Commonwealth v. Chartier

686 N.E.2d 1055, 43 Mass. App. Ct. 758, 1997 Mass. App. LEXIS 232
CourtMassachusetts Appeals Court
DecidedNovember 5, 1997
DocketNo. 95-P-1893
StatusPublished
Cited by22 cases

This text of 686 N.E.2d 1055 (Commonwealth v. Chartier) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Chartier, 686 N.E.2d 1055, 43 Mass. App. Ct. 758, 1997 Mass. App. LEXIS 232 (Mass. Ct. App. 1997).

Opinion

Kass, J.

During his trial on charges of malicious destruction of property and violation of a domestic abuse protective order issued under G. L. c. 209A, § 3, the defendant Michael Chartier took the witness stand in his defense. On cross-examination of Chartier, the Commonwealth placed in evidence his prior convictions, three months earlier, of violating a c. 209A protective order and of making annoying telephone calls. The prosecutor, while making his closing argument, twice referred to the prior c. 209A conviction as evidence tending to prove the falsity of Chartier’s trial testimony, which was that he had put behind him a romantic attachment to Michelle Botelho, that he had become indifferent to her, and had moved on with his life. That use of a prior conviction, admitted under G. L. c. 233, § 21, in a substantive sense rather than solely to impeach the defendant’s credibility was probably a prosecutorial error. Defense counsel did not, however, object to the prosecutor’s argument. Of several questions raised by the defendant on appeal, the most difficult one is whether, notwithstanding the lack of an objection at trial, the prosecutor’s argument produced a substantial risk of a miscarriage of justice. Close behind that issue in difficulty is whether the trial judge acted within his discretion in permitting the prosecution to place in evidence a prior conviction of an offense the same as that for which the defendant was being tried.

Facts. These are the facts the jury of six could have found, viewing the evidence in the light most favorable to the Commonwealth. Chartier and Michelle Botelho dated regularly from October, 1990, to May, 1993, when Botelho reduced their status to just friends. Later that year, in August, Botelho decided that friendship was no longer sustainable and broke off the relationship entirely. Chartier took the breach badly. There was an occasion when he skulked behind a neighbor’s garbage can and watched as Botelho came home with a male companion. Later, he telephoned Botelho and demanded to know who the escort had been and why he had kissed her. When an uncle of Botelho’s died, Chartier went to the wake and while there, asked Botelho whom she was seeing. He took to following Botelho in his car; he drove by her house honking his horn. He turned up at the gym (in a local YMCA) where she worked out. On December 13, 1993, Botelho obtained a preliminary protective order under G. L. c. 209A, § 3, and that order, after a hearing on December 27, was extended for a year.

[760]*760In April and May of 1994, the Botelho family began receiving nuisance telephone calls traceable to Chartier, including one in which he said, “Michelle, I’m going to get you.” Chartier resumed following Botelho around at the gym and elsewhere. On Christmas Eve in 1994, the Botelho family attended a midnight Mass. Upon leaving church, Botelho’s father, Manuel,1 noticed that the lights of his grey BMW automobile were blinking. The car was equipped with an anti-theft system that would cause the car, if tampered with, first to sound an alarm for twenty seconds and then to flash its headlights for five minutes. Michelle and Manuel spotted Chartier running “from behind cars” toward the church. Manuel gave chase and caught up with Chartier on a handicap access ramp to the church. Manuel grabbed Chartier by his jacket and Chartier slipped out of it and away. Before Chartier departed, Manuel had said to him, “You’re not supposed to be close to the family. You have a court order.” To that Chartier replied, “Prove it. Prove it. You could never prove it.” Manuel also said, “You broke my windshield,” to which Chartier again replied, “Prove it. Prove it.”2

Before turning to the question we identified in the opening paragraphs of this opinion, we consider several other issues raised by the defendant.

1. Admission of evidence of prior harassing conduct. The government, over objection, introduced evidence of the harassing conduct described above. That evidence, the defense urges, was improperly received because it violated the prohibition against admitting evidence of prior misconduct to show the defendant’s inclination to committing the crime charged. Commonwealth v. Trapp, 396 Mass. 202, 206 (1985). Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 243 (1990). Evidence of prior misconduct may be received, however, if it illuminates a pattern or course of conduct by the defendant. Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994). Commonwealth v. Odell, 34 Mass. App. Ct. 100, 103 (1993). Chartier’s reactions to the dissolution of the attachment with Botelho played just such a clarifying function. The conduct with which Chartier [761]*761was charged might seem an inexplicable act of destruction if carried out in a vacuum but made some sense in the context of his aggrieved state of mind and jealous behavior. See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982); Commonwealth v. Gil, 393 Mass. 204, 215-216 (1984); Commonwealth v. Almeida, 42 Mass. App. Ct. 607, 615-616 (1997). See also Commonwealth v. Bryant, 390 Mass. 729, 744 (1984); Commonwealth v. Robertson, 408 Mass. 747, 750-751 (1990); Commonwealth v. Myer, 38 Mass. App. Ct. 140, 143-144 (1995) .

In exercising discretion to admit evidence of prior misconduct for contextual purposes, the judge is to weigh the probative value of the prior conduct against its distorting impact. Commonwealth v. Robertson, 408 Mass, at 750. Commonwealth v. Martino, 412 Mass. 267, 280-281 (1992). Here, the trial judge reasonably decided that the prior conduct evidence was necessary to give the jury the whole picture. His decision represents a category of evidentiary rulings that an appellate court does not disturb except in cases of palpable error. Id. at 280. Contrast Commonwealth v. Picariello, 40 Mass. App. Ct. 902, 903-904 (1996) . As the acts described had their inception in the breakup of Botelho and Chartier, none is remote in the temporal or connectedness sense. See Commonwealth v. Helfant, 398 Mass. 214, 228 n.13 (1986); Commonwealth v. Calcagno, 31 Mass. App. Ct. 25, 27-28 (1991).

As to how the jury were to consider the evidence of prior bad acts, the judge delivered a limiting instruction during the course of his charge to the jury. Defense counsel had pressed for a more contemporaneous limiting instruction, but had not been able to suggest what it was that he wanted the judge to say. The timing of a limiting instruction, which involves management of the trial, rests in the discretion of the trial judge. Commonwealth v. Robinson, 24 Mass. App. Ct. 680, 687 (1987). In his charge, the judge told the jurors that they could not use prior bad acts evidence “as a substitute for proof that the defendant committed the crimes charged . . . nor ... as proof that the defendant had a criminal personality or a bad character . . . you may not use [the evidence of prior bad acts] to conclude that if the defendant committed the other acts, then he must also have committed these charges.”

2. Admission of prior conviction. In Commonwealth v. Maguire, 392 Mass. 466, 470-471 (1984), the court established that a [762]*762trial judge’s exercise of discretion in admitting evidence of a prior conviction under G. L. c. 233, § 21, was subject to review.

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Bluebook (online)
686 N.E.2d 1055, 43 Mass. App. Ct. 758, 1997 Mass. App. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-chartier-massappct-1997.