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Commonwealth v. Graham

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Feb 25, 2016
14-P-1527 (Mass. App. Ct. Feb. 25, 2016)

Opinion

14-P-1527

02-25-2016

COMMONWEALTH v. ARTHUR GRAHAM.


NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a domestic incident, the defendant, Arthur Graham, was arrested and charged with assault and battery and assault and battery by means of a dangerous weapon upon the victim, his former girl friend. While in jail, the defendant sent a letter to the victim requesting that she recant the statement she gave to the police upon the defendant's arrest, which led to a second criminal complaint, charging the defendant with witness intimidation. The two complaints were joined for trial, and a jury in the Dorchester Division of the Boston Municipal Court Department convicted the defendant of assault and battery and intimidation of a witness. On appeal, he challenges: (1) the admission of prior bad act evidence; (2) the sufficiency of the evidence of intimidation of a witness; and (3) the prosecutor's closing argument. He also contends that the combined effect of the errors created a substantial risk of a miscarriage of justice. We affirm.

The defendant was found not guilty of assault and battery by means of a dangerous weapon.

1. Bad act evidence. The defendant challenges the admission of evidence of his prior abuse of the victim. The defendant objected to the admission of a specific incident of domestic violence, but concedes on appeal that the admission of the other bad act evidence was admitted without objection. Whether we review for an abuse of discretion or a substantial risk of a miscarriage of justice, the result is the same. There was no error.

Evidence of prior bad acts is not admissible to demonstrate the defendant's bad character or propensity to commit the crimes charged. Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Notwithstanding, evidence of prior bad acts may be admissible "to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Commonwealth v. Marshall, 434 Mass. 358, 366 (2001).

Here, the evidence was admissible for several reasons. It provided context for the victim's testimony, particularly in view of the defense that she had simply made up the allegations. The evidence also aided the jury in understanding the nature of the parties' relationship and the actions and inaction of the domestic violence victim in response. See, e.g., Commonwealth v. Butler, 445 Mass. 568, 575-576 (2005). Cf. Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 614 (2007). The evidence was also admissible to establish the defendant's state of mind. See Commonwealth v. Beneche, 458 Mass. 61, 80 (2010); Commonwealth v. Riley, 467 Mass. 799, 818 (2014). As to the charge of intimidation of a witness, the evidence was relevant to show both the defendant's state of mind in sending the letter, and the victim's state of mind, that is, whether she felt intimidated or harassed in receiving it. Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 100-101 (2015). For all of these reasons, the judge was correct in determining that any prejudice to the defendant was outweighed by the probative value of the evidence.

Given the ongoing and continually hostile nature of the relationship between the victim and the defendant, there is no merit to the defendant's claim that the October, 2012, incident was too remote in time. See Commonwealth v. Sharpe, 454 Mass. 135, 144 (2009).

The failure of the judge to give a limiting instruction regarding prior bad act evidence is also without consequence. The defendant did not ask for such an instruction, and a judge is not required to give one sua sponte. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 55 (2009). Indeed, the defendant expressed his satisfaction with the instructions given.

2. Sufficiency of the evidence. Intimidation of a witness requires proof that the defendant, directly or indirectly, wilfully misled, intimidated, or harassed another person who was a witness at any stage of a criminal investigation. G. L. c. 268, § 13B. In reviewing a sufficiency claim, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

In the letter, the defendant blames the victim for his incarceration and informs her that if she recants, it would show real love. He continues that she should do the right thing and not cooperate with the district attorney. It was reasonable for the jury to infer, based on the letter, that the defendant blamed the victim for his situation and that if she did not recant, there would be consequences. Taken together with the history of violence between the defendant and the victim, the evidence was sufficient to cause a reasonable person to feel intimidated or harassed. See Commonwealth v. Pagels, 69 Mass. App. Ct. at 614-615; Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 531, 537 (2010).

3. Prosecutor's closing argument. The defendant claims the prosecutor misstated the law of witness intimidation in her closing argument. As there was no objection, we review to determine whether the error, if any, created a substantial risk of a miscarriage of justice. The prosecutor's closing argument was, taken in context, a comment on the defendant's reasons for sending the letter to the victim. See Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 253 (2001). The closing argument was also a proper response to the defendant's attack on the victim's credibility. Ibid. On the record before us, there is no risk that the jury misunderstood the prosecutor to be instructing them on law. Moreover, any possible confusion as to the elements of the crime occasioned by the prosecutor's closing argument was remedied when the judge properly instructed the jury on the elements of the crimes charged. Commonwealth v. Tu Trinh, 458 Mass. 776, 786-787 (2011).,

As we have concluded that no error occurred, the defendant's argument, that the combined effect of the errors created a substantial risk of a miscarriage of justice, is without merit.

We have considered carefully all of the issues raised in the defendant's brief. If any are not specifically addressed, it is because we consider them to be without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Judgments affirmed.

By the Court (Cohen, Katzmann & Blake, JJ.),

The panelists are listed in order of seniority. --------

/s/

Clerk Entered: February 25, 2016.


Summaries of

Commonwealth v. Graham

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Feb 25, 2016
14-P-1527 (Mass. App. Ct. Feb. 25, 2016)
Case details for

Commonwealth v. Graham

Case Details

Full title:COMMONWEALTH v. ARTHUR GRAHAM.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Feb 25, 2016

Citations

14-P-1527 (Mass. App. Ct. Feb. 25, 2016)