Opinion
No. 11–P–1881.
2012-11-16
COMMONWEALTH v. Xavier VELASQUEZ.
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of one count of malicious damage to a motor vehicle.G.L.c. 266, § 28( a ). On appeal, he argues that the conviction should be reversed because hearsay evidence of prior bad acts was introduced during the Commonwealth's redirect examination of its primary witness. We affirm.
The defendant was acquitted of one count of unlawful possession of a firearm, G.L.c. 269, § 10( a ), one count of unlawful possession of ammunition, G.L.c. 269, § 10( h ), one count of discharging a firearm within 500 feet of a dwelling, G.L.c. 269, § 12E, one count of unlawful possession of a loaded firearm, G.L.c. 269, § 10( a ), ( n ), and one count of assault by means of a dangerous weapon, G.L.c. 265, § 15B( b ).
The defendant was in a romantic relationship with Santana Fraichard (Santana). Brandon Fraichard (Brandon) is Santana's brother. On December 27, 2009, the defendant and Brandon were involved in a brief fight at a gas station. As the fight was breaking up, the defendant said angrily, “I gotch you, I gotch you [ sic ].” A few days later, at approximately 2:00 A.M. on December 31, 2009, Brandon and his girlfriend heard the sound of windows being broken outside their home. Brandon saw the defendant carrying a bat and running with another man toward a van. He noticed that the back and side windows of his girlfriend's car had been broken. At trial, defense counsel challenged Brandon's credibility by suggesting that he had a “grudge” against the defendant because he (Brandon) did not want him (the defendant) to date Santana. On cross-examination, defense counsel ably and extensively explored this line of inquiry. On redirect examination, the prosecutor turned to the same line of questioning, asking whether Santana had told Brandon why she wanted to leave the defendant.
Brandon's brother and the defendant's brother were also involved in the fight.
Among other things, defense counsel asked, “You don't approve of that relationship?”, “You are against this relationship?”, and “You told your sister Santana to leave [the defendant]?” In response to this last question, Brandon responded, “[Santana] actually told me that she wanted leave [the defendant]....”
“[Y]ou stated on cross-examination that your sister Santana said that she wanted to leave the defendant? ... Did she tell you why?” Brandon answered, “Yes.” When asked why, Brandon responded, “Because [Santana] said that she was tired of all the abuse and tired of how he treated her and tired of how he didn't care about his kids....” Brandon further testified that Santana was “in ... pain” and that she came “crying” to her family “about how she wants to get away from something, but she is scared to.”
The defendant argues that the prosecutor's redirect examination elicited impermissible hearsay testimony and prior bad acts. We disagree. Although Brandon testified as to what Santana said to him about why she wanted to leave the defendant (see note 4, supra ), her statements were not offered for their truth, but rather to explain Brandon's state of mind. “Statements are not inadmissible hearsay when they are not offered to prove the truth of the matter asserted, but, rather, are offered for a purpose whose relevance flows simply from the fact that the statements were made.” Commonwealth v. Serrano–Ortiz, 53 Mass.App.Ct. 608, 614 (2002).
Likewise, although evidence of a defendant's prior bad acts “is clearly not admissible for the purpose of proving bad character or a propensity to commit crimes,” Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1982), it can be admissible to show “common scheme, pattern of operation, preparation, opportunity, nature of relationship, knowledge, intent, motive, identity, or absence of accident or mistake.” Commonwealth v. Cheremond, 461 Mass. 397, 408 (2012). Prior bad acts may also be admissible if they contribute to “as full a picture as possible of the events surrounding the incident itself.” Bradshaw, 385 Mass. at 269–270.
Here, defense counsel's cross-examination was designed to portray Brandon as having an unexplained grudge against the defendant. Once the defendant decided to undermine Brandon's credibility in this way, the Commonwealth was entitled to rehabilitate the witness by introducing evidence to explain his state of mind. On cross-examination, defense counsel put the nature of the relationship between Brandon, Santana, and the defendant directly at issue. The trial judge, therefore, did not err in allowing the prosecutor to present a more complete picture of that relationship on redirect examination. “The scope of redirect examination is within the sound discretion of the trial judge,” and we uphold the judge's determination unless that discretion was abused. Commonwealth v. Arriaga, 438 Mass. 556, 577 (2003).
Because we conclude that there was no error in the prosecution's redirect examination of Brandon, we need not, and do not, consider whether defense counsel's objections were timely interposed.
For these reasons, we discern no basis to disturb the conviction.
Judgment affirmed.