Commonwealth v. Julien

• Decision Date: 17 October 2003
• Docket Number: No. 02-P-444.,02-P-444.
• Citation: 797 NE 2d 470,59 Mass. App. Ct. 679
• Parties: COMMONWEALTH v. SPENCER JULIEN.
• Court: Appeals Court of Massachusetts

59 Mass. App. Ct. 679

797 NE 2d 470

COMMONWEALTH v. SPENCER JULIEN.

No. 02-P-444.

Appeals Court of Massachusetts, Suffolk.

May 15, 2003.

October 17, 2003.

Present: GRASSO, McHUGH, & MILLS, JJ.

Joseph S. Berman for the defendant.

Amanda L. Lovell, Assistant District Attorney, for the Commonwealth.

MILLS, J.

After a jury trial, the defendant was found guilty of arson, G. L. c. 266, § 1; stalking, G. L. c. 265, § 43(a); threats, G. L. c. 275, § 2; and thirteen counts¹ of assault with intent to commit murder, G. L. c. 265, § 15. On appeal, he claims the judge erred in (1) denying a motion to strike the arson expert's testimony; (2) denying a motion for a required finding of not guilty on the arson charge; (3) denying a similar motion on the stalking charge; (4) failing to give a specific unanimity instruction on the stalking charge; (5) admitting prior bad act testimony; (6) admitting various hearsay statements; and (7) making improper comments in final instructions. We affirm.

Factual background. While on routine patrol in the early hours of March 15, 1999, Boston police Officers Richard Fitzpatrick and Joseph Tse observed a small fire on the front porch of a residential property at 347 Bowdoin Street in the Dorchester ter neighborhood of Boston (the property). They observed a black male with a black knit cap, three-quarter length olive jacket, and black pants walking out of the property. After the officers yelled, the individual fled and the officers were unable to catch him.

At trial, Officer Fitzpatrick testified that a resident of the property, Robin Peebles, who lived there with her three children, identified her boyfriend, the defendant, as having started the fire.² Peebles herself testified, without objection, that she was first alerted to the fire on being awakened by her brother's screaming, "Spencer done burnt the house," and that after speaking with the police, she called her friend, Robin Nichols, and told her that "Spencer had burnt the house."

Peebles also testified about several incidents involving threatening and violent behavior by the defendant toward her³ as follows: (1) in November, 1994, the defendant "smacked" a bottle in her teeth, breaking two of them; (2) the defendant beat her on her legs and stomach with a baseball bat a couple of weeks before the birth of her son on June 1, 1996; (3) on August 11, 1996, wearing boots, the defendant kicked her in the vagina, resulting in her hospitalization for a week and requiring two surgeries; (4) approximately one month later, the defendant, wearing the same boots, kicked her in the forehead, causing a gash and a subsequent scar; (5) on or about December 6, 1997, while she was visiting a friend, the defendant grabbed Peebles, threw her on a couch, and cut her on the neck and shoulder with a razor; and (6) approximately one week later, the defendant again cut her, this time on her arm.

Peebles testified that, on Saturday, March 13, 1999, the night before the fire, the defendant pushed in through the back door of her apartment, hitting her in the chest with the door as he did so, and told her he was going to kill her and her daughter, Nikita. She was afraid of the defendant. Sometime after he left her apartment, the defendant called her and said "he should burn the house down."⁴ Peebles further testified that the defendant called her several times that night and during the next day, and the day after the fire, the defendant called her and admitted that "he set the house on fire but he didn't mean to hurt her."

Robin Nichols, a friend with whom the defendant stayed before the fire, testified that, while the defendant was staying with her, she noticed a bag with a can of lighter fluid in her bedroom; that the defendant was elusive when asked about the lighter fluid; that he left her apartment on the night of the fire wearing her own brown coat and a black knit cap; and that the can of lighter fluid was gone the night of the fire.

Captain Robert Staunton, an investigator with the Boston fire department arson squad, testified that he went to the property at approximately 12:45 A.M. on March 15, 1999, and, upon entry, saw "a burn in the bottom right hand corner of the hallway on the floor," and noticed an aroma that "smelled like lighter fluid." Staunton testified that he investigated approximately one hundred fires a year and had investigated between twenty and thirty fires in which lighter fluid was the suspected accelerant. He noted the burn pattern on the floor was "like someone had squirted and lit." He saw a single burnt cardboard match on the floor by the threshold. He opined that the fire was incendiary, set on purpose with a flammable liquid. No contemporaneous objection was made. The day after Staunton testified, at the conclusion of the Commonwealth's case, the defendant's motions to strike Staunton's testimony and for required findings of not guilty on the arson and stalking charges were denied.

The judge instructed the jury that their verdict must be unanimous. The defendant did not request a specific unanimity instruction as to the predicate incidents supporting the stalking charge, and no timely objection was made to the judge's general unanimity instruction.

Discussion. 1. Motion to strike expert testimony. Citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Commonwealth v. Lanigan, 419 Mass. 15 (1994), the defendant argues that the judge erred in denying the motion to strike Captain Staunton's testimony because the testimony lacked an adequate foundation and any empirical basis. "Generally, a challenge to the foundation of an expert's opinion must be made before an expert testifies." Commonwealth v. Hill, 54 Mass. App. Ct. 690, 697 (2002), citing Commonwealth v. Beausoleil, 397 Mass. 206, 220-221 (1986). See Commonwealth v. Sparks, 433 Mass. 654, 659 (2001) (to preserve objection based on scientific unreliability, a party must file an appropriate pretrial motion stating the grounds for the objections and request a hearing in accordance with the principles set forth in Canavan's Case, 432 Mass. 304, 309-312 2000, and Commonwealth v. Lanigan, 419 Mass. at 24-27). No such challenge was made, and the defendant cannot preserve the error by means of a subsequent motion to strike. "The rule generally prevailing in this Commonwealth is that objections to matters of evidence must be seasonably made . . . and a party cannot of right insist upon saving an exception to evidence by thereafter seeking to have the evidence struck out." Commonwealth v. Baptiste, 372 Mass. 700, 706 (1977), quoting from Commonwealth v. Theberge, 330 Mass. 520, 527 (1953). Absent a timely objection, we review to determine whether the admission of Staunton's testimony, if error, created a substantial risk of a miscarriage of justice. See Commonwealth v. Perkins, 39 Mass. App. Ct. 577, 584 (1995).

Certainly, the judge could take into account the lack of seasonable objection to Staunton's testimony in considering the motion to strike. The judge did not abuse his discretion in denying the motion. And, for the reasons discussed infra concerning the sufficiency of the evidence as to arson, the admission of the testimony, even if error, did not create a substantial risk of a miscarriage of justice.

2. Sufficiency of the evidence as to arson. The defendant further argues that the evidence was insufficient to support the arson conviction. We consider the evidence in the light most favorable to the Commonwealth and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979).

To prove arson, the Commonwealth was not required to establish that an accelerant was used. Under G. L. c. 266, § 1, the elements of arson are "first, that the defendant wilfully and maliciously, second, burned or caused to be burned or aided, counseled or procured, third, the burning, and fourth, of a dwelling house." Commonwealth v. Niziolek, 380 Mass. 513, 526 (1980). Even absent Staunton's testimony, the evidence that the defendant had set the fire was strong. The night before the fire started, the defendant had told Peebles that he should burn the house. Lighter fluid stored by him at Robin Nichols's apartment before the fire was gone after the fire. The defendant left Nichols's apartment shortly before the fire began and was dressed similarly to the man Officers Fitzpatrick and Tse saw running from the fire. The defendant admitted to Peebles that he had set the fire. The motion for a required finding of not guilty as to arson was properly denied.

3. Sufficiency of the evidence as to stalking. The elements of stalking as set out in G. L. c. 265, § 43(a), as amended by St. 1996, c. 298, § 11, consist of "(1) willfully and maliciously engaging in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) making a threat with the intent to place the person in imminent fear of death or bodily injury."⁵ More than two incidents are required to satisfy the first element. Commonwealth v. Kwiatkowski, 418 Mass. 543, 547-548 (1994). Commonwealth v. Martinez, 43 Mass. App. Ct. 408, 411 (1997). Under the second element, the prosecution need only prove that "the defendant made a threat with the intent to place the victim in imminent fear of death or bodily injury" (emphasis supplied). Commonwealth v. Matsos, 421 Mass. 391, 394 (1995). "This element closely approximates the common law definition of the crime of assault." Ibid.

The indictment specified that the stalking took place "during February, 1999 through September, 1999." Peebles testified that (1) on March 13, 1999, the night before the fire, the...