445 Mass. 568 (2005), SJC-09551, Commonwealth v. Butler
|Citation:||445 Mass. 568, 839 N.E.2d 307|
|Party Name:||COMMONWEALTH v. MICHAEL BUTLER.|
|Case Date:||December 20, 2005|
|Court:||Supreme Judicial Court of Massachusetts|
Heard: November 7, 2005.
COMPLAINT received and sworn to in the West Roxbury Division of the District Court Department on September 1, 2000. The case was tried before Robert C. Rufo, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Amanda Lovell, Assistant District Attorney (Catherine N. Tucker, Assistant District Attorney, with her) for the Commonwealth.
Daniel F. de Abreu for the defendant.
Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ.
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 (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.
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
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 connection with the August 28, 2000, incident; and guilty of disorderly conduct in connection with the November 1, 2000, incident. The jury found the defendant not guilty of assault and battery in connection with the April, 2001, incident.
1. The defendant argues error in the admission of the bad act evidence, contending that the evidence was irrelevant and that the Commonwealth did not identify any permissible basis for its admission, and that (assuming a basis for admission), the probative value of the evidence was substantially outweighed by its undue prejudice. There was no error.
a. The defendant maintains that, by asking questions of Jones concerning other bad acts, the prosecutor put additional bad act evidence before the jury apart from the two protective orders and the black eye Jones suffered on June 18, 1998. The prosecutor, as described in her pretrial motion in limine, had expected to offer proof of several other bad acts by the defendant against Jones. The prosecutor's questioning of Jones and Jones's negative answers and lack of memory in response, did not constitute substantive evidence of other bad acts. The judge instructed the jury that questions posed by counsel are not evidence. Jones did not implicate the defendant in inflicting other injuries on her, and the prosecutor offered no evidence to substantiate Jones's alleged injuries in August, 1998; October, 1998; and November, 2001. The prosecutor realized this, and, in her closing argument, was careful to refer only to the two protective orders and to Jones's black eye of June 18, 1998; matters that constituted the only bad act evidence before the jury. There is therefore, no evidentiary basis to support the defendant's current argument and for want of such a basis the argument fails.
b. We reject the defendant's assertion that the prior bad acts evidence was irrelevant and "thrown into the mix to simply
poison the jury against [the defendant]." "It is well settled that the prosecution may not introduce evidence of a defendant's prior or subsequent bad acts for the purpose of demonstrating bad character or propensity to commit the crime[s] charged." Commonwealth v. Barrett, 418 Mass. 788, 793 (1994), and cases cited. Such evidence, however, "is admissible for other relevant probative purposes." Commonwealth v. Cordle, 404 Mass. 733, 744 (1989), S. C., 412 Mass. 172 (1992). We have recognized a range of permissible relevant purposes, including, "to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive." Commonwealth v. Barrett, supra at 794. "To be sufficiently probative the evidence must be connected with the facts of the case [and] not be too remote in time." Id. The judge must also find that the probative value of the evidence in question "is outweighed by a risk of undue prejudice to the defendant." Id.
The Commonwealth has not been consistent, or clear, throughout in offering a basis for the admission of the bad act evidence. The Commonwealth's uncertainty may be attributed to the fact that our cases deal differently with the issue, characterizing permissible purposes in various ways, including in terms of motive or intent.
will largely depend on the circumstances of each case, and admissibility is properly left to the sound discretion of the trial judge.
The prior bad act evidence here could not be admitted to show a pattern or course of conduct by the defendant, see Commonwealth v. Gallison, 383 Mass. 659, 672-673 (1981); to prove the identity of the defendant as Jones's assailant, see Commonwealth v. Jackson, 417 Mass. 830, 836 (1994); or to prove that the defendant acted intentionally (and not accidentally).
(protective order may be admissible to show status of marital relationship). The evidence furnished by Officer Horne, to the effect that the defendant had given Jones a black eye on June 18, 1998, was relevant further to show that her relationship with the defendant had been violent. See Commonwealth v. Bianchi, 435 Mass. 316, 322 (2001) (explaining that victim's statements to sister-in-law concerning what victim said about prior assault by defendant was relevant to show hostile nature of victim's relationship with defendant). The bad act evidence, taken as a whole, demonstrated continuing animosity on the defendant's part toward Jones. Without the evidence, the jury would have had difficulty in understanding why Jones was testifying that the defendant had not harmed her or behaved criminally. The jury were entitled to consider evidence that depicted the hostile relationship between Jones and the defendant and helped to explain her recantation, so that they could adequately assess her credibility, a central issue at trial.
With relevance established, we are left with a case where the judge could properly determine that any possible prejudice from the bad act evidence did not outweigh its probative value, and with the jury's consideration of the evidence confined by repeated limiting instructions,
2. The defendant's conviction of assault and battery is affirmed.
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