Opinion
No. 12–P–32.
2013-04-10
COMMONWEALTH v. Luis SALAZAR.
By the Court (GREEN, HANLON & AGNES, J.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions on various charges, including stalking in violation of a restraining order, assault and battery, and intimidation of a witness, the defendant contends that (i) the evidence was insufficient to support his conviction on the charge of stalking in violation of a restraining order under G.L. c. 265, § 43, (ii) the trial judge erred in admitting testimony that the defendant was angry and aggressive toward the victim during an earlier period, and (iii) the prosecutor engaged in improper argument during her closing. We discern no cause to disturb the judgments and affirm, addressing the defendant's claims in turn.
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1970), the evidence at trial was sufficient to establish that the defendant “(i) willfully and maliciously engage[d] in a knowing pattern Of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) ma[d]e a threat with the intent to place the person in imminent fear of death or bodily injury,” all while subject to a restraining order. G.L. c. 265, § 43, as amended by St.1997, c. 238, § 1.
The defendant's argument that the evidence did not include any direct evidence of an overt expression of a threat is unavailing; “language properly may be understood and treated as a threat even in the absence of an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.” Commonwealth v. Pagels, 69 Mass.App.Ct. 607, 613 (2007), quoting from Commonwealth v. Chou, 433 Mass. 229, 234 (2001). As in “a case of simple criminal assault, the Commonwealth need not prove that the defendant actually intended to harm the victim.” Commonwealth v. Matsos, 421 Mass. 391, 395 (1995).
On March 10, 2009, the defendant saw the victim outside her house and “was calling to” her. She “ran into the house and locked the door.” The defendant followed; the victim testified that “by the time I got to my kitchen, he was ringing the bell.” The defendant “just kept on saying to drop the restraining order.” She testified that she “started feeling threatened ... where he was always at [her] door.” “[H]e knew he wasn't supposed to be around [her]. And he was ignoring it and showed no regard. He said he had nothing to lose during this thing.” She testified, “I took that as yeah, that he had nothing to lose then I was going to get hurt again.” Three days earlier, at 11:00 P.M., the victim discovered that the defendant had come into her home while she slept. In addition, on March 11, 2009, the defendant told the victim in the supermarket “that he just did a bad thing. That he broke into the house with a knife,” expecting to find her alone. The jury were entitled to consider those events in the context of the defendant's request to the couple's son to keep secret the fact he had obtained keys to the house and, perhaps of greatest significance, his action several days earlier in breaking into the house, armed with a knife, where he proceeded immediately to the victim's bedroom.
2. Testimony that the defendant was previously angry and aggressive toward the victim. As the defendant acknowledges, though evidence of prior bad acts generally is inadmissible to show bad character or propensity, such evidence may be admitted to show motive, intent, pattern of conduct, or the existence of a hostile relationship between the parties. See, e.g., Commonwealth v. Linton, 456 Mass. 534, 551 (2010). Accordingly, the victim in the present case was permitted to testify that her relationship with the defendant “wasn't good” in 2002, that the couple were “having a lot of problems in the marriage,” and that “[h]e was showing a lot of aggression at that time.” On appeal, the defendant complains that such general characterizations were at odds with the judge's ruling on the Commonwealth's motion in limine concerning an episode of assault and battery committed by the defendant against the victim in 2002.
To the contrary, as the Commonwealth observes, it was within the trial judge's discretion to rule on particular evidence as it was offered during the trial, despite the general parameters outlined in his ruling on the motion in limine. See Commonwealth v. Haskell, 438 Mass. 790, 792 (2003). Moreover, insofar as each of the victim's general characterizations was clarified by reference to specific illustrations of conduct on which it was based, there was no abuse of discretion in allowing the testimony to furnish context for the relationship between the parties, as relevant to the defendant's subsequent threats toward the victim.
The defendant does not appear to challenge admission of the victim's testimony concerning the details of the 2002 assault.
3. Closing argument. Finally, we discern no impropriety, and therefore no substantial risk of a miscarriage of justice, in the prosecutor's closing argument. As explained in the Commonwealth's brief at pages thirty-two to thirty-four, the prosecutor supported her general statements concerning the Commonwealth's theory of the case by reference to specific elements of evidence introduced at trial. The prosecutor's reference to the victim's statements recorded in certain medical records was proper, since the medical records were admitted in evidence, without objection or redaction.
In any event, the victim's statements would have been admissible over a hearsay objection, had the defendant objected at trial, as prior consistent statements offered to rebut a claim of recent fabrication. See Commonwealth v. Gaudette, 441 Mass. 762, 769 (2004).
Judgments affirmed.