated.
Judgment affirmed.