Opinion
21-P-868
11-10-2022
COMMONWEALTH v. FEDERICO TORRES.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of kidnapping, malicious damage to a motor vehicle, assault and battery on a family or household member, assault and battery, and two charges of assault and battery on a pregnant victim.
The jury acquitted the defendant of witness intimidation and strangulation or suffocation.
On appeal the defendant argues that the trial judge "threatened" to admit prior bad act evidence if the defendant testified on his own behalf, causing him not to testify and thereby depriving him of a fair trial. The defendant also challenges the admission of testimony that he told the victim to get an abortion. We affirm.
1. "Threatened" admission of prior bad acts. Just before the defendant was to take the stand, the prosecutor informed the judge that, "depend[ing] a lot on how [the defendant] testifies, as well as what he says on cross examination, . . . the Commonwealth may at some point seek to elicit information related to . . . other bad acts" -- namely, evidence that the defendant "was violently abusive" to two other women "under very similar circumstances that he was abusive to [the victim]." When the judge asked the prosecutor at sidebar to explain how the defendant might open the door to admission of those other bad acts, the following exchange ensued:
The prosecutor: "So I anticipate the Commonwealth will ask the [d]efendant questions about his view of women in general, his respect of women in general. If he were to say that he respects women, I think the Commonwealth would be perfectly entitled to impeach him related to his ill treatment of the other women, including asking him questions about it. The Commonwealth has one of the prior girlfriends on call to come to court and testify to the [d]efendant's abuse of her as well if he testifies untruthfully about those things.
"I also intend to potentially ask the [d]efendant questions about his animosity towards [the victim] and . . . I believe what he's going to testify is his belief that [the victim] is the problem and has led to his problems with the police. If he does that, I think that will perfectly open the door to us calling other women or eliciting testimony from him about those subject matters involving other women."
The judge: (addressing defense counsel): "The issue . . . is that these other bad acts are not admissible . . . for the fact that they were committed but to show a state of mind, a pattern of conduct or some other -- lack of mistake, lack of accident. So I believe, based on what [the prosecutor] is telling me, that your client is going to expose himself to a parade of bad information. Is he aware of that?"
". . .
Defense counsel: "He is not aware of the Court's position on it. I have discussed what he would answer to questions about other relationships with him."
At this point the judge called a recess so that defense counsel could confer with the defendant. Immediately after the recess, defense counsel informed the judge that the defendant was exercising his right not to testify and further stated, "I object to the Court's position on this, and I think it has a chilling effect on my client's rights." This led to the following exchange:
The judge: "I am not taking a position on anything. I have told you at sidebar that I will apply the law. And I don't know what anybody's testimony is going to be, so it's [a] completely hypothetical situation but I will --"
Defense counsel: "Agreed, Your Honor." The judge: "-- as I always do, apply what I understand the law to be. So to that extent, I hope that that was conveyed to your client."
The judge proceeded to conduct a colloquy with the defendant during which she asked, among other things, whether the defendant understood that he had the absolute right to testify, whether he had discussed this with defense counsel, and whether defense counsel had explained to him all of his options.
The defendant responded affirmatively to these questions. When the judge offered to give the defendant more time to discuss the issue with defense counsel, the defendant declined. When defense counsel then asked whether the defendant was "sure about the decision" not to testify, the defendant responded affirmatively.
Now on direct appeal, the defendant argues that he is entitled to a new trial because he decided not to testify based solely on the judge's erroneous "ruling" regarding the admissibility of the prior bad acts. But the judge did not make any such ruling. Rather, she stated that her resolution of the issue would depend on how the defendant testified and that, if he opened the door, the prior bad acts would be admissible to show a state of mind, pattern of conduct, or lack of mistake or accident. This was correct as a general statement of law. See Commonwealth v. Philbrook, 475 Mass. 20, 25-26 (2016). For instance, had the defendant testified that the victim was "the problem," as the prosecutor anticipated he would, the prior bad acts might have been admissible to show lack of mistake or accident or for some other nonpropensity purpose. See Philbrook, supra at 26-27; Commonwealth v. Howard, 469 Mass. 721, 739-740 (2014); Commonwealth v. Gallison, 383 Mass. 659, 672-673 (1981). On the other hand, we agree with the defendant that the prior bad acts could not have been admitted solely to show that he does not respect women, as this would have amounted to improper character evidence. See Commonwealth v. Podkowka, 445 Mass. 692, 696 (2006).
While the defendant suggests that his decision not to testify was based on his belief that the judge would have admitted the prior bad acts to show the defendant's state of mind "towards the women he dates in general," the record before us does not support his suggestion. There is no evidence regarding how defense counsel interpreted the judge's statements, what defense counsel told the defendant during the recess, or what led the defendant to decide not to testify. Thus, the present record does not entitle the defendant to a new trial. We do not preclude the defendant from raising his claim, however framed, through a motion for a new trial, although we express no view on the merits of any such claim.
2. Testimony about abortion. When the prosecutor asked the victim to describe the defendant's reaction when she told him she was pregnant, the victim replied, "[G]et rid of it." The defendant argues that this testimony was inadmissible prior bad act evidence. Because the defendant preserved an objection, our review is for prejudicial error. See Commonwealth v. Cole, 473 Mass. 317, 321 (2015).
We see neither error nor prejudice. Even assuming the testimony is properly characterized as prior bad act evidence, it was relevant to show the hostile nature of the relationship between the victim and the defendant. See Commonwealth v. Butler, 445 Mass. 568, 575 (2005). In addition, the testimony was brief and not particularly inflammatory, and the Commonwealth did not mention it in closing argument. That the jury acquitted the defendant of two charges is also some indication that he was not prejudiced. See Commonwealth v. Hampton, 91 Mass.App.Ct. 852, 855 (2017).
Judgments affirmed.
The panelists are listed in order of seniority.