Opinion
No. 12–P–1520.
2013-07-12
COMMONWEALTH v. Richard PARRIS.
By the Court (MILKEY, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Richard Parris, was indicted on a charge of murder in the second degree, and was convicted of manslaughter. On appeal, he argues that the judge's evidentiary decisions constituted an abuse of discretion, and materially prejudiced him in the presentation of his defense. Discerning no error, we affirm.
Adjutant evidence. The defendant's conviction arose out of a fight with the victim, who had a history of violence. The fight occurred in 2008, approximately one week after the defendant slapped a woman with whom he had had a relationship, knocking out a tooth. At trial, the defendant claimed that the victim, outraged over the slapping incident, was the first aggressor, and that the defendant acted in self-defense. The judge permitted testimony regarding the victim's reputation for violence, as well as testimony that the victim was known to carry a knife. Witnesses testified that the victim said he was going to “get” the defendant. The defendant introduced the victim's 2005 convictions for assault and battery by means of a dangerous weapon and assault and battery by means of a dangerous weapon on a person over age sixty. The defendant also moved to introduce other instances of prior violent acts by the victim in accordance with Commonwealth v. Adjutant, 443 Mass. 649, 665–666 (2005). The judge permitted the defendant to introduce two instances of conduct occurring in 2003 and 2007; that is, that the victim (1) had broken into the home of his stepfather and slashed the hand of his stepfather with a knife, and (2) had made an unprovoked attack on an emergency room physician with a pair of scissors. The defendant takes issue with the judge's exclusion of three other previous instances of violence in which the victim beat or stabbed others in 2001, seven years before the incident resulting in trial.
The admission or exclusion of evidence pursuant to Adjutant is committed to the sound discretion of the trial judge. Id. at 663. In the exercise of this discretion, the judge may exclude evidence that is “marginally relevant,” and may “prevent the undue exploration of collateral issues.” Ibid. Here, the judge found that the incidents which she excluded were too remote in time. No abuse of discretion was committed.
There is no “bright-line test” for measuring remoteness. Commonwealth v. Helfant, 398 Mass. 214, 228 n. 13 (1986). “Temporal remoteness of the conduct is less significant where there is an ongoing and overlapping pattern of similar conduct.” Commonwealth v. Sharpe, 454 Mass. 135, 144 (2009). Here, one prior incident involved the victim's attack on a man who hit a young girl, an incident similar to the facts of this case. However, the remaining two incidents, although they involved either a beating or a stabbing, did not display any overlapping pattern of violence executed or targeted in a particular manner. That one or more previous incidents may have been marginally admissible does not mean that the judge committed an abuse of discretion in excluding them. Nor can we say that “no conscientious judge, acting intelligently, could honestly have taken the view expressed by [her].” Commonwealth v. Pring–Wilson, 448 Mass. 718, 736 (2007), quoting from Commonwealth v. Candelario, 446 Mass. 847, 858 (2006). See Commonwealth v. Bys, 370 Mass. 350, 361 (1976), quoting from Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920).
Both parties rely upon Helfant and other cases discussing the admissibility of evidence of a defendant's prior bad acts. Whether these cases are, in fact, directly applicable to the Adjutant analysis we do not decide here. See generally Commonwealth v. Morales, 464 Mass. 302, 309–310 & nn. 12, 13 (2013). Were they applicable, we cannot say that there was such a clear pattern as between the 2001 and later incidents as to mandate admission. See Commonwealth v. Helfant, 398 Mass. at 228 n. 13. Compare Commonwealth v. Sharpe, 454 Mass. at 143–144 (same pattern of escalating abuse over many years in immediately preceding relationship with another woman admissible as to pattern of conduct and motive); Commonwealth v. Hanlon, 44 Mass.App.Ct. 810, 819–820 (1998) (testimony of four altar boys regarding similar pattern of abuse properly admitted in trial for rape of altar boy).
In one of the three incidents involved, there was ambiguity as to who initiated the fight.
More importantly, there was significant evidence at trial regarding the victim's propensity for violence in the form of reputation evidence, the 2005 convictions, and the two incidents nearer in time to the events that formed the basis of the charges. “[G]iven the evidence of the specific acts of violence that was admitted, it is impossible to say that the judge did not permit the jury to hear about specific acts of violence by the victim[ ]. Certainly it was within [her] discretion to limit the admission of additional cumulative evidence on the subject. Commonwealth v. Woodward, 427 Mass. 659, 681 n. 36 (1998).” Commonwealth v. Clemente, 452 Mass. 295, 306 (2008), abrogated on other grounds by Commonwealth v. Zanetti, 454 Mass. 449 (2009). See Commonwealth v. Adjutant, 443 Mass. at 663 (admission of evidence that is “noncumulative and relevant”).
The defendant also claims that evidence that the victim engaged in “odd” behavior and was sent for psychiatric consultation should have been admitted. There is nothing in the offer of proof that suggests that the “odd” behavior was linked to violence in any way. This type of evidence, which does not itself constitute evidence of prior acts of violence, falls outside the scope of Adjutant. The judge's exclusion of this evidence on other grounds is not challenged on appeal. The judge declined to admit evidence of a psychiatric condition in the absence of a proffer of expert testimony linking the victim's mental state to the acts of violence at issue at trial.
Photo array. At trial, and over objection, the Commonwealth introduced a photograph of the defendant that was in a police database, which had been used in identifying and apprehending the defendant in Jamaica. On appeal, the defendant argues that the photograph was prejudicial because it clearly suggested that he was known to the police. The photograph was not a mug shot, had a plain background, and did not contain any specific link to law enforcement. Contrast Commonwealth v. Whitehead, 379 Mass. 640, 660 n. 24 (1980) (mug shot is a “classic fullface and profile type”). The judge instructed the jury before the photograph was admitted that the police had access to Registry of Motor Vehicles and other records, and that no adverse inference should be drawn from the fact that the police had access to the photograph. In view of the judge's clear and timely instruction, there was no error and no prejudice. See Commonwealth v. Montez, 450 Mass. 736, 746 (2008) (jury presumed to follow judge's instructions). Compare Commonwealth v. Martin, 447 Mass. 274, 286 (2006) (no suggestion mug shot “was taken in connection with an arrest rather than ... an application for a firearm, a taxicab license, or any other police business”; judge not required to give limiting instruction absent request).
Pregnancy. For the first time on appeal, the defendant argues that it was prejudicial for the judge to admit evidence that the woman was pregnant at the time that he hit her. The evidence was part and parcel of the events leading up to the fight, and was probative of the many reasons why the victim may have attacked the defendant. See Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010) (relevance and probative value of evidence is matter entrusted to trial judge). Cf. Commonwealth v. Stewart, 450 Mass. 25, 36–37 (2007) (evidence of defendant's threat relevant to show hostile state of mind and possible motive). Moreover, even if error, the admission of this evidence did not create a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). There is no claim on appeal that evidence that the defendant struck the woman in the face was inadmissible. The fact that the defendant did so was undisputed. In this context, and in view of the fact that no mention was made of the pregnancy by either party in closing arguments, the admission of this evidence did not create a substantial risk of a miscarriage of justice.
Judgment affirmed.