COMMONWEALTH v. LFALAKI (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of stalking and malicious destruction of property over $250.² On appeal, he claims that the judge improperly instructed the jury on the use of prior bad acts evidence. We affirm.

Prior to trial, the defendant moved in limine to limit the three instances of prior bad acts to the incidents themselves and to omit any references to the defendant being convicted of crimes related to those incidents or his resulting incarceration. The Commonwealth agreed, and the judge so limited the evidence.

Prior to the admission of the prior bad acts evidence, and in her final charge to the jury, the judge instructed the jury that they could not consider the evidence as proof that the defendant committed the crimes, that he has a criminal propensity, or that he has bad character. Instead, the judge told the jury that they may consider it solely on the limited issue whether the defendant committed the crime of stalking, and for no other purpose. There was no objection.

The victim testified to three prior bad acts (1) in 2015 or 2016, during a snow storm, the defendant left the victim alone for one hour in his truck without the keys before he returned and punched her in the mouth; (2) after the victim prevented the defendant from looking through her telephone, the defendant became angry, took her telephone, and dragged her out of his car, resulting in scrapes on her face, arm, and leg; and (3) the defendant and the victim argued at the victim's grandfather's house, and the defendant pushed her into a wall and put his hands around her throat, which left her unable to breathe for approximately twenty seconds.³ As agreed, there was no mention of the defendant's convictions and incarceration.⁴

After some deliberations, the jury asked if they could use all the alleged acts of violence to convict the defendant of stalking or whether they were limited to the acts alleged to have occurred on September 26, 2017. Although the judge's initial inclination was to let the jury consider all the incidents, the prosecutor persuaded the judge to limit the jury to the acts occurring on September 26, as those were the events alleged in the indictment. The judge so instructed without objection. The defendant now claims that the judge's instruction to the jury converted the prior bad acts from their initial proper use into impermissible propensity evidence. We disagree.

“Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). See Mass. G. Evid. § 404(b) (2019). Such evidence, however, may be introduced “for some other purpose, for instance ‘to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.’ ” Crayton, supra, quoting Commonwealth v. Walker, 460 Mass. 590, 613 (2011). See Commonwealth v. Oberle, 476 Mass. 539, 550 (2017) (“a defendant's prior acts of domestic violence may be admitted for the purpose of showing ․ the existence of a hostile relationship between the defendant and the victim” [citation and quotation omitted] ).

Although there was some confusion by defense counsel about the purpose of the evidence, the judge properly instructed the jury about the appropriate use of the prior bad acts. Contrary to the defendant's claim, the judge expressly told the jury that they could not use the prior bad acts as propensity evidence. Indeed, it was the prosecutor who prevented the judge from making the mistake the defendant now claims occurred. Finally, the judge limited the jury's consideration of the evidence to whether it showed a pattern, and did not mention the other permissible reasons to admit such evidence. This worked to the defendant's benefit, as did the judge's limiting the use of the evidence to only the stalking indictment, and not the other two crimes. There was no error and, thus, no risk that justice miscarried.

Judgments affirmed.

FOOTNOTES

2.   The defendant was acquitted of arson.

3.   The victim also testified to the three incidents that occurred on September 26, 2017, and that constituted the underlying conduct for the stalking charge. The defendant does not challenge this evidence.

4.   In her final charge, the judge again instructed the jury on the limited use of the prior bad acts, again without objection.