Opinion
11-P-1265
06-04-2012
COMMONWEALTH v. SUSAN KELLY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from her convictions of assault and battery by means of a dangerous weapon and assault and battery. On appeal, the defendant argues that the judge erroneously allowed the victim to testify (1) that the defendant knew that she had health problems, and (2) that she did not immediately call police because another individual had threatened her life. We affirm.
Background. On January 12, 2010, the defendant, the victim, and the victim's boyfriend, Ronny Green, were drinking together in an apartment shared by the victim and Mr. Green. The defendant and the victim began to argue about a romantic relationship between the defendant and Green. The argument turned physical when the defendant jumped on top of the victim and started hitting her head. The defendant then burned the victim with a lit cigarette and poured a drink over her head. The victim escaped to a neighbor's apartment and called the police approximately one hour later. At trial, the victim testified on direct examination that she was afraid to call the police because Green stated he would kill her if she put him and the defendant in jail. The defendant's objection to this testimony was overruled. The victim also testified that the defendant called her a 'disabled f***[]' while the attack was occurring. On recross-examination, defense counsel asked the victim: 'Do you have any physical disabilities that prevented you from pushing [the defendant] off you during these forty-five minutes?' The victim stated that she had health problems. On re-redirect, the victim testified that she had an aneurysm in the back of her head as a result of a 2009 stroke. She stated that she had spoken with the defendant about her health problems. The defendant's objection to this testimony was overruled.
Discussion. The defendant claims error in the judge's allowance of the victim's testimony that (1) the defendant knew that she had health problems, and (2) Green threatened her life. This testimony, according to the defendant, was irrelevant and prejudicial.
Testimony that Green threatened the victim's life was relevant to explaining the victim's delay in calling the police, and all of the testimony with which the defendant takes issue became relevant in light of the defendant's theory at trial that the attack was contrived. See Commonwealth v. Douglas, 354 Mass. 212, 225-226 (1968).
Relevant evidence may not be admissible, however, 'if its probative value is substantially outweighed by the danger of unfair prejudice.' Commonwealth v. Cheremond, 461 Mass. 397, 408 (2012), quoting from Mass.G.Evid. § 403 at 35 (2011). 'We review a judge's decision whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice under the abuse of discretion standard.' Commonwealth v. Bishop, 461 Mass. 586, 596 (2012).
There was no abuse of discretion in this case. The testimony was properly admitted to rebut the theory that the victim fabricated the attack out of jealousy of the defendant's relationship with Green. See Commonwealth v. Perkins, 450 Mass. 834, 844 (2008); Commonwealth v. Aviles, 461 Mass. 60, 69- 70 (2011). There was no risk of unfair prejudice by admitting the victim's statement that the defendant knew of her physical disabilities, as the jury had already heard that the defendant called the victim a 'disabled f***' during the attack. 1 Evidence which is 'cumulative of other evidence of the defendant's motive and intent' is not prejudicial because it 'would have had very slight effect on the jury's verdict.' Commonwealth v. Bruce, 61 Mass. App. Ct. 474, 482 (2004).
1 The defendant did not object to this testimony.
Judgments affirmed.
By the Court (Cypher, Hanlon & Carhart JJ.),