Opinion
15-P-23
03-23-2016
COMMONWEALTH v. DALE HARDING.
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
On appeal from his convictions by a Superior Court jury of assault by means of a dangerous weapon (firearm) and possession of a firearm without a firearm identification card, the defendant claims error in the admission of evidence that he possessed a firearm prior to the assault. We affirm.
Evidence of prior bad acts is not admissible to prove the defendant's bad character or propensity to commit a crime; however, where relevant, such evidence may be used to show that the "defendant has the means to commit the crime." Commonwealth v. Ridge, 455 Mass. 307, 322 (2009). A judge has discretion to admit evidence of "[a] weapon that could have been used in the course of a crime" in order to prove that the defendant had the means to commit the crime. Commonwealth v. McGee, 467 Mass. 141, 156 (2014), quoting from Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). As a general matter, "[w]hether proffered evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error." Commonwealth v. McGee, supra (quotation and citation omitted).
In the present case, the judge did not abuse his discretion by permitting the defendant's former girl friend to testify that she saw a gun in the defendant's house a little more than two months before the shooting. The testimony was relevant to prove that the defendant had the means to commit the crime, and it was not unduly prejudicial. See Commonwealth v. Toro, 395 Mass. 354, 356-357 (1985) ("The fact that a defendant had a weapon that could have been used in the commission of a crime is relevant as a link in tending to prove that the defendant committed that crime," even "without direct proof that that particular instrument was in fact the one used" [citation omitted]). Contrary to the defendant's argument, the fact that the witness's observation of the gun occurred more than two months before the shooting does not render the testimony inadmissible. See Commonwealth v. Corliss, 470 Mass. 443, 450 (2015) (no error in admitting testimony that witness observed defendant with gun sixteen months prior to shooting). Moreover, the judge gave a proper limiting instruction addressing the purpose for which the evidence could be used, both immediately after the witness's testimony and again during the final jury charge, making it clear that the jury could not consider the testimony regarding the prior sighting of a gun as propensity or bad character evidence. See Commonwealth v. Auclair, 444 Mass. 348, 360 (2005) (jury presumed to follow judge's instructions).
Judgments affirmed.
By the Court (Green, Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 23, 2016.