Opinion
11-P-1384
05-07-2012
COMMONWEALTH v. DARCI RIBEIRO.
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
On appeal from convictions of stalking, assault and battery by means of a dangerous weapon, and multiple counts of assault and battery, the defendant's sole appellate claim is that the trial judge abused her discretion in admitting evidence of prior incidents wherein the defendant physically abused the victim in their native Brazil three years earlier. We affirm for substantially the reasons set forth in the Commonwealth's brief at pages eighteen through twenty-eight.
The jury found the defendant not guilty on indictments alleging armed assault with intent to murder, attempted murder, and assault and battery by means of a dangerous weapon.
The judge did not abuse her discretion in concluding that the evidence in question bore upon the defendant's intent to cause the death of the victim, see Commonwealth v. Johnston, 63 Mass. App. Ct. 680, 684 (2005) (armed assault with intent to murder requires proof of intent to cause death of victim), and bore as well on his intent to place the victim in imminent fear of death or serious bodily harm, the serious alarm caused to the victim by the defendant's conduct, and the reasonableness of the victim's fear of him. See Commonwealth v. Julien, 59 Mass. App. Ct. 679, 684-685 (2003) (addressing elements of stalking). Nor do we discern 'palpable error' in the judge's determination that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice to the defendant. See Commonwealth v. Martinez, 43 Mass. App. Ct. 408, 412 (1997).
The ultimate verdict of not guilty of armed assault with intent to murder did not render the challenged evidence inadmissible or irrelevant, when offered, to prove the defendant's intention to cause the victim's death or serious bodily harm.
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There is no merit to the defendant's claim that the judge should have permitted only summary description of the defendant's prior bad acts, as the Commonwealth was entitled to place the entire relationship of the parties in context for the jury. See Commonwealth v. Melton, 77 Mass. App. Ct. 552, 553 n.2, 558-559 (2010). The judge exercised a thoughtful discretion, carefully limiting the number of instances of prior abuse and refusing to permit the Commonwealth to elicit acts of violence directed towards the victim's son.
Likewise, there is no merit to the claim that the acts were too remote in time. The prior acts were inextricably intertwined with the charged conduct, placed the relationship of the parties in context for the jury, and rebutted the defendant's chosen defense. See Commonwealth v. Butler, 445 Mass. 568, 575-576 (2005) (prior bad acts probative of nature of relationship between defendant and victim and explained what would other appear inexplicable conduct). See Commonwealth v. Melton, supra at 558-559. The defendant denied that he ever harmed the victim while in Brazil, claimed that they were on good terms and still involved in a romantic relationship when he left, and asserted that the victim began stabbing him out of the blue and inflicted wounds upon him.
The judge specifically instructed the jury upon the limited use to be made of the challenged evidence both at the time of its introduction and at the close of the evidence. We presume that the jury follow the judge's instruction. See Commonwealth v. Degro, 432 Mass. 319, 328 (2000). Indeed, the verdict of not guilty upon the indictments alleging armed assault with intent to murder suggests that the jury were not swept beyond a fair and calm consideration of the evidence. See Commonwealth v. Butler, supra at 576; Commonwealth v. Reid, 73 Mass. App. Ct. 423, 433 (2008).
Judgments affirmed.
By the Court (Grasso, Berry & Wolohojian, JJ.),