Commonwealth v. Oliveira

904 N.E.2d 442, 74 Mass. App. Ct. 49, 2009 Mass. App. LEXIS 428
CourtMassachusetts Appeals Court
DecidedApril 14, 2009
DocketNo. 07-P-1629
StatusPublished
Cited by12 cases

This text of 904 N.E.2d 442 (Commonwealth v. Oliveira) 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. Oliveira, 904 N.E.2d 442, 74 Mass. App. Ct. 49, 2009 Mass. App. LEXIS 428 (Mass. Ct. App. 2009).

Opinions

Meade, J.

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.1 The defendant and the victim had a bad marital relationship which did not improve upon their divorce. The two informally shared custody of their then-eleven year old son, Joseph. On the morning of the incident, the victim telephoned the defendant to arrange a time to pick up Joseph, who had been visiting the defendant. During this conversation, the defendant antagonized the victim by asking if she had “fun fucking Jack all night?” Jack, the victim explained at trial, was her friend John Duran, who was not her boyfriend.2 The victim chose not to engage the defendant on the subject due to their “long history” together, and instead arranged a noontime pickup.

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 [51]*51disrespectful greeting with the query, “Did you have fun fucking Jack all night[?]” Realizing these comments originated with the defendant, the victim, who was extremely upset, got out of the car and confronted the defendant in his apartment’s entry way. After recounting for the defendant what Joseph had said to her, she asked him what he was teaching their son. Without responding, the defendant grabbed her by the throat with one hand to choke and “push” her. Duran intervened by punching the defendant in the face, pushing him to the wall, and grabbing him by the neck. The victim then telephoned the police.

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 [52]*52assault, and making threats, all upon his ex-wife, the victim.3 The defendant acknowledged that his ex-wife was the same victim in those cases, but claimed that he “never assaulted her” and that all he had done was tell her not to “be afraid” because the police officers were present, which led to his conviction of “domestic violence.” The present case was, for the defendant, another story the victim had concocted.

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 [53]*53pretrial discussion that the judge decided that the prior convictions were too prejudicial to be admitted under G. L. c. 233, § 21, which authorizes impeachment by prior conviction. In the same pretrial ruling, the judge allowed the topic to be revisited if the defendant changed the terrain of the case by opening the door for their admission. The judge’s ruling anticipated the circumstances that soon unfolded.

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.

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Bluebook (online)
904 N.E.2d 442, 74 Mass. App. Ct. 49, 2009 Mass. App. LEXIS 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-oliveira-massappct-2009.