Opinion
17-P-1597
04-29-2019
COMMONWEALTH v. MATTHEW P. LANGAN.
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 trial, the defendant, Matthew P. Langan, was found guilty of assault and threatening to commit a crime. He appeals, arguing that evidence of prior bad acts was admitted in error and, also, that certain "self-vouching" testimony from the alleged victim, emphasized in the prosecutor's closing argument, created a substantial risk of a miscarriage of justice. We affirm.
Background. The jury could have found the following facts. On February 25, 2016, Court Officers Christopher Campbell and Liam Collins escorted the defendant from a holding cell in the Quincy District Court to a second-floor court room for arraignment. Once in the court room, both officers stood next to him.
The defendant was "very agitated" and was "upset about the charges that were lodged against him." Campbell testified that he believed the charge was "assault and battery on this girl. And even on the way up he kept saying that he didn't do it." After $5,000 bail was set, the defendant began to "flip out" and cursed at everyone in the court room. He shouted, "[F]uck this. This is fucking bullshit." The prosecutor asked Campbell, "[W]as there anything in particular that happened that made him act that way?" Campbell responded, "Just I guess his liberty taken away. Bail being set. He looked over at the victim and said, 'It's all your fault. You're a bitch. I didn't do this.'"
The judge ordered the officers to take the defendant downstairs to the lockup, but the defendant resisted the court officers' efforts to remove him from the court room. There was considerable difficulty -- the defendant climbed on the officers, tried to sit down, and tried to fight them. Campbell and Collins eventually succeeded in removing the defendant from the court room and brought him into the elevator. In the elevator, the defendant continued to use expletives and then began to say things like, "I'll kill you. I'll kill you all. You pussy ass cops, pigs." "[I'll] kick your ass . . . wait till these cuffs come off . . . . I'll kill you for a bag of heroin. I'll stab you with a needle." Campbell testified that the defendant was saying, "'I'm not afraid of you, Bitches,' things along those lines. And he got aggressive. He got assaultive. He made a move towards me like he was going to headbutt me or something along those lines." Campbell illustrated for the jury the gesture the defendant made, saying, "He moved forward like a fighter would do." Campbell testified that he understood the defendant's posture and stance to indicate "he was going to assault" Campbell. Campbell testified that this kind of behavior is rare, and he took this threat seriously due to the mention of weapons and because the defendant told him "wait until I see you in Quincy." Campbell also testified that this incident was the first time in eleven years as a court officer that he had lodged an assault charge.
Collins essentially corroborated Campbell's testimony. "As soon as the $5,000 bail came down, he just flipped out, cursed at the judge, cursed at everybody, started yelling." Collins had moved from his location to stand beside the defendant even earlier "[w]hen he started looking over his shoulder, when he started getting agitated." After the bail was announced, the defendant began swearing, and the judge said, "Okay, he's done, bring him downstairs to the lockup." The court officers then tried to escort the defendant out of the court room while he was struggling.
Collins also testified that, in the elevator, when Campbell had a hold on the defendant, the defendant turned his head and started screaming at Campbell. At one point, "[h]e just broke free of the hold, lunged at Officer Campbell in the elevator. Just made a bee line, straight run, you know, pushed his body towards Officer Campbell." Collins then illustrated with a gesture which he described as "[l]unging his body, using the forward momentum of his body as if just throwing his body at Officer Campbell." Eventually, the officers placed the defendant in a holding cell, but even later, when he was leaving in the sheriff's van, he turned to Campbell and said, "If I see you in Quincy, I'll kill you."
Discussion. 1. Admission of prior bad act evidence. The defendant argues that the trial judge abused his discretion in admitting evidence about the charges for which he was arraigned, because that testimony was evidence of prior bad acts and more prejudicial than probative. The determination whether to admit prior bad act evidence is "committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error.'" Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). The test is not whether we would have made a different decision, but "[i]nstead, we will uphold the judge's decision unless 'we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives.'" Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 54 (2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Evidence of prior bad acts may not be introduced to prove the defendant's bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant "for another purpose such as to establish a defendant's common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive." Commonwealth v. Howard, 479 Mass. 52, 67 (2018), quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). However, even if one of these purposes serves as the basis for the bad act's relevance, "the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Furthermore, adequate contemporaneous and final limiting instructions may negate any error. Commonwealth v. Gomes, 475 Mass. 775, 785 (2016).
The parties disagree about whether the defendant's objection to the testimony about the arraignment was properly preserved. We see no need to resolve that issue because there was no error. In the first place, the testimony about the charges was not, strictly speaking, about a prior bad act. There was no testimony that the defendant actually had committed an assault and battery on the woman -- only that he was charged with committing one. In addition, his vigorous denial was admitted at the same time through the same officer's testimony.
Prior to trial, the defendant submitted a motion in limine requesting the exclusion of prior or subsequent bad acts, the introduction of which the defendant claims had a prejudicial effect "far outweighing" its probative value. The trial judge allowed testimony that the defendant was charged with a crime of an "assaultive nature" but excluded any mention of a battery. At trial, Campbell testified he "believed it was assault and battery on this girl" while discussing the scene in the court room on the day of the incident. Defense counsel did not object at that time.
Second, even if evidence of an arraignment for assault and battery is considered evidence of a prior bad act, the fact that the defendant was being arraigned for that offense was inextricably linked to the facts of the underlying offense. The testimony about the defendant's reaction to the arraignment would have made no sense in the abstract. "'The prosecutor is "entitled to present as full a picture as possible of the events surrounding the incident itself."' Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 10 (2010), quoting Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982)." Commonwealth v. Phim, 462 Mass. 470, 477 (2012).
Finally, evidence about the pending case was relevant on the issue of Campbell's state of mind and his reasonable apprehension that the defendant was assaulting him and that the defendant intended to follow through on the threats he made. In Commonwealth v. Hamilton, 459 Mass. 422 (2011), the defendant was charged with making a threat against his probation officer's daughter. The defendant had been placed on probation for several convictions, and the fact of those convictions -- without underlying facts -- was admitted to show the reasonableness of the probation officer's fear that the defendant would carry out the threat. Id. at 438. The court held that the evidence was properly admitted. "'[A]n ability to [inflict a threatened crime] in circumstances that would justify apprehension on the part of the recipient of the threat' is an element of threatening to commit a crime. See Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001). The reasonableness of the probation officer's fear in the circumstances of the defendant's statement was therefore directly at issue. In the circumstances . . ., where the probation officer's entire knowledge of and relationship with the defendant arose from the fact that he had committed criminal offenses and was placed on probation as a consequence, the officer's knowledge of the defendant's prior convictions could be deemed relevant to a determination whether her fear was indeed reasonable." Hamilton, supra.
In the present case, the defendant threatened to stab and kill Officer Campbell. Like the defendant in Hamilton, the defendant was charged with threatening to commit a crime. To sustain a conviction of threatening to commit a crime, the Commonwealth must prove beyond a reasonable doubt that a "reasonable person in the position of [Officer Campbell], would be reasonable in the belief that the defendant has the ability to carry out the threat." Hamilton, 459 Mass. at 437. For that reason, evidence of the crime for which the defendant was being arraigned properly was admitted for the limited purpose of weighing the reasonableness of Officer Campbell's fear. We are satisfied that the trial judge did not abuse his discretion. L.L., 470 Mass. at 185 n.27.
The jury did not hear the underlying details of the defendant's assault and battery charge.
Moreover, the judge gave a limiting instruction, telling the jury, "The defendant is not charged with committing any crime other than the charges contained within this complaint. You have heard mention of other acts allegedly done by the defendant. I want to emphasize to you that you are not to consider that reference to other alleged acts at all. Your verdict is to relate only to the charges contained in the complaint." The defendant now objects that the instruction was inadequate, because it was given only in the judge's final charge to the jury, it was too general, and it did not inform the jury of the purpose for which the evidence was admitted. Both a contemporaneous instruction and a more specific one might have been preferable. However, the defendant did not request a contemporaneous instruction and did not object to the instruction given. "[T]he law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant." Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992).
2. Vouching for witness credibility. The defendant argues Officer Campbell was permitted to give testimony that essentially vouched for his own credibility and that the prosecutor compounded the problem in his closing argument, both by reiterating the testimony and also by vouching himself and making other improper appeals to the jury. There was no objection to either at trial; thus we review for a substantial risk of miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
The challenged testimony was this:
Q.: "In say nine years of being a court officer, how often has a detainee lunged at you in the way the defendant did?"
A.: "It's very, very rare."
Q.: "When he lunged, what did you think was about to happen?"
A.: "That I was going to get assaulted."
Q.: "Now, in your experience at Quincy District Court was this the first time that someone in custody had said mean things to you?"
The defendant further challenges the following exchange:
A.: "No. It was just the most credible threat I've ever had in eleven years."
Q.: "What made this threat credible in your judgment?"
A.: "He wouldn't stop. It didn't start up in second session and go through the elevator and stop. It was the whole time."
Q.: "At the time, what did you understand or believe about the defendant's ability to carry through on his threats?"
A.: "I never underestimate anyone, particularly when they talk about weapons and hypodermic needles. I take it very seriously. Officers get assaulted all the time. I take any threat seriously, but this is the only time I've lodged an assault charge in 11 years on someone."
Q.: "Was there anything about the way the defendant was acting that made you choose this one as the one to take so seriously?"
A.: "I just thought if anyone might carry it out, it might be him."
"It is a fundamental principle that a witness cannot be asked to assess the credibility of his testimony or that of other witnesses." Commonwealth v. Wright, 444 Mass. 576, 583-584 (2005), quoting Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). The defendant contends Campbell's testimony was "self-bolstering . . . serv[ing] no legitimate purpose." We disagree.
The Commonwealth was required to prove that a reasonable person in Campbell's position would fear that the defendant would carry out his threats. See Commonwealth v. Kerns, 449 Mass. 641, 653 n.18 (2007) ("Whether the threat was made in attending 'circumstances that would justify apprehension' is measured by means of an objective standard"); Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004). Campbell's testimony was relevant to prove that an objectively reasonably court officer, in those circumstances, would be justified in feeling apprehensive that the threat would be carried out. We conclude that Campbell's testimony was relevant to prove the objective reasonableness of his fear.
3. Prosecutor vouching in closing. Although there was no objection at trial, the defendant now argues that the prosecutor, in closing, suggested Campbell should be believed because he is an officer of the court and otherwise vouched for Campbell's credibility. As we said in Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 295 n.7 (2003), quoting United States v. Torres, 216 F.3d 136, 142 (1st Cir. 2000), vouching includes statements that "invite the jury to rely on the prestige of the government and its agents rather than the jury's own evaluation of the evidence." For that reason, some parts of that portion of the prosecutor's argument would have been better left unsaid, including, particularly, the statement that the officer's job was "to keep people safe," "[k]eep jurors safe, to keep the judges safe." However, we see no risk of a miscarriage of justice here. The evidence of the defendant's guilt was overwhelming. Campbell's testimony was detailed and specific and corroborated by that of his fellow court officer. Moreover, "the lack of objection by the defendant, although not dispositive, suggests that these references were not unfairly prejudicial in light of the closing argument as a whole. See Commonwealth v. Taylor, 455 Mass. 372, 384 (2009), and cases cited." Commonwealth v. Faust, 81 Mass. App. Ct. 498, 502 (2012).
"You heard Officer Campbell testify that he's been a court officer for more than a decade. Now his job is to keep people safe. Keep jurors safe, to keep the judges safe, to keep the parties safe, to keep everyone safe, just to -- he's a peacemaker. His job is to keep people safe. He testified that in his over a decade of service as a court officer people have said mean things to him many times. But he testified that this was special. He took this especially seriously. That the way that the defendant was acting, the words he was saying, the relentlessness of his aggression, made him treat this especially seriously. I would suggest to you that the testimony here would support that this is an officer who is conscientious, who took things seriously, and who's not one to cry wolf. He was not one to make a big deal out of nothing."
Judgments affirmed.
By the Court (Wolohojian, Hanlon & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 29, 2019.