Opinion
13-P-1261
04-29-2015
COMMONWEALTH v. MICHAEL C. HOPE.
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
The defendant, Michael C. Hope, was convicted of aggravated assault and battery after he beat the victim in her apartment. On appeal, he argues that the victim's testimony regarding (1) subsequent threats against her, (2) a restraining order, and (3) outstanding warrants was in each instance impermissible character evidence. We affirm.
Background. The victim and the defendant had known each other since 1994, dating and breaking up multiple times. The defendant was residing at the victim's apartment in Hyde Park. On the evening of July 20, 2011, they began arguing at the apartment. The victim asked the defendant to leave, but he refused. She began searching for her phone but could not find it. He began beating her repeatedly and following her around the apartment. At one point she said, "Stop. Please stop," but the defendant seemed "like he was in a trance." Someone, apparently a neighbor, called the police, but officers did not intervene because the defendant told the victim to be quiet and would not let the police enter.
The next day, the victim received treatment for her severe injuries at a hospital. The defendant coincidentally entered the same bus that the victim was riding to the hospital. She was "in shock" and did not protest his desire to accompany her. The victim and the defendant told various lies to medical personnel about someone else attacking the victim.
On October 5, 2011, the defendant called the victim and made violent threats. The victim recorded the conversation and played it for police, who arrested the defendant on outstanding warrants. The victim then obtained a restraining order.
A complaint was issued for one count of aggravated assault and battery. A jury found the defendant guilty.
After sentencing, the defendant pleaded guilty to a separate charge, under a different docket number, based on the threats that he made to the victim on October 5.
Discussion. The defendant argues that the portions of the victim's testimony concerning (1) his threats after the attack, (2) a restraining order, and (3) outstanding warrants were all impermissibly admitted in evidence.
The Commonwealth may not introduce evidence to show a defendant's bad character or propensity to commit the crime charged, but "such evidence may be admitted if relevant for some other purpose, and if the probative value of the evidence outweighs the risk of unfair prejudice." Commonwealth v. McCowen, 458 Mass. 461, 477-478 (2010). If an objection is not raised, appellate review is limited to examining whether an alleged error creates a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
Here, the parties discussed the expected testimony concerning the subsequent threats and restraining order, but not the warrants. At that time, the defendant did not object.
The only objection raised was to a paper copy of the order entering in evidence. No copy of the restraining order entered.
At trial, the defendant objected during testimony regarding the threats, but the objection was untimely and on the grounds of repetitiveness, not prejudice. The defendant did not object at trial to testimony on the restraining order or the warrants.
Defense counsel's objection to the victim's testimony on the subsequent threats was not timely because the victim answered twice before an objection was raised. Further, the record suggests that counsel objected only on the ground that the testimony was repetitive, not that it was prejudicial:
Q: "Did you report it to police?"
A: "Yes, I did. I . . . told them that Michael had just threatened me and told me that if I come home there would be issues . . . ."
Q: "You mentioned he had just threatened you, how did he threaten you?"
A: "He told me if I came home, that I had issues."
Q: "Were you -- did he call you, did he text you?" Defense counsel: "Objection. I think we've dealt with this before, Your Honor."
Testimony concerning the subsequent threats was relevant to demonstrate the victim's state of mind and a pattern of abusive behavior by the defendant. The testimony on the threats was not unfairly prejudicial, and the judge gave a limiting instruction. See Commonwealth v. McCowen, 458 Mass. at 478. The victim's testimony that she obtained a restraining order was also relevant to show her state of mind. The testimony was evidence of her fear of the defendant and helped explain her false statements to medical personnel because of her concern for her physical safety while the defendant was present with her. See id. at 477-478.
Lastly, the defendant did not object to the brief reference concerning the warrants. It is difficult to discern a substantial risk of a miscarriage of justice. Regardless, the defendant used the testimony by asking the victim about a warrant on cross-examination in the context of her delay in reporting the abuse.
The prosecutor inquired about the victim's trip to the police station:
Q: "And what happened at that point?"
A: "The police officers looked him up, found that he had outstanding warrants. I went there to apply for an emergency restraining order. When they seen that he had warrants, they said we'll go to the house. If he's there we'll take him on the warrants."
Q: "And did you go -- did you get an emergency restraining order?"
A: "No, because he lives at home and the police officers and detectives got there and they took him out of the house based on the warrants."
Q: "Okay and did you eventually get a restraining order?"
A: "Yes, the next day."
Finally, the judge instructed the jury during his final charge to determine the facts of the case fairly and impartially, and without prejudice or sympathy. The jury are presumed to follow these instructions. See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014).
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Judgment affirmed.
By the Court (Kantrowitz, Blake & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 29, 2015.