MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was found guilty of intimidation of a witness, criminal harassment as a lesser included offense of stalking, and leaving the scene of an accident after causing property damage.
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On appeal, he argues that the judge erred in admitting prior bad act evidence and in instructing the jury, over objection, to disregard defense counsels comment during closing argument regarding the nonproduction of a witness by the Commonwealth. We affirm.
Background. The jury could have found the following facts. The defendant and the victim, whom we shall call Ana, began a romantic relationship in 2012. Although the relationship was “rocky” and “abusive,” the two remained together as a couple for about five years and had two children. Ana ended the relationship in 2017, but she continued to communicate with the defendant regarding issues concerning their children.
On the evening of September 28, 2018, Ana went to a local bar in Brockton with a coworker, “James.” Earlier that day, the defendant had contacted Ana via Facebook Messenger and indicated that he wanted to see her. Ana declined the invitation. Ana did not tell the defendant about her plans, but when she left the bar at approximately 2 a.m., she saw the defendant, who said, “What the F are you doing here” and then punched James, who immediately departed in his car and left Ana behind. The defendant demanded that Ana leave with him, which she did to avoid “something [bad] happen[ing].”
A few days later, on October 4, 2018, the defendant contacted Ana again and asked to see her. Ana refused and made it clear that she did not want to see him. That night, Ana visited a friend. As she was driving home from the friends house at about 1:30 a.m., Ana saw the defendant parked at the end of her street. Ana did not stop. She kept driving to avoid the defendant, but he followed her in his car. Ana entered the parking lot of a Stop & Shop grocery store where she hoped to find some help. As Ana approached the entrance to the parking lot, the defendant drove through the exit and slammed into the bumper of her car. Ana stopped and honked her car horn to attract attention. The defendant approached Anas car and said he wanted to give Ana $500 and she should not call the police. The defendant was waving an envelope, which presumably contained the money, but Ana did not accept it. Instead, as soon as the defendant left, Ana drove to the Brockton police station and reported the incident.
Then, on October 17, 2018, Ana was attending a GED program at the Adult Senior Center in Brockton when she saw the defendant driving around the school. She went to her car at lunch time and found a note from the defendant. Ana could not recall the exact wording of the note but testified that she felt “violated” and “threatened” because it conveyed words like, “You thought you could get away from me. I found your car.” The defendant did not dispute that he wrote the note and left it on Anas car.
Discussion. 1. Prior bad act evidence. Prior to trial, the Commonwealth filed a motion in limine seeking to introduce evidence of the defendants prior acts of violence against Ana. Specifically, the Commonwealth sought to question Ana about a prior physical assault and threat that occurred on April 8, 2018. The incident was described in the Commonwealths motion as follows:
“On or about April 8, 2018, the victim was driving her car on her street at about 2am when the defendant cut her off. He tried to take her cell phone and grabbed her by the neck/throat area. He said that he did not want to hurt her; he just wanted to talk to her. He made threats to kill her by shooting her and the guy that she was seeing. He texted her a photograph of a gun at 7:25am.”
In addition, the Commonwealth sought to introduce two letters that the defendant sent to Ana. The prosecutor described the sending of the letters as subsequent bad acts.
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The defendant also filed a motion limine in which he sought to exclude evidence of all prior and subsequent bad acts, including prior arrests and restraining orders issued against him.
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The judge addressed both motions in limine just before the trial commenced and allowed the Commonwealths motion as to the April 8, 2018 incident only. Relying on Commonwealth v. Matsos, 421 Mass. 391 (1995), the judge reasoned that, in the context of a stalking case, “the Commonwealth is entitled to present to a jury admissible evidence of the totality of the defendants conduct towards the victim.”
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At trial, Ana testified, over the defendants objection, about the April 8th incident described above. She said that the defendant threatened to shoot her, whomever she was with, and himself, but she did not say anything about receiving a photograph of a gun. The judge gave a limiting instruction before Ana was questioned about the incident and explained the proper use of prior bad act evidence. The judge repeated this instruction in his final charge. There was no objection to either instruction.
“To be sure, ‘evidence of [prior bad acts] is not admissible to prove bad character.’ ” Commonwealth v. Martinez, 43 Mass. App. Ct. 408, 412 (1997), quoting Commonwealth v. Hoffer, 375 Mass. 369, 372 (1978). However, such evidence may be admissible if relevant for other purposes such as common scheme, pattern of operation, identity, intent, or motive, “[s]o long as the probative value of such evidence is not ․ outweighed by the danger of prejudice -- a matter for the trial judge to determine -- [and] we will not disturb its admission absent palpable error.” Martinez, supra. See Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014) (“We uphold a judges decision to admit prior bad acts absent an abuse of discretion”).
The judge did not abuse his discretion in admitting evidence of the April 8th incident. It is well established that in appropriate cases, a defendants prior acts of violence may be admitted for the purposes of showing a “defendants motive and intent and to depict the existence of a hostile relationship between the defendant and the victim” (quotation and citation omitted). Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). Given the nature of the crimes with which the defendant was charged and the short period between the April 8th incident and the charged conduct, evidence of the April 8th assault was probative of the defendants mental state and intent at the time the charged offenses occurred.
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In addition, as the judge observed, the defendant was charged pursuant to G. L. c. 265, § 43 with the crime of stalking, therefore, the Commonwealth was entitled to introduce “evidence of the totality of the defendants conduct toward the victim.” Martinez, 43 Mass. App. Ct. at 412-413, quoting Matsos, 421 Mass. at 392 n.3.
Moreover, the judge carefully guarded against any potential prejudice by instructing the jury before Ana testified and again in his final charge that the prior bad act evidence could be considered for limited purposes and not the defendants propensity to commit the alleged crimes. See Oberle, 476 Mass. at 551-552. The defendants claim that the limiting instruction improperly permitted the jury to consider the prior bad act evidence substantively is unavailing. The judge instructed the jury that they “may not take [Anas] testimony as a substitute for proof that the defendant has committed any of the crimes charged, nor may you consider it as proof that the defendant has a criminal personality or bad character; ․ Specifically, you may not use it to conclude that if the defendant committed the other act, he must have committed one or more of the crimes in the case.” In his final charge, the judge again instructed the jury that they could consider the April 8th incident “only as it is relevant to one or more of the elements of the present charges against the defendant.” Both instructions tracked the model jury instructions on prior bad acts and correctly conveyed the proper legal standard. See Commonwealth v. Young, 461 Mass. 198, 210 (2012).
Lastly, the defendant asserts that the prejudicial effect of the evidence was exacerbated by the prosecutors reference to the April 8th incident in her closing remarks. We disagree. Although the prosecutor referred to the evidence twice, she said nothing improper. She did not dwell on the prior bad act evidence and on both occasions stated that the evidence was relevant because it showed what Ana was afraid of.
2. Missing witness. Without obtaining the judges approval, defense counsel asked the jury in her closing argument to draw an adverse inference from the Commonwealths failure to call as a witness James, the individual who the defendant allegedly assaulted on the evening of September 28, 2018. Defense counsel argued: “Wheres [James]? Why didnt we hear from [James]? Wouldnt he be a person youd like to hear from to corroborate whether or not this interaction happened?” Following closing arguments, the judge admonished defense counsel for not raising the issue with him first, as she was required to do, and stated that he would not have permitted the argument had counsel brought the issue to his attention. The judge then instructed the jury to disregard the missing witness argument.
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The defendant argues that the judge erred by telling the jury to disregard defense counsels argument. More specifically, the defendant asserts that the judge violated his constitutional rights, including his right to the effective assistance of counsel. We disagree. The judge properly determined that defense counsel was asking the jury to draw an adverse inference from the Commonwealths failure to call James as a witness, and there is no question that defense counsel should have obtained the permission of the judge before making the argument. See Commonwealth v. Saletino, 449 Mass. 657, 670 (2007); Commonwealth v. Vasquez, 27 Mass. App. Ct. 655, 658 (1989). In addition, there was no evidence regarding Jamess availability, and the judge correctly determined that Jamess testimony was not material. See Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 445 (2020). Given these circumstances, defense counsel should not have been permitted to encourage the jury to draw an adverse inference. Accordingly, the judge did not err by telling the jury to disregard the missing witness argument.
Judgments affirmed.
FOOTNOTES
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. The judge dismissed this charge prior to sentencing on the ground that the Commonwealth failed to meet the requirements of G. L. c. 90C, § 2. Two related charges of criminal harassment and malicious injury to property over $1,200 were dismissed during the trial as duplicative, and the defendant was found not guilty of assault and battery by means of a dangerous weapon, reckless operation of a motor vehicle, stalking, and malicious damage to a motor vehicle.
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. It appears that the defendant sent the letters to Ana while he was incarcerated, showing, the prosecutor argued, the defendants insistence on contacting Ana.
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. The defendant had nine prior convictions for violating restraining orders, seven prior convictions for assault and battery, and two prior convictions for stalking.
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. The record indicates the defendant was convicted of a crime in connection with the April 8th incident. However, the judge ruled that Ana could not make “any reference to the defendant being incarcerated at any point in time,” or “any reference to having to communicate with him from jail or the like.”
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. We acknowledge that the April 8th incident shares some general similarities with the alleged offenses. However, we are not persuaded, as the defendant argues, that the April 8th incident was so similar to the charged offenses “as to increase the risk of propensity reasoning by the jury.” Commonwealth v. Peno, 485 Mass. 378, 386 (2020). We note that the jury acquitted the defendant of several offenses, indicating that they followed the judges instructions on the permissible uses of prior bad act evidence and were not improperly swayed by any similarities. Id. at 402. See also Commonwealth v. Bryant, 482 Mass. 731, 737 (2019) (jury presumed to follow limiting instructions on prior bad act evidence).
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. The judge stated: “[W]hen counsel made reference to the Commonwealths failure to call a particular witness or witnesses during the course of this trial, you have to disregard that argument entirely in your deliberations. You have to decide this case based solely on the evidence that was presented here in this courtroom during trial, and you should not and must not base any of your decisionmaking [sic] on what any witness who did not testify may have said. You cannot and should not do that. And youre not to draw any inferences whatsoever for or against any party because that party did or did not call any particular witness at the trial of this case.”