Finally, the defendant takes issue with the victim's testimony that she had no criminal record for the last fourteen years. "Ordinarily, 'evidence whose purpose is not to prove material facts but merely to bolster credibility generally may not be admitted unless and until there has been an attack on credibility.'" Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 58 (2009), quoting M.S. Brodin & M. Avery, Massachusetts Evidence § 6.24 (8th ed. 2007). Here, the defense counsel challenged the credibility of the victim in his opening, when he stated, "you will also see some glaring inconsistencies and irregularities in things that perhaps don't make a great deal of sense in light of her testimony."
"Because there was no objection to the prosecutor's opening statement, we review the defendant's claim only to ascertain whether any error created a substantial risk of a miscarriage of justice." Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 56 (2009).
Contrary to the defendant's claim, the judge properly admitted the prior bad acts to demonstrate the hostile nature of the relationship between the defendant and the victim. See Commonwealth v. Butler, 445 Mass. 568, 573-575 (2005) ; Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 54 (2009). The first trial resulted in a mistrial.
entity as the shooter by matching his movements to those of ... the shooter"); Commonwealth v. Holley, 476 Mass. 114, 127, 64 N.E.3d 1275 (2016) ("The lack of objection to this statement, the judge's earlier charge explaining that opening statements are not evidence, and the detailed expert testimony on random match statistics made the prosecutor's imprecise phrasing of the random match probability relatively inconsequential in the context of the entire trial"); Commonwealth v. Lally, 473 Mass. 693, 705-708, 46 N.E.3d 41 (2016) (prosecutor's assertion in opening statement regarding deoxyribonucleic acid [DNA] evidence was inconsistent with DNA evidence elicited at trial; reversal not required where "trial counsel did not object, the judge's instructions mitigated the errors, and the comments were not likely to influence the jury's conclusion where ... [the] case did not hinge on the DNA evidence" [citation omitted]). See Commonwealth v. Toro, 395 Mass. 354, 360, 480 N.E.2d 19 (1985) ; Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 56, 904 N.E.2d 442 (2009), citing Toro, supra. b. Closing argument.
Requiring a Commonwealth's witness to assert the privilege in front of the jury could result in severe prejudice to the Commonwealth's case. See Commonwealth v. Gagnon, 408 Mass. 185, 198, 557 N.E.2d 728 (1990), S.C., 430 Mass. 348, 718 N.E.2d 1254 (1999) (evidence that witness exercises his Fifth Amendment right "produce[s] no relevant evidence, while inviting the jury to engage in unwarranted and impermissible speculation"); Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 57-58, 904 N.E.2d 442 (2009) (permitting witness who refuses to testify to assert Fifth Amendment privilege before jury "presents the real possibility that jurors will speculate that the witness is guilty of the crime charged [or another crime] and that the defendant is not").Com. v. Viust, 995 N.E.2d 1133, 1137 (Mass. App. Ct. 2013); see also U.S. v. Branch, 537 F.3d 328, 342 (4th Cir. 2008) (internal citations omitted) (addressing alleged error where district court was aware that defense witness intended to invoke privilege against self-incrimination and concluding that "the district court's evidentiary ruling was not an abuse of discretion.
Requiring a Commonwealth's witness to assert the privilege in front of the jury could result in severe prejudice to the Commonwealth's case. See Commonwealth v. Gagnon, 408 Mass. 185, 198, 557 N.E.2d 728 (1990), S.C., 430 Mass. 348, 718 N.E.2d 1254 (1999) (evidence that witness exercises his Fifth Amendment right “produce[s] no relevant evidence, while inviting the jury to engage in unwarranted and impermissible speculation”); Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 57–58, 904 N.E.2d 442 (2009) (permitting witness who refuses to testify to assert Fifth Amendment privilege before jury “presents the real possibility that jurors will speculate that the witness is guilty of the crime charged [or another crime] and that the defendant is not”). Com. v. Viust, 84 Mass.App.Ct. 308, 995 N.E.2d 1133, 1137 (2013) ; see also U.S. v. Branch, 537 F.3d 328, 342 (4th Cir.2008) (internal citations omitted) (addressing alleged error where district court was aware that defense witness intended to invoke privilege against self-incrimination and concluding that “the district court's evidentiary ruling was not an abuse of discretion.
The judge limited the number of acts that could be introduced and also instructed the jury that the evidence was to be considered only for the limited purpose of considering the nature of the relationship between the victim and the defendant. See Commonwealth v. Ridge, 455 Mass. 307, 323 (2009) (no error in admitting evidence of prior bad acts where evidence was relevant to establish defendant's anger and judge gave limiting instruction); Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 54-55 (2009) (evidence of prior violence admissible to show hostile relationship was not unduly prejudicial even without limiting instruction). Judgment affirmed.
June 3, 2009. Reported below: 74 Mass. App. Ct. 49 (2009). Orders.
The plaintiff also maintains that these photographs should have been admitted to impeach the defendant. "[T]he decision to admit impeachment evidence rests in the broad discretion of the judge and will not be disturbed on appeal unless the exercise of that discretion constituted an abuse of discretion or palpable error of law." Commonwealthv.Oliveira, 74 Mass.App.Ct. 49, 52 (2009). "The trial judge has both the discretion and the responsibility to exclude irrelevant, cumulative, or repetitive evidence" (emphasis added).
Because the defendant did not object to the prosecutor's opening statement or closing argument, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 56 (2009). Judgments affirmed.