Opinion
11-P-1548
12-10-2012
COMMONWEALTH v. MARSHALL TAYLOR.
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
Following a jury trial in the District Court, the defendant was convicted of disorderly conduct, disturbing the peace, and threatening to commit a crime. On appeal, the defendant argues that the improper admission of 'bad acts' evidence created a substantial risk of a miscarriage of justice. We affirm.
The defendant's convictions related to an ongoing dispute with his next door neighbors regarding the property line between their houses. That dispute culminated in an altercation on June 5, 2010. The jury heard testimony that on that evening, the defendant accosted one of his neighbors, cursing at her and 'screaming and yelling . . . right in [her] face.' After carrying on in this fashion for several minutes, the defendant returned to his front steps, where his wife brought him a phone and a shotgun. The defendant loaded the gun, cocked it, and pointed it at his neighbors, stating that he was going to shoot one of them. Both the defendant and his neighbor called the police during the confrontation. The 911 calls were admitted in evidence, and the tape of the defendant's call captured his request for his wife to bring him a shotgun and his statement to the dispatcher that he was 'getting ready to shoot' someone. The Commonwealth also introduced evidence of three subsequent incidents between the defendant and his neighbors. All three occurred during the summer of 2010, and none included allegations of any criminal conduct by the defendant. The defendant now argues that this evidence was irrelevant to the charges against him and that it therefore should not have been admitted. Because the defendant did not object at the time the evidence was introduced, he must now demonstrate that its admission created a substantial risk of a miscarriage of justice. See Commonwealth v. Aviles, 461 Mass. 60, 72 (2011), citing Commonwealth v. McCoy, 456 Mass. 838, 850-852 (2010).
We discern no such risk. 'Evidence of a defendant's prior or subsequent bad acts is inadmissible to demonstrate bad character or propensity to commit the crime charged.' Commonwealth v. Hamilton, 459 Mass. 422, 437 (2011), quoting from Commonwealth v. Walker, 442 Mass. 185, 202 (2004). However, even if the relevance of the disputed evidence was doubtful, its prejudicial effect was not substantial. Rather, the 'bad acts' at issue essentially consisted of low-level annoyances visited by the defendant upon his neighbors. The Commonwealth's evidence was strong as to the elements of the three crimes of which the defendant was convicted. The bulk of the trial was properly focused on the events surrounding the evening of June 5. The prosecutor did not mention the subsequent bad acts in her closing argument, focusing instead on the consistency of the testimony offered by the Commonwealth's witnesses about the incident, and on the contrast between the defendant's trial testimony and his statement during his 911 call that he was 'getting ready to shoot' someone. Given that the jury heard the recording of that call several times, we perceive little risk that their evaluation of the witnesses' credibility was significantly affected by the evidence complained of. In sum, this is not one of those 'extraordinary' cases in which, after reviewing the claim of error, 'we are left with uncertainty that the defendant's guilt has been fairly adjudicated.' Commonwealth v. Olivo, 58 Mass. App. Ct. 368, 373 (2003), quoting from Commonwealth v. Chase, 433 Mass. 293, 299 (2001).
But see, e.g., Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003) (bad acts evidence 'relevant to show hostile nature of relationship between defendant and [victim]').
For example, one of the incidents involved an apparently unsubstantiated complaint made by the defendant to the board of health about his neighbors' trash cans.
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Judgments affirmed.
By the Court (Grasso, Vuono & Milkey, JJ.),