Commonwealth v. Butler, No. 03-P-1397 (MA 1/28/2005)

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COMMONWEALTH vs. MICHAEL BUTLER.

No. 03-P-1397.

Court of Appeals of Massachusetts.

Suffolk.

October 21, 2004.

January 28, 2005.

Assault and Battery. Idle and Disorderly Person. Evidence, Prior misconduct, Hostile witness, Impeachment of credibility. Witness, Hostile witness, Impeachment. Practice, Criminal, Argument by prosecutor.

Complaints received and sworn to in the West Roxbury Division of the District Court Department on September 1, 2000, and November 2, 2000, respectively.

The cases were tried before Robert C. Rufo, J.

Daniel F. de Abreu for the defendant.

Douglas E. Zemel, Assistant District Attorney (Catherine N. Tucker, Assistant District Attorney, with him) for the Commonwealth.

Present: Armstrong, C.J., Grasso, & Graham, JJ.

GRAHAM, J.

A District Court jury convicted the defendant of assault and battery and also of disorderly conduct. On appeal, the defendant contends the following: the trial judge improperly admitted evidence of prior bad acts involving the defendant and the victim; the prosecutor impermissibly called the victim to testify with the sole purpose of impeaching her; and the prosecutor improperly criticized defense counsel, vouched for Commonwealth witnesses, and elicited testimony about the defendant's arrest and incarceration. We reverse the judgment as to the assault and battery because admission of the prior bad acts, over the objection of the defense, was error.

Background. We summarize the facts the jury could have found, reserving certain details for discussion in connection with the specific issues raised. The defendant was charged in three complaints with assault and battery by means of a dangerous weapon, assault and battery (two counts), disorderly conduct, use of a motor vehicle without authority, and malicious destruction of property,¹ arising out of three incidents involving his girlfriend, Carrie Jones. Jones initially accused the defendant of assaulting her, but later recanted the accusations.

The first incident for which the defendant was tried occurred on August 28, 2000. Boston police Officer Lyndon Christian responded to a call from an apartment at 12 American Legion Highway in the Dorchester section of Boston, where the defendant lived with Jones. Jones was seated in an ambulance being treated for bruises and swelling around her right eye. The area around her eye was swollen and the injury appeared to be fresh. In response to questioning by Officer Christian, Jones stated that her boyfriend had punched her. Jones was upset and crying at the time. The defendant was arrested several days later and charged with assault and battery and use of a motor vehicle without authority.

The second incident occurred at approximately 11:00 P.M. on November 1, 2000. Boston police Officer Ricky Cooks was dispatched to 24 Calder Street in Dorchester on a report of a disturbance. He arrived at that address and saw the defendant banging on a car windshield and yelling at Jones, who was inside the car. Calder Street is in a residential area. Several of the residents were attracted to the scene as a result of the noise. The defendant was arrested and charged with disorderly conduct and malicious destruction of property.

The remaining complaint against the defendant arose from an incident reported by Jones to the Boston police department on April 7, 2001. Jones, accompanied by her daughter, reported to the desk sergeant that on the previous evening, the defendant took her car keys; assaulted her, knocking out two of her teeth; burned her genitals with a lit cigarette; and forced her to have sex with him. The defendant was arrested and charged with assault and battery by means of a dangerous weapon, to wit, a lit cigarette, and assault and battery.

Shortly after the criminal complaints issued, Jones became an uncooperative witness. Prior to the scheduled start of trial, she recanted all charges she had made against the defendant and stated that her injuries were all self-inflicted.

Faced with a reluctant witness, the Commonwealth moved in limine to admit as spontaneous utterances statements Jones made to the police immediately following the incidents that were the subject of the complaints. The Commonwealth also sought to introduce in evidence several prior bad acts of the defendant, including two restraining orders that Jones had taken out against him. In addition, the Commonwealth sought to introduce evidence that the defendant previously struck Jones in the face, causing her to suffer a black eye. After a hearing, the judge allowed the Commonwealth's motion to introduce in evidence Jones's spontaneous utterances, but reserved judgment on whether to allow evidence of the prior misconduct.²

In her opening statement the prosecutor told the jury that Jones, the defendant's girlfriend, would tell a version of the events that differed from her earlier reports to the police. The prosecutor asked the jury to focus on the Commonwealth's witnesses who would follow Jones.

Trial. At trial the prosecutor called Jones as the Commonwealth's first witness. Jones testified that for the past seven years, the defendant, who lived at 12 American Legion Highway, had been her boyfriend. Regarding the August 28, 2000, injury, Jones testified that she hurt her lip while smoking cocaine in a glass pipe, and sustained an eye injury in a fight that evening with an unidentified person in a "base house"³ in a fight over drugs. She further stated that after leaving the base house she went to the defendant's apartment where she stayed for approximately one hour prior to calling the police for medical assistance. She denied that the defendant hurt her and testified that because the defendant had refused to give her money, she falsely told the police he had pushed her out of the apartment.

Regarding the April, 2001, incident, Jones testified that she was with the defendant at his apartment from April 4 through April 6. During that period the defendant had many visitors stopping by to see how he was doing because he was ill. She testified that she cut her lip while smoking cocaine using a broken glass pipe. With respect to her two missing bottom teeth, Jones stated that the teeth were loose and, while she was eating barbeque ribs at a Chinese restaurant near her home, she bit on a bone, dislodging the teeth. She stated that she falsely accused the defendant of assaulting her after she became angry with the defendant because he had allowed another woman to live in their apartment.⁴

The prosecutor then turned to the prior bad act evidence. She questioned Jones about the June, 1998, incident in which Jones received a black eye and about the two restraining orders Jones had taken out against the defendant in July and September, 1998. Prior to the prosecutor's questions in this area, the judge gave the jury a limiting instruction.⁵ Jones testified that she had no recollection of speaking to the police about an incident in June in which she had a black eye. Regarding the two restraining orders, she recalled only obtaining the order of July 27, 1998.⁶

Finally, the prosecutor asked Jones a series of questions regarding injuries and hospital visits she made in August and October, 1998. Jones explained that she frequently spent the night in base houses and occasionally fought with other occupants. She was also drinking alcohol heavily and, in her efforts to become sober, injured her throat while trying to disgorge the alcohol she had ingested.⁷

Following Jones's testimony, Sergeant Debra Jenkinson of the Boston police department and Jones's daughter, Rochelle Emuedue, testified about the April, 2001, incident. Sergeant Jenkinson testified that Jones reported to the police station with her daughter and granddaughter at approximately 10:30 A.M. on April 7. Jones, whose lip was cut and swollen, was wearing a shirt stained with dried blood. She reported that after staying with the defendant on April 7, she wanted to leave the apartment. The defendant refused to give her the car keys, punched her in the face, and forced her to have sex with him. In addition, she claimed he burned her genital area with a lit cigarette, placed a mattress against the door and refused to let her leave the apartment, beat her over the course of the following two days, and forced her to have sex with him after each beating.

Emuedue repeated much of the testimony provided by Sergeant Jenkinson. She testified that she was driving in the area of the defendant's apartment looking for Jones. At the gasoline station near the defendant's apartment she saw Jones. Jones's lip was very swollen, but her major complaint was that the defendant had taken her keys and would not return them. Emuedue persuaded Jones to report the matter to the police. After leaving the police station, Emuedue drove Jones to the hospital where she was examined and treated.

Following Emuedue on the stand was Boston police Officer Steve Horne, who testified about the uncharged incident of June 18, 1998. Prior to Horne's testimony, the judge again instructed the jury on the limited nature of the evidence. Horne testified that he was dispatched to Blue Hill Avenue in the Mattapan section of Boston where he observed Jones crying, with a cut under her right eye. The area around her eye was "black" and "puffy." Officer Horne asked Jones where she had been previous to the injury. She told him that she had just been in apartment 3 at 12 American Legion Highway.⁸

The final two Commonwealth witnesses were Boston police Officers Lyndon Christian and Ricky Cooks, who testified to the events of August and November, 2000, previously described. The defendant called as his only witness Boston police Officer Hubert Valmond. He painted a very different picture of the April, 2001, incident. On April 6, 2001, he was dispatched to the defendant's apartment in response to a telephone call. As he arrived at the apartment building he was approached by Jones, who identified...