COMMONWEALTH v. GODDARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, William Goddard, appeals from his convictions by a jury of kidnapping, pursuant to G. L. c. 265, § 26, and assault by means of a dangerous weapon, pursuant to G. L. c. 265, § 15B (b), arising from an incident that occurred while he was incarcerated at the Essex County house of correction awaiting trial on charges including murder of his girlfriend. Specifically, the defendant argues that the judge improperly admitted prior bad act evidence, namely that he was incarcerated pending a “serious felony” charge and that his girlfriend was deceased. We affirm.

We need not recite the facts in detail.² It is sufficient to state that on the day in question, in a classroom in the correctional institution, the defendant grabbed an instructor, held him in a headlock while placing a pointed object behind the victim's ear, and demanded the release of his (the defendant's) deceased girlfriend whom he said he spoke to that morning and who he said was being held in the basement. The victim testified that after he activated a distress signal, the defendant told him, “[D]on't worry, I'm not going to hurt you.”

Prior to empanelment, the judge conducted a hearing on motions in limine. The Commonwealth argued that it wanted to elicit testimony from its expert witness, Dr. Alison Fife, that the defendant's girlfriend was deceased at the time she interviewed the defendant and that the defendant was then being held on a “serious felony” charge. Initially, the defendant opposed each of these proposals. The Commonwealth maintained it would not offer any evidence about the nature of the serious felony or about the circumstances surrounding her death. This was important for the jury to know, the Commonwealth maintained, in order to understand Fife's opinion that the defendant was malingering.³ Defense counsel, in response, made it clear that his objection was limited to any reference to the defendant's girlfriend being deceased because he feared the jury would assume that the defendant was awaiting trial for her murder.⁴ However, after further discussion, and an “off the record” consultation between defense counsel and the defendant, defense counsel withdrew his objection to any reference to the defendant's girlfriend being deceased, based on the judge's suggestion that the prosecutor limit herself to a single leading question to Fife to the effect that, “Did you know at the time of your interview with the defendant that his girlfriend was deceased?”⁵

The defendant did not object at trial when the prosecutor asked the defendant's expert witness, Dr. Eric Brown, if the defendant had a pending, serious felony charge and that he had disclosed his intention to rely on a defense of lack of criminal responsibility in that case. And the defendant did not object when the prosecutor asked Fife whether she was aware at the time of her interview with the defendant that his girlfriend “had passed away,” and that at the time of the underlying incident the defendant had a pending “serious felony” charge. The judge twice gave strong cautionary instructions to the jury limiting their consideration of the testimony to its providing an explanation of the location of the incident and whether it had a bearing on the defendant's state of mind at the time.

For the reasons just recited, the issues raised by the defendant were not preserved and we review only to determine whether any error in the admission of the evidence created a substantial risk of a miscarriage of justice.⁶ See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The judge's rulings will be upheld unless “we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” Commonwealth v. Robertson, 88 Mass App. Ct. 52, 54 (2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

We discern no error. Evidence that may suggest prior bad acts may be admitted if it is relevant for a purpose other than propensity, such as the defendant's motive, intent, or state of mind. See Commonwealth v. LeBeau, 451 Mass. 244, 260-261 (2008). See generally Mass. G. Evid. § 404(b) (2019). In such cases, “the evidence is admissible if its probative value outweighs the risk of unfair prejudice.” Commonwealth v. Philbrook, 475 Mass. 20, 26 (2016), citing Commonwealth v. Anestal, 463 Mass. 655, 665 (2012).

Here, the judge acted well within her discretion in concluding that evidence of the pending “serious felony” charge and the fact that the defendant's girlfriend was deceased was highly relevant on the question whether his alleged lack of criminal responsibility was genuine or feigned, and that there was no danger of unfair prejudice because the jury would not be made aware of the nature of the pending felony and would be given strict instructions about the limited use they could make of such evidence. See Commonwealth v. Facella, 478 Mass. 393, 401-402 (2017). See also Philbrook, 475 Mass. at 27; Commonwealth v. Adams, 434 Mass. 805, 821 (2001).

Judgments affirmed.

FOOTNOTES

2.   The defendant was convicted of the 2008 murder of his girlfriend and other charges on October 22, 2012. See Commonwealth v. Goddard, 476 Mass. 443 (2017). The first trial on the June 2012 charges that are the subject of this appeal ended in a mistrial in January, 2015, and the defendant was convicted after a retrial in October, 2015.

3.   The defendant's expert witness, Dr. Eric Brown, defined “malingerer” as “somebody who manufactures symptoms of, in this case, of mental illness for some kind of perceived gain, some kind of conscious, what we call secondary gain, something they're going to get out of all of this.” Fife testified that the term “malingering,” as used by psychiatrists, referred to “somebody feigning symptoms because they're looking for another, an alternative explanation” in the form of a sickness for why they behaved a certain way. She explained that it was her opinion that the defendant was malingering because his “fixed false belief” that his girlfriend was still alive was not consistent with his otherwise normal presentation during the interview.

4.   Defense counsel told the judge, “So would I object to [the prosecution] using the terminology ‘being held on a serious felony’? No, I think that's fair to do that.”

5.   Following the empanelment of the jury, the judge briefly addressed her earlier pretrial rulings. At the close of the brief discussion, defense counsel stated that he was objecting to preserve his client's rights, without specifying what ruling he objected to. An objection is not sufficient to preserve an issue for appeal unless the basis for the objection is apparent from the context or the party states the specific ground for the objection. Commonwealth v. Proia, 92 Mass. App. Ct. 824, 827 (2018).

6.   Even if the issues before us were properly preserved, we would reach the same result because, as we explain in the text, the judge did not err in admitting the evidence.