COMMONWEALTH v. AQUINO (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of assault and battery on a family member (his then-wife).² On appeal, he challenges two evidentiary rulings. We affirm.

1. Prior bad act testimony. The conviction was based on an incident that occurred at the marital home at approximately 1 a.m. on January 1, 2018. In short, the defendant's wife testified that the defendant attacked her after she raised with him his engagement in an extramarital affair. The wife also testified that the defendant attacked her two months earlier in similar circumstances. The testimony involving the earlier incident had been the subject of a pretrial motion in limine that the judge allowed. The defendant opposed that motion and objected to the admission of the testimony when it was elicited. On appeal, the defendant argues that the testimony regarding the earlier bad act constituted improper propensity evidence, and that its admission warrants a new trial. We disagree.

“It is well established that in appropriate cases, a defendant's prior acts of domestic violence may be admitted for the purpose of showing a ‘defendant's motive and intent and to depict the existence of a hostile relationship between the defendant and the victim.’ ” Commonwealth v. Oberle, 476 Mass. 539, 550 (2017), quoting Commonwealth v. Linton, 456 Mass. 534, 551 (2010). This is just such a case. Of course, before allowing such evidence, the trial judge is to weigh whether the probative value of such evidence is substantially outweighed by its unfairly prejudicial impact. See Oberle, supra; Mass. G. Evid. § 403 (2020). That weighing is “left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error.” Oberle, supra, quoting Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007). We discern no abuse of that discretion here, especially given that the judge gave a contemporaneous instruction to the jury about the limited purposes for which such prior bad acts evidence was being admitted.

2. Hospital records. The defendant also claims reversible error with regard to the admission of records from the wife's hospital visit following the incident. Those records included several references that she had been “assaulted,” and the defendant argues that those references should have been redacted. That claim of error also was fully preserved.

The references to the wife's having been assaulted were plainly germane to her treatment and medical history. The judge did not abuse her discretion in determining that the four-part test for admissibility of such records otherwise was satisfied. See Bouchie v. Murray, 376 Mass. 524, 531 (1978). The references largely memorialize the wife's claim that she had been assaulted, and any references to the defendant as the one who had assaulted her were redacted.³ Nothing in the admitted records comes close to giving any official imprimatur to the wife's allegation that the defendant had attacked her. In addition, when the husband testified, he admitted to striking his wife; his defense was that this was accidental. There was no error, much less prejudicial error.

Judgment affirmed.

FOOTNOTES

2.   The jury acquitted the defendant of strangulation.

3.   To be sure, the jury presumably would have surmised from the wife's testimony that she had told hospital officials that the defendant was the one who had assaulted her. However, that merely underscores that the references to her being assaulted were essentially cumulative of her trial testimony. Cf. Commonwealth v. Ashman, 430 Mass. 736, 742-743 (2000) (even where hearsay evidence was improperly admitted, reversal not required where such evidence was cumulative of properly admitted evidence).