Opinion
10-P-531
09-23-2011
COMMONWEALTH v. MONTIERO GREEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 13, 2009, a jury convicted the defendant of attempted murder, assault and battery by means of a dangerous weapon, assault and battery, intimidation, stalking, cruelty to animals, and malicious destruction of property valued less than $250. Addressing his various appellate claims in turn, we affirm.
Electronic mail messages (e-mails). The defendant argues that statements made by Meleekia West in a series of e-mails between West, the defendant, and Kelly Coull (another woman with whom the defendant was living) constituted inadmissible hearsay and should not have been admitted in evidence. The Commonwealth responds that the statements properly went to West's state of mind.
The e-mails, dated September 27-29, 2008, were written in the immediate aftermath of the defendant's claim that West had 'lost' an apartment the group was hoping to rent. The e-mails contained various statements by West, such as 'I don't want to be hit anymore;' 'I don't want to live with you and the abuse anymore;' and 'I still love you despite all your faults.' One e-mail from West to Coull laid out in detail West's account of the alleged abuse inflicted by the defendant on both women.
'Statements may be offered as evidence of state of mind without implicating the hearsay rule if the statements either do not contain assertions or are offered without regard to whether the assertions are true.' Commonwealth v. Montanez, 439 Mass. 441, 447 (2003), quoting from Brodin & Avery, Handbook of Massachusetts Evidence § 8.2.6 (7th ed.1999). The defendant claims that the statements are more akin to 'statements of memory' than state of mind because West's state of mind was based on alleged prior actions. But one's state of mind is often based on what one recalls and, after reviewing the e-mails, we conclude that, with one exception, they were properly admitted. The exception is the September 29, 2008, e-mail which was primarily a narrative of past events. The narration, though, was essentially cumulative of other evidence and, we think, any error in its admission was therefore harmless.
We also reject the defendant's claim that the state-of-mind evidence was irrelevant. First of all, West's fear, alarm, and annoyance were elements of the Commonwealth's case on the stalking charge. See G. L. c. 265, § 43(a), as in effect prior to St. 2010, c. 92, § 10. Beyond that, the defendant's primary theory of defense, presented during the opening statement, was that West fabricated the alleged abuse after learning that the defendant and Coull had become engaged. West's state of mind was therefore relevant to explain her delay in reporting the abuse, see Commonwealth v. Montanez, 439 Mass. at 448, and why she stayed in the relationship with the defendant for as long as she did. West's state of mind was also relevant to her credibility.
Because the defendant's intent to attack West's credibility was apparent from the defendant's opening statement, it was permissible for the Commonwealth to introduce the state-of-mind evidence on direct examination. See Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394-396, (2006), quoting from Commonwealth v. Errington, 390 Mass. 875, 880-881 (1984) ('That the impeachment first occurs during cross-examination . . . or was introduced during the opening statement . . . is a distinction without a difference. . . . The evidence was relevant and competent 'to correct any mistaken conclusions the jury may have drawn [about the witness's state of mind] from the defendant's questions as well as to rehabilitate the witness.'')
Though the trial judge did not instruct the jury that West's statements in the e-mails could only be considered for a limited purpose, the defendant never requested such an instruction, and we conclude that the absence of a limiting instruction did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Hall, 66 Mass. App. Ct. 390, 396 & n.3 (2006) . We recognize, of course, that the admissibility of West's statements turned on whether the danger of unfair prejudice flowing from their admission was outweighed by their probative value. See Mass. G. Evid. § 403 (2011). Here, the probative value was high. As noted, the evidence went directly to an element of the Commonwealth's case. It also met, head on, a principal ingredient of the defense. Beyond that, the Commonwealth offered substantial direct evidence of the defendant's assaults, including testimony by West, photographic evidence, and a 911 call.
The Commonwealth argues that West's statements were also admissible as prior consistent statements admitted to rebut the defendant's inevitable claim of recent fabrication. See Commonwealth v. Knight, 437 Mass. 487, 496-498 (2002). Citing Commonwealth v. Dargon, 457 Mass. 387, 396 n.12 (2010), the defendant argues that we may not review this ground on appeal because it was not raised at trial. Because we have concluded that the statements were properly admitted for West's state of mind, we need not reach the issue.
The defendant also challenges the admission in evidence of a separate series of e-mails from 2005 that were collectively gathered in exhibit 15. The record clearly establishes that the defendant proffered these e-mails, Tr. V: 60-65, and he may not now challenge their admission. See Commonwealth v. Aspen, 53 Mass. App. Ct. 259, 265 (2001). The defendant argues that he offered the 2005 e-mails because the 2008 e-mails had been previously deemed admissible, over his objection, and their admission was inevitable. But the record does not support his contention that their admission was inevitable. See Tr. V: 62. Commonwealth v. McDuffie, 16 Mass. App. Ct. 1016, 1018 (1983), is inapposite, as that case dealt with the defendant's use of evidence that had been admitted following the Commonwealth's offer.
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Remaining claims. Williard Gallimore's testimony that West feared the defendant was properly admitted because it was directly relevant to the fear, alarm, or annoyance required to prove the stalking charge. West's testimony regarding Coull's statement that she feared the defendant was also properly admitted to show Coull's state of mind and thus illuminate what the Commonwealth claimed was her motive for testifying as she did. See generally Commonwealth v. Fitzgerald, 376 Mass. 402, 415-416 (1978). West's 911 call was properly admitted as an excited utterance. See Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). According to West's testimony, she made the call upon seeing a reflection of her bruised face in the mirror after the defendant had beaten her and she had run outside barefoot in the snow. She was afraid that the defendant would come out after her, asked the 911 operator where the police were, and asked a neighbor to stay with her until they arrived. Tr. V: 15-21. Objectively viewed, the circumstances indicated that the call was made in order to deal with an ongoing emergency, not simply to record an historical event. See Commonwealth v. Beatrice, 460 Mass. 255, 259-260 (2011).
Finally, admission of the pistol in evidence and the testimony by West that the defendant had fired a shot into her apartment was proper because both addressed the nature of their relationship, his motive and intent toward her, and the basis of her fear. See Commonwealth v. Beneche, 458 Mass. 61, 80-81 (2010) (prior bad act evidence admissible if relevant to show defendant's motive, intent, state of mind, or the hostile relationship between victim and defendant). Because the Brockton arrest was similarly tied to an abusive encounter between West and the defendant, it was also admissible.
Judgments affirmed.
By the Court (McHugh, Brown & Grainger, JJ.),