Opinion
14-P-640
05-07-2015
COMMONWEALTH v. JASON J. MOORE.
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
After a jury trial on a three-count complaint alleging assault and battery in violation of G. L. c. 265, § 13A(a), threat to commit a crime in violation of G. L. c. 275, § 2, and aggravated assault and battery in violation of G. L. c. 265, § 13A(b), the defendant was convicted of two counts of simple assault and battery. On appeal he argues that (1) one of two 911 calls was erroneously admitted in evidence as an excited utterance, and (2) the victim's testimony concerning her prior allegations that the defendant abused her was improperly admitted and, without a limiting instruction, created a substantial risk of a miscarriage of justice. We affirm.
The complaint originally charged assault with intent to murder in violation of G. L. c. 265, § 15, but was amended pretrial to aggravated assault and battery. The trial judge entered a required finding of not guilty with respect to the aggravation element, allowing the jury to consider only the lesser included offense of simple assault and battery.
The 911 calls. The defendant asserts that the trial judge committed error by failing to personally listen to the 911 calls before allowing the Commonwealth to introduce them in evidence. See Commonwealth v. Carey, 463 Mass. 378, 390-391 (2012). He further contends that the judge failed to exercise any discretion in determining to admit the calls, which, he continues, is a per se abuse of discretion. See, e.g., Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 259 n.10 (2002). Accordingly, he concludes, our review should be limited to whether the admission of the first 911 call, which he argues did not qualify as an excited utterance, resulted in prejudice.
"[A] judge must engage in a careful and reasoned assessment of any evidence proffered by the government that a criminal defendant contests." Carey, 463 Mass. at 390. In this case, however, the defendant did not appear to contest the admission of the 911 calls. Prior to trial, the Commonwealth twice alerted the judge that it had a motion in limine to introduce two 911 calls as excited utterances. The defendant did not raise any objection on either occasion. Before making her opening statement, the prosecutor once again raised the issue of the 911 calls, asking the judge if she might refer to them in her remarks. The judge gave permission, and defense counsel did not object. Based on defense counsel's silence prior to trial, the judge could have reasonably concluded that the defendant did not intend to object to the calls.
Nonetheless, the better practice certainly would have been for the trial judge to listen to the recordings of the 911 calls before admitting them in evidence.
When the defendant finally did object, the judge allowed the 911 calls in evidence. We conclude that the judge did exercise, and did not abuse, her discretion. If the defendant did indeed object to the first 911 call on the ground that it was not an excited utterance -- the discussion of his objection is largely inaudible -- the judge's decision to admit the recording, after hearing it played at trial, implies her conclusion that the call qualified as an excited utterance. Commonwealth v. Beatrice, 460 Mass. 255, 258 n.5 (2011).
"The underlying exciting event may be proved by the excited utterance itself." Commonwealth v. King, 436 Mass. 252, 255 (2002). In the call, the victim told the dispatcher, "My kids' father just abused me." She reported that he had gone downstairs, that "[h]e choked me and I have some bruises on my body and he threatened to kill me with a knife," and that he had a knife, but she did not know where it was. When asked whether she was injured, she responded that she was "just a little shaken up." Although the victim was not hysterical, crying, or screaming, she made these statements "under the influence of [the] exciting event," id. at 254, and the judge did not abuse her broad discretion in admitting the call. See id. at 254-255; Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008). Moreover, the acquittal of the defendant on the threats charge indicates that the jury were not prejudiced by the call's admission.
Evidence of past abuse. The Commonwealth was permitted to introduce, over the defendant's objection, limited evidence of the prior relationship between the victim and the defendant: the statement, "He's done this before. He's on probation for it" in the victim's 911 call; the victim's testimony that she had twice obtained restraining orders against the defendant; and her testimony that she had on one prior occasion "made allegations" to the police that the defendant had abused her by putting his hands on her and leaving marks around her neck.
This evidence was admissible, within the judge's discretion, to demonstrate the nature of the relationship. Commonwealth v. Robertson, 408 Mass. 747, 750-751 (1990). Commonwealth v. Cheremond, 461 Mass. 397, 410 (2012). The victim's statement in court that she had previously "made allegations" to the police was not hearsay. It was not introduced to prove an out-of-court declaration that the defendant previously choked the victim; rather, the proposition to be proved was the fact that the victim had "made allegations" in the past, which went to the nature of the relationship.
During pretrial discussions, the trial judge prohibited the Commonwealth from referring to two prior criminal cases, at least one resulting in a conviction, in which the defendant had abused and choked the same victim. The judge was concerned that the jury might improperly consider the prior, seemingly identical, conduct as propensity evidence. However, the judge further ruled that some evidence of the prior incidents should be admitted so the case would not "go forward in [a] vacuum," and to prevent the jury from being "misled into believing that this is an isolated incident."
Defense counsel did not request a limiting instruction to prevent the jury from improperly considering this testimony as evidence of criminal propensity, nor did he object to the judge's failure to give a limiting instruction. The absence of a limiting instruction did not create a substantial risk of a miscarriage of justice. Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 55 (2009). The testimony regarding the prior allegations of abuse was brief, and the prosecutor did not dwell on or improperly refer to it in summation. Moreover, the downstairs neighbor corroborated the 911 calls by testifying that she saw the defendant get on top of the victim, threaten her with a knife, and say he was going to "f'ing kill [her]." Both the neighbor and the responding police officer described bruising on the victim's neck. It is unlikely that the jury convicted the defendant on the basis of the prior allegations, as opposed to the evidence of the crimes presented at trial.
Judgments affirmed.
By the Court (Kantrowitz, Blake & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 7, 2015.