COMMONWEALTH v. Wayne D. ROSE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant, Wayne D. Rose, was convicted of assault and battery. On appeal he contends that the admission of three instances of bad act evidence was error that created a substantial risk of a miscarriage of justice, and that the failure to provide a “castle” law instruction to the jury constituted prejudicial error. We affirm.
Background. On June 23, 2018, the defendant's sister (victim) went to the defendant's home because he had posted negative information about her and her family on Facebook. When she entered the home, the defendant was in the shower. He eventually came downstairs, and a verbal argument ensued. The argument escalated into physical conflict. According to the victim, the defendant “ragged dolled [her] and just threw [her] into the wall.” As the victim attempted leave, the defendant pushed her onto potted plants on his front stairs.
The defendant and other percipient witnesses testified to a different version of events that painted the victim as the aggressor who refused to leave and initiated the physical contact.2 After the incident, the victim called the police who responded and subsequently arrested the defendant.
Discussion. 1. Prior bad acts. The defendant contends that the admission of instances of bad act evidence was error that created a substantial risk of a miscarriage of justice. “[T]he prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose.” Commonwealth v. Corliss, 470 Mass. 443, 450 (2015), quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).
The defendant first contends that the responding police officer's testimony to the effect that he “knew” the defendant was error. We disagree. The brief and innocuous reference did not constitute the type of testimony that Massachusetts appellate courts have deemed problematic. See, e.g., Commonwealth v. Anestal, 463 Mass. 655, 664-666 (2012); Commonwealth v. Blaney, 387 Mass. 628, 636 (1982); Commonwealth v. McClendon, 39 Mass. App. Ct. 122, 128-129 (1995).
Next, the defendant claims error in the responding police officer's testimony that multiple officers came to the scene “based [on] their previous interaction with [the defendant] and ․ his standing in the community.” This argument is likewise unpersuasive because defense counsel elicited this testimony on cross-examination.3 The comment was responsive to the question, and it does not appear that defense counsel thought otherwise, as he did not object or move to strike the answer. See Commonwealth v. Lodge, 431 Mass. 461, 467 (2000) (where “[t]he defendant has inserted into the case the relevance of the police judgment and decisions[,] the officer must be allowed to defend that judgment”).
Finally, the defendant argues that the responding officer improperly testified that (1) the defendant's demeanor was “typically how it usually is” and (2) the defendant was arrested. Even assuming that both comments constituted error, we discern no substantial risk of a miscarriage of justice. The comments were brief and were not emphasized in the Commonwealth's closing argument. Furthermore, the absence of any objection at trial to the now-challenged testimony provides “some indication” that the evidence was not unfairly prejudicial (citation omitted). Commonwealth v. Sanchez, 405 Mass. 369, 375 (1989). See Commonwealth v. Lyons, 426 Mass. 466, 471 (1998); Commonwealth v. Mello, 420 Mass. 375, 380 (1995).4
2. Castle law instruction. The defendant argues that the judge erred in denying his request for a castle law instruction. See G. L. c. 278, § 8A.5 “The enactment of G. L. c. 278, § 8A, modified the common law by justifying the use of deadly force by a person in his own home to respond to an assault threatening death or great bodily harm by someone unlawfully in the home, even though the person had a reasonable means of retreat or escape.” Commonwealth v. Peloquin, 437 Mass. 204, 208 (2002).
Here, the judge ruled that the castle law did not apply because there was no evidence to suggest that the victim was about to inflict great bodily injury or death upon the defendant. We agree. See, e.g., Commonwealth v. Jefferson, 36 Mass. App. Ct. 684, 687 (1994) (defendant's castle law claim was “artificial and should not succeed” because “a predicate of § 8A, namely, that a defendant (occupant) believe reasonably that he was threatened with serious bodily injury or death, was at the vanishing point here”). The evidence -- which at most showed that the victim scratched the defendant in the neck area -- did not rise to the level of great bodily injury or death within the meaning of the statute, and did not suggest that the defendant feared any further, greater harm. See id. at 687 n.6 (defendant's reference to the victim's “movement with his left shoulder and, vaguely, to something at [the victim]’s side, hardly suggests that the defendant's point-blank shooting was responding to a reasonable apprehension of [the victim]’s inflicting upon him grave bodily harm or death”).
The defendant further maintains that the absence of a castle law instruction precluded him from arguing to the jury that he was being attacked and did not use more force than necessary to defend himself. Contrary to this assertion, the judge properly instructed the jury on the law of self-defense, the content of which provided the opportunity for the defendant to make such an argument. Thus, there was no error.
2. The defendant's wife, mother, and another witness testified, inter alia, that they witnessed the altercation; that the victim initiated the physical conflict; that the victim slapped or scratched the defendant; and that the defendant only grabbed the victim's hands, “turned her,” and walked her out of the house. The defendant testified and denied doing anything beyond spinning the victim around. He also claimed that the victim “fell down [the front] stairs.”
3. Defense counsel asked the responding officer whether it was typical for five or six officers to respond to the scene of a domestic violence incident.
4. The defendant does not claim that trial counsel rendered ineffective assistance, and this is not a case where it can be inferred “from the record that counsel's failure to object was not simply a reasonable tactical decision.” Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).
5. General Laws c. 278, § 8A, provides as follows:“In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.”
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