Opinion
11-P-117
03-07-2012
COMMONWEALTH v. JIMMY MALDONADO.
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
Having been convicted by a District Court jury of assault by means of a dangerous weapon in violation of G. L. c. 265, § 15B(b), the defendant now appeals. We affirm.
Discussion. 1. The defendant claims that the judge erred in admitting irrelevant evidence. Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989). The first piece of evidence that the defendant claims was irrelevant was the victim's description of the bar as a 'drug bar' that has been 'cleaned . . . up' due to the hard work of the employees and a newly implemented 'zero tolerance' policy. During trial, counsel raised no objection to the victim's statement, and we thus review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686 (2002).
A jury could have found that on January 3, 2009, an assault occurred outside of Flan O'Brien's Pub (the pub) in Boston. On that night, Braden Armstrong (the victim) was working as a bartender at the pub. Around 1:00 A. M., he was approached by the bar's doorman, and as a result walked outside to the front of the bar. Once outside, the victim observed the defendant, a friend of the defendant, and a few customers of the bar. A conversation ensued between the victim and the defendant's friend, during which the defendant's friend became agitated and aggressive, prompting the victim to tell the defendant and his friend to leave, or the police would be summoned. As the argument grew more heated, the victim noticed that the defendant was holding a knife in his right hand next to his leg, and was looking directly at the victim in a threatening manner. Upon seeing the knife, the victim went back inside the bar, locked the door, refused to let any customers exit the bar, and called the police. The defendant and his friend remained outside the bar, looking in the window and yelling at the victim. When the police arrived about fifteen minutes later, the defendant and his friend began walking up Tremont Street, away from the bar. The two police officers who responded to the scene caught up to the defendant and his friend a short distance later, where the defendant volunteered that he was in possession of a knife. Boston police removed a folding knife with a blade of approximately three and one-half inches from the defendant's possession.
The statement regarding the history of the bar was properly admitted because the prosecution is 'entitled to present as full a picture as possible of the events surrounding the incident itself.' Commonwealth v. Maldonado, 429 Mass. 502, 505 (1999), quoting from Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982). The comments about the bar's history did not reference the defendant in any way, and were relevant to the victim's credibility by showing that he had dealt with previous confrontations and had experience with individuals who may or may not be dealing drugs outside of the bar. Therefore, there was no error in admitting the statements into evidence, let alone a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297- 298 (2002). Additionally, 'the absence of an objection from experienced defense counsel suggests there was nothing really unfairly prejudicial about the comment.' Commonwealth v. Williams, 450 Mass. 894, 906-907 (2008). Finally, even if it were error, considering the strength of the other evidence, we conclude the statement did not have a material effect on the jury's verdict. The victim identified the defendant with one hundred percent certainty as the man who brandished the knife in a threatening manner while looking at the victim 'dead in the face.' Fifteen to twenty minutes later, the defendant was stopped nearby in possession of a knife. Allowing the statement about the bar's past did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, supra.
2. The defendant claims that it was an abuse of discretion for the judge to allow statements by the victim about having previously seen the defendant outside the bar and believing the defendant was soliciting drug customers. 'Although evidence of other criminal behavior may not be admitted to prove the propensity of the accused to commit the indicted offense . . . it is admissible for other relevant probative purposes. These other purposes include showing the defendant's motive or state of mind.' Commonwealth v. Wilson, 427 Mass. 336, 349 (1998) (internal citations omitted). Here, the fact that the victim had seen the defendant on multiple occasions outside the bar is relevant to the credibility of the victim's identification of the defendant, and his belief that he was interrupting a drug deal shows a motive for the assault. The balancing by the judge of probative value and prejudice did not rest on whimsy or caprice, and does not constitute an abuse of discretion. See Commonwealth v. Maldonado, 429 Mass. at 504.
We also note that the contested testimony was given during redirect examination, after defense counsel suggested that the victim had an improper racial motive when initially telling the defendant that he must leave the premises. 'A witness may properly explain on redirect examination [his] testimony elicited on cross-examination.' Commonwealth v. Mendes, 441 Mass. 459, 469 (2004). In order to refute the inference that the victim was motivated by racial animus when asking the defendant to move along, he properly explained that he perceived the defendant to be selling drugs.
Finally, the judge's clear and extensive limiting instructions to the jury, including one given immediately after redirect of the victim, negated any risk of prejudice to the defendant, compare Commonwealth v. Keniston, 423 Mass. 304, 310-311 (1996), and we must presume that the jury followed them. Commonwealth v. Foster, 411 Mass. 762, 766 (1992). Both of the instructions clearly explained to the jury the purposes for which the evidence could and could not be considered and reiterated that the only crime alleged was assault by means of a dangerous weapon. The instructions were sufficient to negate any unfair prejudice. See Commonwealth v. Wallace, 45 Mass. App. Ct. 930, 931 (1998).
3. The defendant claims that the judge abused her discretion and improperly denied him an opportunity to elicit evidence of racial and ethnic animosity of the victim, therefore prohibiting the defendant from presenting an effective defense. 'Appeals to racial, religious, or ethnic prejudices are especially incompatible with the concept of a fair trial because of the likelihood that such references will sweep jurors beyond a fair and calm consideration of the evidence.' Commonwealth v. Phoenix, 409 Mass. 408, 425 (1991) (internal quotation marks and citations omitted). The defendant does not point to any evidence in the record as proof of this racial animosity, and has not provided a postconviction motion outlining any information that may give credence to his claim. He has not established on the record a good faith basis for asking the questions about racial animosity. Ibid.
Judgment affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),