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Appeals Court of Massachusetts.



Decided: November 22, 2021

By the Court (Wolohojian, Kinder & Hershfang, JJ.1)


The defendant raises one issue in this appeal from her convictions, after a jury trial, of assault and battery on a police officer, G. L. c. 265, § 13D, and resisting arrest, G. L. c. 268, § 32B.2 Specifically, the defendant argues that her son's statements to the police should have been excluded as inadmissible prior bad act evidence, and that the error was prejudicial. We affirm.

Over the defendant's objection, the Commonwealth was permitted to introduce testimony from the arresting police officer that the police were in the defendant's apartment in response to a 911 telephone call about a domestic disturbance and that the defendant's son “stated that [the defendant] and her boyfriend had gotten into an altercation,” which was the reason for the 911 telephone call to which the police had responded. The defendant argues that the testimony was inadmissible evidence of a prior bad act. As a general matter, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Mass. G. Evid. § 404(b)(1) (2021). Such evidence may be admitted, however, when relevant, “to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.” Commonwealth v. Walker, 460 Mass. 590, 613 (2011), quoting Commonwealth v. Horton, 434 Mass. 823, 827 (2001). Because such “prior bad acts” or “propensity” evidence is “inherently prejudicial,” Commonwealth v. Johnson, 35 Mass. App. Ct. 211, 218 (1993), S.C., 43 Mass. App. Ct. 509 (1997), it is “inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk.” Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).

We need not decide whether the evidence at issue here was improperly admitted because, in any event, we are convinced its admission “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). To begin with, the evidence suggested that the son's statements about the defendant were false, and were fabricated to deflect attention from himself. Indeed, apart from the son's self-exculpatory accusation of the defendant, there was nothing to suggest that the defendant had in fact engaged in the domestic violence that precipitated the 911 telephone call. To the contrary, the defendant was not even in the apartment when the police arrived. In addition, the son's girlfriend gestured to the police that the son was not telling the truth. Moreover, the evidence of the charged crimes was very strong, based on first-hand observations by the police officer who testified; the son's statements were tangential to the crimes for which the defendant was on trial. Furthermore, the testimony was brief, amounting to only a few lines in the transcript, and the prosecutor made no further use of it. In particular, no reference to the evidence was made in closing argument. Finally, the fact that the jury acquitted the defendant of one of the charges demonstrates that they were not improperly swept away by the challenged testimony, nor did they draw a negative inference of propensity against the defendant.

Judgments affirmed.


2.   The defendant was acquitted of assault and battery, G. L. c. 265, § 13A (a). Three additional counts were dismissed by the Commonwealth. Those counts were the following: strangulation or suffocation, G. L. c. 265, § 15D (b), interfering with a police officer in violation of common law, and intimidating a witness, G. L. c. 268, § 13B.

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