Opinion
No. 12–P–378.
2013-02-1
COMMONWEALTH v. Gaetano DANTONA.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of violating an abuse prevention order. We affirm.
Extension of abuse prevention order. The defendant first contends that testimony that the plaintiff had extended her abuse prevention order was improperly admitted, and that this error was one of constitutional magnitude. The defendant's bare citation to Federal and State constitutional provisions does not sufficiently explain why this claim constitutes constitutional error, and therefore fails to rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also Commonwealth v. Waite, 422 Mass. 792, 800 n. 6 (1996). We therefore review the claims of error on nonconstitutional grounds.
The defendant maintains that because the parties had already stipulated that the order had been extended and was in effect, the plaintiff's testimony that the order had been extended was a back-door method of introducing prior bad acts, that is, that the order had been extended due to some misconduct on his part. However, the judge had already ruled that notwithstanding the stipulation, the plaintiff's testimony would be permitted in lieu of the order itself.
The admission of the evidence fell within the judge's discretion. Cf. Commonwealth v. Worcester, 44 Mass.App.Ct. 258, 262 (1998) ( “[A] judge may admit relevant evidence even if a party has agreed to stipulate to the fact that the offered evidence tends to prove”), quoting from Commonwealth v. Benoit, 389 Mass. 411, 425 (1983). In light of the fact that there was no evidence about the substance of the order or the basis for the extensions, the evidence was merely cumulative, and its admission was not error.
The defendant brought a motion in limine to exclude the order on the basis that the parties had a stipulation. The judge excluded the order, but ruled that the prosecution could question the plaintiff regarding “whether there was a restraining order, the dates of the restraining order and things like that,” but could not “ask for the underlying basis of it.” The defendant did not object at that time.
In order to conclude that the order had been extended based on some misconduct by the defendant, the jury would have had to engage in speculation, something which the jury had been specifically instructed not to do. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) (jury are presumed to follow judge's instructions). Reference to “domestic violence” order. The defendant also argues that the judge's reference to a “domestic violence restraining order” on two occasions required a mistrial, and that the judge's denial of the motion for a mistrial was a due process violation. The judge used the phrase “domestic violence restraining order” twice: once during empanelment and once after the jury were sworn in, during the course of an initial instruction. The defendant did not object and we therefore review the claim of error for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845–846 (2010). We review the denial of the motion for a mistrial for an abuse of discretion. Commonwealth v. Torres, 453 Mass. 722, 731–732 (2009).
In light of our disposition, we need not decide whether the error was preserved. See Commonwealth v. Aviles, 461 Mass. 60, 66 (2011). At trial, the defendant made two objections, which were overruled, when the prosecution asked the complainant whether the initial order had been extended and whether she had appeared in court periodically since 2007. The defendant also objected to the prosecution's cross-examination regarding whether he had appeared before a judge, but did not object when asked whether the order had been extended multiple times.
The fact of an order was before the jury. The question before us is whether the two references to domestic violence were but “slight slip[s] of the tongue,” Commonwealth v. Almonte, 444 Mass. 511, 522 (2005), or so pejorative as to occasion a substantial risk of a miscarriage of justice or a mistrial. The controlling statute, G.L. c. 209A, describes orders issued under its authority as “abuse prevention orders.” See G.L. c. 209A, § 7, as appearing in St.1990, c. 403, § 8. They are commonly called restraining orders, or orders of protection. In this case, the judge described the order as an “abuse prevention order” or a “restraining order” in the approximately ten other references to the order before the jury. The jury heard no evidence regarding domestic violence. No argument was made to the jury regarding domestic violence. The final instructions referred only to an “abuse prevention order.”
As noted above, the jury were instructed to base their verdict on facts, not suspicion or conjecture. In context, the two challenged references were insufficient to create a substantial risk that the jury convicted the defendant of the violation because of bias based on conjecture as to a history of actual or threatened violence. Cf. Commonwealth v. Oliveira, 445 Mass. 837, 844 (2006) (finding no substantial likelihood of miscarriage of justice in conviction of murder in the first degree on the basis of misstatement in final instructions). For the same reasons, the judge did not abuse his discretion in denying the motion for a mistrial. Cf. Commonwealth v. Bryant, 447 Mass. 494, 503–504 (2006) (no abuse of discretion in denial of motion for mistrial where statement by witness was not inflammatory, did not stand out, and jury were presumed to follow instructions).
Judgment affirmed.