Opinion
No. 15–P–1190.
05-17-2016
COMMONWEALTH v. Joseph DONAHUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted after a jury trial of assault by means of a dangerous weapon. G.L. c. 265, § 15B(b ). The conviction was based on an incident where the defendant threatened a security guard with a knife outside the Cask ‘n Flagon restaurant (restaurant). On appeal, he argues that (1) the trial judge erred when he admitted prior bad act evidence; (2) the cumulative effect of the erroneously admitted evidence was unfairly prejudicial; and (3) it was error to deny his motion for a mistrial. We affirm.
1. Prior bad act evidence. The defendant argues that the judge abused his discretion in allowing evidence that the defendant was banned from the restaurant because he was found using heroin in the bathroom. The judge allowed this evidence on the ground that it bore on the defendant's motive in committing the assault at issue here. “We review the decision of the judge to admit evidence of a prior bad act to establish the defendant's motive under the abuse of discretion standard.” Commonwealth v. Barbosa, 457 Mass. 773, 794 (2010).
“ ‘It is long established that evidence of uncharged criminal acts or other misbehavior is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as “common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” ‘ ... The rule against prior bad act evidence reflects the ‘inherent danger’ that the jury will assume that, because the defendant has ‘previously misbehaved, indictably or not,’ he must have committed the crime charged.... However, unless the probative value of the evidence is substantially outweighed by the risk of unfair prejudice to the defendant, the evidence may be admissible for a permissible purpose, such as to prove that a defendant had a motive to commit the crime.” Id. at 793–794.
The defendant contends that his motive could have been sufficiently established by the unadorned fact that he had been previously banned from the restaurant, and that the reason behind the ban should therefore have been excluded because its probative value was outweighed by its prejudicial impact. We cannot say that the judge abused his discretion in weighing the factors as he did. The testimony regarding the defendant's heroin use did not increase the evidence's prejudicial impact to a point where it substantially outweighed its probative value as a matter of law. Allowing the jury to hear the reason for the defendant's banishment could have quelled what may otherwise have been speculation (harmful to the defendant) on the jury's part as to the reason behind the ban. In addition, the judge gave a limiting instruction immediately after the admission of this evidence. See Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014) (no error in admitting evidence of prior bad acts “[w]here the evidence was accompanied by the judge's limiting instruction”).
The defendant also argues that the judge erred by failing to strike, sua sponte, testimony that the defendant had thrown a rock at the victim two days prior to the incident. The judge had denied the Commonwealth's motion in limine to admit this evidence on the ground that its probative value was “substantially outweighed by its prejudicial effect.” At the time of his ruling, the judge understood that the rock had been thrown at someone else, not the victim. The judge was free to revisit his earlier ruling, particularly because the factual basis for it changed at trial, when it became clear that the rock had been thrown at the victim. See Commonwealth v. Ortiz, 431 Mass. 134, 142 n.7 (2000). See also Commonwealth v. Gonzalez, 22 Mass.App.Ct. 274, 277 n.5 (1986), quoting from Luce v. United States, 469 U.S. 38, 41–42 (1984) (“[E]ven if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling”).
The defendant argues that, even accepting that the judge could alter his earlier ruling, the evidence was inadmissible prior bad act evidence in that it did not bear on motive. As the defendant points out, it is difficult to see how the earlier rock-throwing episode provided the defendant with a motive for the assault two days later. But even assuming error, it was not prejudicial.
“An error is not prejudicial if it did not influence the jury, or had but very slight effect; however, if we cannot find with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, then it is prejudicial.” Commonwealth v. Cruz, 445 Mass. 589, 591 (2005) (quotations omitted). The judge guarded against any prejudicial effect by giving a limiting instruction immediately after the testimony came in and again during his final charge. See Commonwealth v. Julien, 59 Mass.App.Ct. 679, 686–687 (2003) ( “[T]he judge adequately guarded against any potentially prejudicial effect [of prior bad act testimony] by carefully instructing the jury, when the testimony was admitted, and again during the final charge, that the evidence was limited to demonstrate the relationship between [the victim] and the defendant, motive, and intent, and not the defendant's propensity to commit the alleged crimes”). Finally, the fact that five eyewitnesses testified to seeing the defendant assault the victim leads us to conclude that, even if the rock-throwing incident should not have been admitted, its minor place in the over-all case did not substantially sway the jury's judgment. See Commonwealth v. LeClair, 68 Mass.App.Ct. 482, 487–488 (2007).
2. Cumulative error. Our discussion, supra, disposes of the defendant's argument that this is a case of cumulative error.
3. Motion for a mistrial. “We review a decision denying a motion for a mistrial under the abuse of discretion standard.... ‘[T]he burden of demonstrating an abuse of discretion is a heavy one.’ ... The judge [i]s in the best position to assess any potential prejudice and to tailor an appropriate remedy short of declaring a mistrial, where possible.” Commonwealth v. Copney, 468 Mass. 405, 415 (2014). The defendant's motion for a mistrial was based on two improper suggestions the prosecutor made in her closing. The first was that the defendant's heroin use made him dangerous; the second was that the defendant's prior trespassing conviction suggested that he was determined to be on the restaurant's property. After the second of these inferences, the trial judge interrupted the prosecutor's closing, made her aware at sidebar that the inferences were improper, and then issued a curative instruction as to both. This remedy cannot be said to have lain outside the trial judge's discretion. See Commonwealth v. De Christoforo, 360 Mass. 531, 537 (1971) (trial “judge acted properly within his discretion in denying a mistrial and in relying on curative instructions to erase the error,” where prosecutor made two improper remarks in closing argument).
Judgment affirmed.