Commonwealth v. Oliveira
Commonwealth v. Oliveira
Opinion of the Court
The defendant was convicted in the Cambridge Division of the District Court Department of assault and battery, in violation of G. L. c. 265, § 13A. On appeal, he claims that the trial judge erred by permitting the prosecutor to cross-examine him relative to his prior convictions. He also claims that comments by the prosecutor in his opening statement and the admission of a witness’s testimony that he had waived his privilege against self-incrimination were errors that created a substantial risk of a miscarriage of justice. We affirm.
1. Background. Prior to trial, the prosecutor informed the judge that the defendant had prior convictions, but that he did not have certified copies for them. The judge acknowledged the lack of certified copies and stated that the Commonwealth could not introduce “prior bad acts” in its case-in-chief, but if the “issue” arose because of “other circumstances,” it could be addressed at that time.
Based on the evidence presented at trial, the jury were entitled to find the following.
When the victim and Duran arrived at the defendant’s apartment at noon, the defendant and Joseph were waiting outside with Joseph’s bicycle, which Duran took to place in the trunk of the car. Joseph got in the back seat of the car, and the victim in the car’s passenger seat. Once inside, she said hello to the boy, who in turn said, “What’s up, jackass[?]” When the victim stared at him in shocked disbelief, he supplemented his
In his defense, the defendant testified that when the victim came to pick up their son, she became angry and was “yelling and screaming” at him as he stood in the entry way to his apartment. According to the defendant, the victim told Duran to punch the defendant in the face and to “kick his ass.” The defendant testified that Duran grabbed him by the throat and punched him in the face. The defendant denied even touching the victim. He also denied asking the victim on the telephone whether she had fun having sex with Duran all night.
When asked why he did not fight back, the defendant responded that he “didn’t want to get involved with anything, [he] was just trying to get in the house.” The defendant testified that he did not summon the police because he did not “want conflict with anybody, [he] just wanted to go in the house and be at peace” because he was retired and disabled as a result of an automobile accident. He testified that he could not believe what was happening.
Prior to his cross-examination of the defendant, and based on the defendant’s depiction of himself in his direct testimony as a peaceful man who wished to avoid conflict, the prosecutor sought permission to impeach him with his prior convictions. Over the defendant’s objection, and based on the judge’s view that the defendant’s testimony was intended to unfairly depict himself in a positive light for the jury, the judge permitted the prosecutor to inquire about the defendant’s prior convictions.
Without providing any details of the offenses, the prosecutor asked the defendant if he previously had been convicted of intimidating a witness, two counts of assault and battery, simple
2. Prior convictions. The defendant claims that it was error for the judge to allow the prosecutor to cross-examine him regarding his prior convictions, which involved the same victim. We disagree. “Evidence of prior convictions may not be admitted as evidence of a propensity to commit a crime, but may be admitted to impeach the defendant’s credibility as a witness, so long as its prejudicial effect does not outweigh its probative value.” Commonwealth v. Roderick, 429 Mass. 271, 274 (1999) (citation omitted). See Commonwealth v. Bianchi, 435 Mass. 316, 322 (2001); Mass.G.Evid. § 609 (2008-2009). More specifically, such evidence “may be admitted to rebut specific portions of the defendant’s testimony.” Roderick, supra. Our review of a trial judge’s decision in these circumstances is not de novo. Rather, the decision to admit impeachment evidence rests in the broad discretion of the judge and will not be disturbed on appeal unless the exercise of that discretion constituted an abuse of discretion or palpable error of law. Ibid., citing Commonwealth v. Maguire, 392 Mass. 466, 467-470 (1984). See Commonwealth v. Young, 382 Mass. 448, 463 (1981).
At the outset of the trial, the judge considered the issue of the defendant’s prior convictions involving the same victim, two of which were for the same crime of assault and battery. Although there is no per se rule of exclusion when the prior conviction is for the same or a similar crime, see Commonwealth v. Crouse, 447 Mass. 558, 565-566 & n.6 (2006), the judge here evidently weighed the possible unfairness to the defendant against the probative value of the evidence. In fact, it appears from the
The defendant testified that despite the beating he took from Duran at the insistence of the victim, he neither summoned the police nor fought back because he merely wished to retreat to his house where he could avoid any conflict. He wanted to be at peace because he was retired and disabled, and he was astonished at what had occurred. He further denied having taunted the victim about her assumed liaison with Duran. Given this testimony, was the judge justified in concluding that the defendant had unfairly depicted himself to the jury as a peaceful, non-combative person who had been victimized by Duran and his ex-wife?
Although the question whether the defendant’s testimony opened the door to this line of cross-examination is a close one, and we may have answered it differently if it were before us in the first instance, we cannot do so here. Rather, we conclude that the judge’s ruling did not constitute an abuse of discretion or palpable error of law. The Commonwealth was entitled to offer the prior convictions to rebut this specific portion of the defendant’s testimony, i.e., that he was a peaceful, nonviolent man who wished to avoid conflict. See Roderick, supra at 275 (“when the defendant answered untruthfully that he had never carried a gun, he opened the door to admission of the evidence of his prior conviction for gun possession”). “Rebuttal evidence of this nature is introduced to impeach the credibility of the witness, but is of a different sort from evidence of prior convictions introduced to impeach the credibility of the defendant generally.” Ibid. The judge’s initial decision to exclude the evidence of the prior convictions did not provide the defendant, given his criminal history of violence, license to unfairly depict himself as a peaceful man who eschewed conflict. See Commonwealth v. Rivera, 425 Mass. 633, 638 (1997). Once he depicted himself as such, the prosecutor’s hands no longer were tied, and he was free
Our finding that the judge did not abuse her discretion is further buttressed by the fact the defendant’s prior convictions of crimes involving his ex-wife were relevant to show the hostile nature of the defendant’s relationship with her and his motive to commit the crime, even had he not opened the door in his direct testimony. See Commonwealth v. Bianchi, 435 Mass. at 322; Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003); Mass.G.Evid. § 404(b). The judge acted well within her discretion in determining that the probative value of the prior convictions evidence outweighed any unfair prejudice to the defendant, see Mass.G.Evid. § 403, particularly in light of the defendant’s denial of having made any antagonizing comments to the victim on the telephone and his stated belief that the crime was a product of the victim’s imagination. See Commonwealth v. Holmes, 157 Mass. 233, 240 (1892) (defendant’s oral threats and repeated acts of violence may indicate “settled ill-will and malice on the part of the defendant towards his wife, and therefore [bear] directly on the question whether there was any motive for him to commit the crime”); Commonwealth v. Gil, 393 Mass. 204, 215-217 (1984) (evidence of restraining orders issued against husband properly admitted to show hostile relationship with wife and motive to kill her); Commonwealth v. Cormier, 427 Mass. 446, 449-450 (1998) (evidence of defendant’s previous attack of, and threats made to, wife was properly admitted to show hostile nature of their relationship and his motive and intent in killing her, especially where defendant claimed self-defense); Commonwealth v. Bianchi, supra (evidence of defendant’s prior assault on his wife was properly admitted to show hostile nature of their relationship and his motive to kill her); Commonwealth v. Julien, supra (evidence of defendant’s prior abusive behavior towards his girlfriend admissible to show hostile nature of their relationship and his motive to kill her).
“[Tjhere is no requirement that [a] judge give limiting instructions sua sponte.” Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). See Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). Nor does the lack of a limiting instruction necessarily create a substantial risk of a miscarriage of justice. See Commonwealth v. Roberts, 433 Mass. 45, 48 (2000); Commonwealth v. Washington, 449 Mass. 476, 488 (2007). Here, the evidence supporting the defendant’s conviction was strong, the defendant offered a mitigating account for his prior convictions, the prosecutor properly argued the matter as one of credibility, not propensity, and the jury asked no questions related to the prior convictions evidence. Because the judge was not required to give the instruction in the absence of a request, and the defendant may have wished to avoid drawing any further attention to the matter by requesting one, there was no error and, therefore, no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).
3. Prosecutor’s opening statement. The defendant claims that the prosecutor improperly stated his personal belief regarding domestic violence and the defendant’s guilt. The prosecutor began his opening statement with the now challenged remarks, which are as follows:
“You don’t put your hands on a woman. You don’t put your hands on her throat. You don’t make disparaging comments, and put your hands on a woman in front of a twelve year old boy or near a twelve year old boy [who’s]*56 both your son and her son. It doesn’t matter what the woman, in this case, [the victim], was saying to you, you don’t put your hands on a woman’s throat.”
Because there was no objection to the prosecutor’s opening statement, we review the defendant’s claim only to ascertain whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Croken, 432 Mass. 266, 267-268 (2000). There was no error and, thus, no risk that justice miscarried.
Although the challenged remarks have an unnecessarily argumentative flavor for an opening statement, they were nonetheless a fair reference to anticipated evidence that bore on the manner and the circumstances in which the defendant committed the assault and battery on the victim. See Commonwealth v. Fazio, 375 Mass. 451,454 (1978). In fact, the challenged remarks were immediately followed by a more appropriate outline of the evidence the prosecutor expected to present, and thus his remarks could not be fairly understood to be his opinion. See Commonwealth v. Croken, supra at 268, quoting from Commonwealth v. Fazio, supra (“The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence”). Rather, the challenged remarks were specifically directed at anticipated evidence that the defendant’s unconsented-to touching of the victim was without justification or excuse, necessary components of assault and battery. See Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 564 (2006). Finally, the lack of an objection by defense counsel is further indication that the remark was not unfairly prejudicial in tone, manner, or substance.
4. Testimony regarding waiver of Fifth Amendment privilege. The defendant claims that Duran should not have been permitted to inform the jury that he had chosen to testify despite his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Because Duran’s testimony was presented without objection, we review the defendant’s claim only to determine whether any error created a substantial risk of
Prior to the start of the trial, the judge was made aware that Duran’s testimony, most likely consisting of a statement that he punched the defendant, would be self-incriminatory. Following the proper procedure, see Commonwealth v. Fisher, 433 Mass. 340, 350 & n.12 (2001), the judge assigned Duran counsel, who discussed the matter with Duran, and the judge conducted a voir dire, which concluded with Duran’s knowing and voluntary waiver of his right not to incriminate himself.
Near the conclusion of Duran’s direct testimony, the prosecutor elicited from him that Duran had met with an attorney prior to testifying, that he was advised of his rights, and that if he testified he could be charged with a crime. Duran stated that he opted to testify because he wanted to “tell the truth,... [he was] not going to stand back and watch a man put his hands on a woman like that, even if [he] didn’t know the person, [he was] not going to do that. . . . [He had] no respect for a person that does something like that.” Neither the prosecutor’s question nor Duran’s responses made an express reference to his waiver of his Fifth Amendment privilege against self-incrimination.
“When it is clear that a witness intends to exercise the privilege against self-incrimination, the witness should not be permitted to do so before the jury.” Id. at 350, citing Commonwealth v. Hesketh, 386 Mass. 153, 158 (1982). “A witness’s invocation of the Fifth Amendment in front of the jury is prejudicial in part because of its implication of criminality which, particularly if coming from an accomplice of the defendant, will strongly suggest that the defendant is also a criminal.” Commonwealth v. Fisher, supra at 349 n.11. The defendant’s claim insists a corollary mle that would prohibit a jury from knowing that a witness was testifying despite the potential criminal ramifications of his testimony. However, the defendant’s brief fails to cite any authority in support of the claimed rule. As such, we deem his argument to be waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Even if the claim were not waived, the defendant’s argument would run counter to the principles that support the prohibition on invoking the privilege in front of the jury. Allowing a witness at trial to explain before a jury that he is refusing to testify
The circumstances presented here are very different from those involving a refusal to testify. Ordinarily, “evidence whose purpose is not to prove material facts but merely to bolster credibility generally may not be admitted unless and until there has been an attack on credibility.” Brodin & Avery, Massachusetts Evidence § 6.24 (8th ed. 2007). However, this rule, as cited in the concurring opinion, is the general rule. An exception to the mle is that where the witness’s “ ‘bias was inherent in his position as an alleged participant in the crime,’ rehabilitative evidence may be introduced even though no attack on credibility has occurred.” Ibid., quoting from Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 571 (1983). Even though Duran was not a participant in the crime against the victim, by intervening on the victim’s behalf, he became a participant in the events giving rise to the defendant’s crime. In these circumstances, Duran’s inherent bias is just as apparent, especially in light of his relationship with the victim.
Due to his inherent bias, Duran’s decision to testify, despite the possible criminal consequences he faced, provided proper rehabilitative evidence which assisted the jury’s evaluation of his credibility. Moreover, the fact that a witness’s testimony, which could have been avoided based on the privilege, put the witness at risk is an acceptable factor a prosecutor may put before the jury. Commonwealth v. Dixon, 425 Mass. 223, 233 (1997). As the prosecutor’s inquiry was proper, there can be no risk that justice miscarried.
Judgment affirmed.
Additional facts will be discussed as they relate to the defendant’s specific claims of error.
Duran testified otherwise.
No mention was made of the defendant’s 1990 convictions of assault and battery and malicious destruction of property, or that he had a pending motor vehicle offense when he committed the within offense. In addition to the victim, three other women have received abuse prevention orders against the defendant.
The jury also were instructed at the beginning of the trial and in the final charge that opening statements were not evidence.
Concurring Opinion
(concurring). I write separately only with respect to
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Unlike Dixon, where the witness was open to impeachment by virtue of his prior inconsistent testimony, the prosecutor here had no need to bolster Duran’s testimony. The majority’s view that “Duran’s decision to testify, despite the possible criminal consequences he faced, provided proper rehabilitative evidence which assisted the jury’s evaluation of his credibility”
The majority seeks to fit Duran’s testimony within the exception to this general rule, namely that where the “whiff of [the witness]’s bias was inherent in his position as an alleged participant in the crime,” the prosecutor may introduce rehabilitative-type evidence even before the witness’s credibility has been formally attacked. Commonwealth v. Haraldstad, 16 Mass. App. 565,571 (1983). I cannot agree that the situation at hand comports with that in Haraldstad, as the analysis in that case specifically contemplates a situation in which the witness is an alleged participant in the same crime as the defendant. Ibid.
In Haraldstad, the witness in question had been accused of the same rape and assault by means of a dangerous weapon as the defendant. Id. at 570. There, one easily can imagine how the jury would get a “whiff” of the witness’s inherent bias, i.e., his desire to save his own neck by testifying favorably for the defendant. Id. at 570-571. Here, Duran had not participated in the same crime as the defendant (assaulting the victim), but rather had committed a separate assault upon the defendant, ostensibly in defense of the victim. I cannot conclude that Duran’s separate attack on the defendant qualifies as a “case based on the same facts” within the meaning of Haraldstad, id. at 571. If it did, the Haraldstad exception likely would swallow the rule, allowing any witness who waives his Fifth Amendment right, even a witness whose unrelated crime would not inherently raise the suspicions of the jury, to receive the same favorable treatment as the witness in Haraldstad, a man standing accused of the same heinous crime as the defendant in that case. Instead, Duran’s bias was simply a commonplace sort: a boyfriend testifying favorably for his girlfriend, the victim. He could have been attacked for this
Where Duran had neither given prior inconsistent testimony nor had his character or truthfulness attacked, and where he had not been accused of the same crime as the defendant such that the jury’s suspicions about his inherent bias might be aroused, he should not have been permitted to testify that he was raised to be, in essence, a stand-up kind of fellow who valued getting the truth out more than he feared facing criminal charges. In effect, Duran was allowed, improperly in my view, to vouch for his own good character and truthfulness. See Commonwealth v. Sheline, 391 Mass. 279, 288 (1984); Commonwealth v. Haraldstad, supra; Commonwealth v. Clark, 23 Mass. App. Ct. 375, 380 (1987). I see no reason to extend Dixon or Haraldstad to cover the circumstances here and accordingly respectfully disagree with the majority’s conclusion that the prosecutor’s inquiry was proper.
In Dixon, the court’s reliance on Commonwealth v. Donovan, 422 Mass. 349, 357-358 (1996), is as to the propriety of certain comments that the prosecutor made comparing a witness’s having taken blame for his part in a crime (and thereby being credible) with the defendant’s failure to do so. Commonwealth v. Dixon, supra at 233. The Donovan court, while not explicitly endorsing the comments, noted that, even if they “[cross] the line, the judge’s instructions avoided substantial prejudice to the defendant.” Commonwealth v. Donovan, supra at 358.
The prosecutor’s explicit mention of the Fifth Amendment in Dixon, unlike the more oblique reference here, is of no consequence to the analysis. It is inconceivable that any lay person who is exposed to television or to newspapers could fail to understand what “rights” Duran had been advised of by counsel,
Reference
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- Commonwealth v. Paul J. Oliveira
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- 12 cases
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- Published