Opinion
No. 12–P–51.
2013-01-29
COMMONWEALTH v. Eddie RAY, Jr.
By the Court (BERRY, FECTEAU & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was convicted of violating an abuse prevention order, G.L. c. 209A, § 3( b ), punishable under G.L. c. 209A, § 7. On appeal, the defendant claims that the trial judge erred (1) in admitting testimony that the victim was suffering from cervical cancer, (2) in denying the defendant's motion to redact certain portions of the abuse prevention order, and (3) in allowing the defendant to appear before the jury at trial in identifiable prison attire. We affirm.
The evidence permitted the jury to find that, after an eight-year relationship between the victim, Bridgette Booker–Best, and the defendant, had “turned sour,” an abuse prevention order issued. Approximately two months thereafter, on September 9, 2010, the defendant, the victim, and her boyfriend, Calvin Clark, were present together in a court room for an unspecified matter. Following testimony by the victim that the defendant entered an elevator already occupied by herself, Clark, and “four or five other people,” she reported that the defendant said: “You and your rat boyfriend are going to get it. That's why you're a bloody pussy bitch. And you're a rat and you're a snitch and I'm going to get you all.” When the prosecutor subsequently asked the victim how she knew that the defendant was talking to her, defense counsel lodged an objection that was overruled. The victim replied that she was certain the defendant was talking to her because he was referring to her cervical cancer.
The defendant avers that evidence of the victim's cervical cancer had no probative value, and it prejudicially served to evoke a sympathetic reaction towards the victim. “[W]e rely on a trial judge to exercise discretion in admitting only relevant evidence whose probative value is not substantially outweighed by its prejudicial or cumulative nature.” Commonwealth v. Bonds, 445 Mass. 821, 831 (2006). We consider this claim of error under the familiar prejudicial error standard. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The Commonwealth was entitled to show how the victim knew that the defendant was directing his statements towards her, considering the crowded elevator. See Commonwealth v. Bradshaw, 385 Mass. 244, 269–270 (1982) (“The prosecution [is] entitled to present as full a picture as possible of the events surrounding the incident itself”). Moreover, the victim's explanation was relevant to demonstrate the abusive nature of his remarks. Although the defendant's comments indeed constituted a palpable threat, a full appreciation of the underlying context revealed an aggravated form of abuse not otherwise apparent from the face of the defendant's comments. As such, the judge did not abuse his discretion in allowing the testimony.
Additionally, the judge instructed the jury to “be completely fair and impartial ... not to be swayed by prejudice or by sympathy ...,” and we presume that the jury complied with these instructions. See Commonwealth v. Vallejo, 455 Mass. 72, 84 (2009).
Even if admitting the testimony was error, we discern no undue prejudice to the defendant. The contested testimony added little to the overwhelming evidence of a violation of the abuse prevention order in this case. Contrast, e.g., Commonwealth v. Santiago, 425 Mass. 491, 500–503 (1997). Here, the protective order, inter alia, ordered the defendant not to contact the victim and to stay at least 100 yards from her. Indeed, if the defendant stepped onto the elevator knowing the victim to occupy it, an inference made virtually inescapable by his words and actions thereafter outside the court house, he violated the order's stay away provision. Beyond the exchange in the court house elevator, after leaving the court house, the defendant approached the victim and Clark on the street from behind, while yelling obscenities. These facts are alone sufficient to conclude that the defendant violated the provisions of the order. See Commonwealth v. Stoltz, 73 Mass.App.Ct. 642, 644 (2009). Any error, therefore, cannot be said to have swayed the jury so as to warrant a reversal of the defendant's conviction. Cf. Commonwealth v. Johnson, 463 Mass. 95, 113–114 (2012).
The defendant also contends that the remaining alleged errors—namely, the judge's failure to redact certain portions of the protective order
and to ensure that the defendant properly waived his right to appear before the jury in civilian clothes—reinforced each other and compounded their prejudicial effect, thereby resulting in a substantial risk of a miscarriage of justice. We disagree.
The defendant's motions in limine to prevent admission of the order in its entirety, and alternatively requesting redaction of those portions of the order (1) requiring the defendant to surrender any firearms and firearm identification cards, and (2) stating that “there is a substantial likelihood of immediate danger of abuse” was denied. The unredacted order was nonetheless admitted without objection. Moreover, the judge gave a limiting instruction as requested by the defendant.
As to the defendant's contention regarding the protective order, the case of Commonwealth v. Foreman, 52 Mass.App.Ct. 510, 516 (2001), is instructive. In that case we rejected the proposition that certain portions of a protective order are “superfluous” where “a subsequent violation of the order [is] the crime being tried.” Indeed, here, the defendant's charge resulted from an alleged violation of the order. Thus, in this context, the order in its entirety “was critical.” Ibid. There existed no risk of a substantial miscarriage of justice from the introduction of the protective order.
Finally, the defendant's claim that he was denied his due process rights under Federal and State law because the judge allowed him to appear before the jury at trial in prison clothes is without merit. While an accused cannot be compelled to go to trial in prison or jail clothing, Estelle v. Williams, 425 U.S. 501, 512–513 (1976), the defendant does not claim that he was required to wear the prison clothing or that he ever requested alternative attire. See United States v. Pina, 844 F.2d 1, 7–8 (1st Cir.1988) (mistrial not required as defendant did not claim that he was required to wear prison clothes or that he requested different attire). Cf. Commonwealth v. LaCava, 438 Mass. 708, 723–724 (2003). Here, the defendant's reply that the shirt provided him did not fit comfortably is not tantamount to a request for alternative clothing. Hence, “the failure to make an objection ... to being tried in [prison] clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Estelle, supra.
Judgment affirmed.