Com. v. Butler

Decision Date20 December 2005
Citation839 N.E.2d 307,445 Mass. 568
PartiesCOMMONWEALTH v. Michael BUTLER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Amanda Lovell, Assistant District Attorney (Catherine N. Tucker, Assistant District Attorney, with her) for the Commonwealth.

Daniel F. de Abreu for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

GREANEY, J.

A District Court jury acquitted the defendant of one charge of assault and battery, but convicted him of a second charge of assault and battery and of a charge of disorderly conduct. The charges stemmed from three separate altercations that the defendant allegedly had with his girl friend, Carrie Jones. The defendant appealed. The Appeals Court affirmed the disorderly conduct conviction, but reversed the assault and battery conviction. Commonwealth v. Butler, 62 Mass.App.Ct. 836, 848-849, 821 N.E.2d 501 (2005). In reversing the latter conviction, the Appeals Court concluded that the defendant had been prejudiced by the admission of evidence of prior bad acts involving him and Jones.1 Id. at 837, 846-847, 821 N.E.2d 501. We granted the Commonwealth's application for further appellate review solely to decide whether the admission of the prior bad act evidence was proper. We affirm the defendant's assault and battery conviction.

The background of the case is as follows. The charges against the defendant concerned incidents that occurred with Jones on August 28, 2000 (an alleged altercation that left Jones with a swollen eye); November 1, 2000 (a disturbance involving Jones, while she was seated inside an automobile); and early April, 2001 (an alleged altercation that left Jones with several injuries). Jones periodically lived with the defendant at his apartment in the Dorchester section of Boston; the two had been in a relationship for approximately seven years.

Prior to trial, Jones refused to cooperate with the prosecution and recanted her accusations. Despite this development, the prosecutor concluded that, based on Jones's spontaneous utterances, a case could be proved on each of the three charges. To add support to the charges, the prosecutor filed a motion in limine seeking approval to introduce evidence of one subsequent bad act involving the defendant and Jones, evidence of a prior bad act involving the defendant and his stepdaughter, and evidence of six other prior bad acts involving the defendant and Jones. (As we shall explain shortly, there was no evidence at trial concerning several of these acts). The prosecutor indicated that, if testimony about these acts could not be obtained from Jones, she expected the evidence to come in through a police officer (or other person) to whom Jones had made spontaneous utterances shortly after each alleged act. The defendant objected to "all of the bad acts coming into evidence." The judge deferred a ruling until the appropriate time at trial and directed the prosecutor to refrain from mentioning the bad act evidence in her opening statement.

The case proceeded to trial, with Jones as the Commonwealth's first witness.2 She did not testify concerning the November 1, 2000, incident involving the defendant. With respect to the other two incidents that constituted the basis of the charges, Jones testified that she had lied to the police, the defendant had not hurt her in any way, and her injuries (which we shall describe below) had resulted from her own conduct (Jones said she had injured her lip while smoking crack cocaine from a "straight shooter,"3 had injured herself in a fight over drugs at a "base house,"4 and had lost two teeth while eating ribs).

The prosecutor turned to the prior bad act evidence. Recognizing that the examination of Jones had reached this stage, the judge, after conferring with counsel, gave the jury a limiting instruction about the purpose, and use, of the bad act evidence. The prosecutor then questioned Jones about (1) a black eye she had on June 18, 1998; (2) a protective order obtained by her on July 27, 1998, against the defendant; (3) a protective order obtained by her on September 10, 1998, against the defendant; (4) injuries she sustained in late August, 1998; (5) injuries she sustained in October, 1998; (6) whether she knew the defendant's stepdaughter; and (7) injuries she sustained in November, 2001. The defendant objected to some of this questioning. Jones admitted that she had obtained the July 27, 1998, protective order against the defendant, but claimed that that was the only protective order she had obtained. She denied talking to the defendant's stepdaughter. Jones gave no affirmative evidence about the other acts, stating, essentially, that she could not recall any injury or even having spoken with the police, or that she had injured herself while using alcohol or drugs. The July 27, 1998, protective order was admitted in evidence over objection; the September 10, 1998, protective order was admitted without objection.

There next followed testimony on the substance of the charges and as to one prior bad act of the defendant that had occurred on June 18, 1998. With respect to the August 28, 2000, incident, in proof of one assault and battery charge, Officer Lyndon Christian of the Boston police department testified that, on that date, he responded to a telephone call made from the defendant's apartment. When he arrived, Jones was being treated in an ambulance. Jones had a swollen eye and was upset and crying. She told Officer Christian that the defendant had punched her. (Her statement was admitted as a spontaneous utterance.)

Concerning the November 1, 2000, incident, in proof of the disorderly conduct charge, Officer Ricky Cooks of the Boston police department testified that, at approximately 11 P.M., he responded to a disturbance call in the vicinity of the defendant's apartment. When he arrived, he observed the defendant striking the windshield of an automobile. Jones was inside the automobile, and the defendant was yelling loudly at her.

With respect to the April, 2001, incident, in proof of the second assault and battery charge and the charge of assault and battery by means of a dangerous weapon (a lit cigarette), testimony was given by Sergeant Debra F. Jenkinson and Jones's daughter. The testimony consisted of spontaneous utterances made by Jones. Jones told the witnesses that the defendant had kept her in his apartment against her will; refused to give her the keys to an automobile; punched her in the mouth, knocking out two of her teeth; forced her to have sexual relations with him; and burned her genital area with a lit cigarette. Jones had a swollen and cut lip, was missing two teeth, and walked with a limp.

As to the June 18, 1998, bad act, the prosecutor presented the testimony of Officer Steve Horne, who stated that, on June 18, 1998, in response to a dispatch in the vicinity of the defendant's apartment, he saw Jones crying, and noticed that she had a swollen black eye as well as a laceration under her right eye. Officer Horne was not permitted to testify whether Jones had told him how her eye had been injured. He testified, however, that Jones informed him that she had been at the defendant's apartment just before the injury. Both before and after Officer Horne's testimony, the judge gave the jury another limiting instruction on the use of bad act evidence. The prosecutor offered no other witnesses, and no evidence, to develop the areas of inquiry concerning Jones's alleged injuries sustained in August, 1998; October, 1998; and November, 2001, that had been referenced as bad acts in the motion in limine.

The defendant did not testify. He called one witness, Officer Hubert Valmond, who testified that, on April 6, 2001, he responded to a telephone call from the defendant's apartment and there observed Jones, who showed no signs of injury. Jones told him that the defendant would have her arrested if she could not find the keys to his automobile.

Final arguments followed. The defendant's trial counsel argued that the jury should credit Jones's trial testimony — that she had lied to police and had not been hurt by the defendant — because she was the only eyewitness to the assaults and because Officer Valmond's testimony corroborated Jones's trial testimony. On her part, the prosecutor argued that Jones "had every reason to lie" at trial, particularly to protect her boy friend. She suggested that, based on Jones's demeanor, injuries, and other corroborative evidence, Jones's initial statements to police in August, 2000, and April, 2001, as described by the Commonwealth's witnesses, were truthful. With respect to the bad act evidence, the prosecutor stated the following:

"[N]ow, you've also heard about some other incidents other than these two assault and batteries and I've asked you to keep those in mind just for the very limited purpose of assessing the nature of the relationship between the defendant and [Jones]. Specifically, three things you heard about, two restraining orders and you're going to get [to] take these into the jury deliberation room with you and take a look at them. Two restraining orders that [Jones] obtained against the defendant and I suggest to you, that shows the nature of their relationship and his motive to do what he did. That wasn't an accident what he did to her. It was intentional what he did to her. And the third thing you heard about was also Officer Horne and he told you how he ... found [Jones] with a black eye ... right by the defendant's apartment. Again, that goes to the nature of the relationship, his motive to do what he did, the fact that he did this intentionally...."

In his final charge, the judge reminded the jury of the prior limiting instructions on the bad act evidence, and the judge repeated the substance of his earlier instructions.

As has been stated, the jury returned verdicts finding the defendant guilty of assault and battery in...

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