Opinion
18-P-1031
05-07-2020
COMMONWEALTH v. JAMES FRASHER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a jury-waived trial, the defendant was convicted of one count of assault by means of a dangerous weapon on a person over sixty, G. L. c. 265, § 15B (a); one count of assault and battery on a person over sixty, G. L. c. 265, § 13K (a 1/2); one count of assault and battery on a family or household member, G. L. c. 265, § 13M (a); and one count of threatening to commit a crime, G. L. c. 275, § 2. He was acquitted of one count of stalking, G. L. c. 265, § 43 (a); and one count of recklessly endangering a child, G. L. c. 265, § 13L. He appeals, arguing that bad character and propensity evidence were admitted improperly, causing prejudicial error. We affirm.
Background. The judge heard the following evidence. The defendant and victim were married in May of 1993. In 2015 and 2016, they lived in Ayer, along with their daughter, her boyfriend, and their granddaughter. They also had a pit bull and two cats.
The couple divorced in 2017.
The victim testified that, in 2015 and 2016, her relationship with the defendant was "rocky" and "scary"; during that time, she also was suffering from serious health issues, including stage three cancer, which required aggressive treatment. She testified that she and the defendant would argue frequently about money and their children. In addition, the defendant was drinking "on and off" and, by September 2016, his drinking had increased to "every day, all day." She testified that, when the defendant drank, he "was like Dr. Jekyll and Mr. Hyde. He'd get really angry and frustrated about everything and if things didn't go his way it made him worse."
In particular, the victim described four specific incidents. First, in July of 2015, while she was doing laundry, the defendant shot his BB gun at a nearby window, breaking the glass. She felt "[k]ind of nervous, scared because [she] didn't know what was going on."
Second, in July of 2016, the victim's morning routine was to smoke a cigarette with her coffee in the kitchen; while she was doing that, she saw the defendant cooking eggs over one of the burners on the stove. She then left to do chores in the house before leaving for work, and, when she came back downstairs, she smelled a "pretty strong" odor of gas. She went into the kitchen and found that three "pilots on the stove were on, but no flame." She got nervous and scared and "just started opening up windows and doors."
Third, on September 23, 2016, after drinking at a pool hall, the defendant came home and, at some point, picked up the dog's pillow and knelt down on it. He then picked up his baby granddaughter, and held her up to the dog, "face to face" -- still withholding the dog's favorite toy; he then said to the dog, "Go ahead, try it."
The victim testified that the defendant had a habit of playing roughly with the family dog, a pit bull; one of the things that he did was to tease her by taking her favorite toy, a heart shaped pillow. The dog would then fight to get the toy back. The victim testified that she was frightened when the defendant held the baby in front of the dog, because "one snap, it would have had the baby's face." When the victim's daughter demanded her baby, the defendant put the baby down and said, "What are you going to do? Call the cops?" Shortly afterwards, the defendant left the house, saying he was going to "therapy."
The victim found this odd as the defendant did not have therapy at night.
Fourth, the victim testified that, early the next morning after the third incident, on September 24, 2016, she awoke to find the defendant shaking her feet and telling her to wake up. He asked her "where his stuff was," and the victim replied that she did not know what he was talking about. The defendant told the victim that, if she didn't tell him where his stuff was, she was not going to like the consequences. He then released her, but, moments later, returned and held the victim's shoulders down on the couch with his hands and arms so that she could not move. The victim testified that she could smell the alcohol on the defendant and that he was "drunk." She then felt the defendant hitting the pillow with something shiny around her head and she heard the defendant demanding to know where his stuff was. She testified that she felt as though the defendant was trying to kill her by hitting her head with the object.
Due to the victim's cancer, she slept on the couch to be closer to the bathroom.
The victim got her feet from under the blanket, put them in the defendant's midsection, "and told him to get the blank off me and . . . kicked him away." She ran upstairs, screaming that "he [was] trying to kill [her]." She hid in her daughter's closet, holding the baby while her daughter called the police. When the officers arrived, the defendant had run out the back door and the victim remained in the closet. She went downstairs afterwards, and she saw a screwdriver under the coffee table; the screwdriver belonged to her husband and she had not seen it before she went to sleep the evening before. There were bruises on her arm from where she had been held, including "fingerprint" marks and a scrape on her face. The police took photographs that were admitted in evidence.
On December 20, 2016, the defendant was indicted on seven counts. Following a jury-waived trial, the judge found him guilty of assault by means of a dangerous weapon; of assault and battery on a person more than sixty years of age; of assault and battery on a family or household member; and of threatening to commit a crime. She found the defendant not guilty of stalking and recklessly endangering a child; the Commonwealth filed a nolle prosequi on a second charge of assault by means of a dangerous weapon. The defendant now argues that bad character and propensity evidence was admitted improperly at trial, unfairly portraying him as a violent and aggressive person who abused alcohol. In his view, admission of this evidence created a substantial risk of a miscarriage of justice.
Discussion. Because the defendant did not object at trial to the evidence he now challenges, we review to determine whether there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010) (where defendant did not object to witnesses' testimony at trial review limited to whether alleged errors created substantial risk of miscarriage of justice); Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
The defendant filed a motion in limine, seeking to "exclude prior bad acts," including the fact that the defendant was "drunk" on September 24, 2016. The Commonwealth filed a motion in limine, seeking to admit evidence of the course of the relationship between the defendant and the victim. The judge heard from both counsel and concluded by saying that she would "see how it goes and if [the defendant] object[s]" then she would "handle things as they happen." Citing Commonwealth v. Grady, 474 Mass. 715, 719 (2016), the defendant argues that his objection was preserved by his motion in limine. This argument fails because the judge did not rule on his motion but, instead, required him to bring the specific argument to her attention as the evidence was offered. This he did not do; he objected only once to this evidence at trial, as described infra, note 7.
Generally, "evidence of [prior bad acts] is not admissible to prove bad character. . . . It may, however, be admissible for other relevant purposes" (quotation omitted). Commonwealth v. Martinez, 43 Mass. App. Ct. 408, 412 (1997). "So long as the probative value of such evidence is not . . . outweighed by the danger of prejudice -- a matter for the trial judge to determine -- we will not disturb its admission absent palpable error." Id., See Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014) ("We uphold a judge's decision to admit prior bad acts absent an abuse of discretion"). We see no abuse of discretion here, and certainly no risk of a miscarriage of justice.
We note that, because the defendant did not object during the trial, the judge did not rule explicitly on this issue; however, we "assume that [a] judge is familiar with the law and did not permit [her]self to be influenced by . . . objectionable testimony." Commonwealth v. Montanez, 439 Mass. 441, 449 (2003). Absent any indication to the contrary, we assume the judge gave no weight to inadmissible evidence. Commonwealth v. Healy, 452 Mass. 510, 514 (2008). At no point did the judge give any hint that she was inclined to, or had, considered the evidence for an inadmissible purpose. Contrast Commonwealth v. Darby, 37 Mass. App. Ct. 650, 655-656 (1994). We also note that the judge acquitted the defendant on the stalking charge.
In Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014), the court clarified that the "case law has not always been consistent regarding the standard for excluding 'other bad acts' evidence. . . . We therefore clarify that 'other bad acts' evidence is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk" (emphasis added).
On the charge of stalking, the Commonwealth was required to prove that the conduct of the defendant caused the victim to become seriously alarmed or annoyed. See G. L. c. 265, § 43 (a). For that reason, the Commonwealth was entitled to present evidence of the whole picture of the defendant's conduct toward the victim. See Martinez, 43 Mass. App. Ct. at 412. Accordingly, the victim was permitted to testify that the defendant was drinking "on and off" around the years of 2015 into 2016 and drank daily in September 2016; further, she said that, when the defendant did drink, "[h]e'd get really angry and frustrated about everything and if things didn't go his way it made him worse." She compared his behavior to "Dr. Jekyll and Mr. Hyde." The victim's daughter also was permitted to testify that her relationship with the defendant became strained during this period, while he was drinking.
The defendant did object to the testimony of the daughter's boyfriend that he witnessed the defendant drinking while he lived at the parties' residence. The judge overruled the objection and we see no error. The defendant does not address this ruling specifically in his brief.
This evidence was highly probative on the charge of stalking and appropriately provided context for understanding the relationship between the defendant and the victim. It clearly was relevant to explain the victim's feelings of nervousness and fear in response to the defendant's behavior. Moreover, as the Commonwealth argues, such evidence routinely is admitted in domestic violence cases, in order to provide a picture of the entire relationship. See, e.g., Commonwealth v. Sharpe, 454 Mass. 135, 143-145 (2009); Commonwealth v. Bianchi, 435 Mass. 316, 322 (2001); Commonwealth v. Gil, 393 Mass. 204, 215-216 (1984).
The defendant's argument that the probative value of this evidence is outweighed by undue prejudice also fails. No reasonable view of the evidence permits an inference that the Commonwealth introduced the challenged evidence to prove the defendant had a bad temper and drinking problem, and, for that reason, was guilty of assault and battery. Contrast Commonwealth v. Triplett, 398 Mass. 561, 563 (1986) (evidence of prior assault, less than honorable discharge from Army, and incident where defendant lost his job as result of his temper admitted to prove common scheme, intent, or motive; on review, admission of such evidence found unfairly prejudicial to defendant because Commonwealth used evidence "to prove that the defendant had a bad temper, and, therefore, was guilty of murder in the first degree"). We note that the evidence at issue here did not involve acts of violence against individuals other than the victim, nor did it describe uncharged behavior or behavior that was remote in time. And certainly, the testimony that the defendant was drinking or "drunk" at the time of the assault, even if disputed, was properly admitted to give a full picture of the offense at issue. We are satisfied that the challenged evidence was not unfairly prejudicial.
Finally, we see no error in the prosecutor's reference to the fact that the defendant was drinking on the night of the assault on the couch. The parties do not dispute that the defendant smelled of alcohol at that time. The prosecutor based her comment on the evidence presented at trial, or on fair inferences therefrom. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ("We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence").
Accordingly, we are satisfied there is no error, and certainly no substantial risk of a miscarriage of justice. See Commonwealth v. DelValle, 443 Mass. 782, 790-791 (2005).
Judgments affirmed.
By the Court (Hanlon, Lemire & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 7, 2020.