Commonwealth v. McMullin

79 N.E.3d 1111 (Table)

COMMONWEALTH

v.Donald MCMULLIN.

15-P-1038

Appeals Court of Massachusetts.

Entered: February 17, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this criminal case alleging a single violation of a G.L.c. 209A abuse prevention order (209A order) in 2010, the jury heard evidence of an alleged violation of that order in 2008 for which the defendant had already been tried and acquitted: so-called "acquittal evidence," which the Supreme Judicial Court has subsequently ruled is inadmissible. See Commonwealth v. Dorazio , 472 Mass. 535, 547-548 (2015). The jury also heard evidence of more than fifteen other prior bad acts. We conclude that the prejudice resulting from the acquittal evidence, together with the undue prejudice caused by the admission of extensive additional prior bad acts evidence without contemporaneous limiting instructions, created a substantial risk of a miscarriage of justice warranting a new trial.

Background . 1. The Commonwealth's case . The defendant was charged with a violation of a 209A order occurring on September 7, 2010. The victim (the defendant's ex-wife) began by testifying that in 2005, while they were still married, she obtained a 209A order prohibiting him from abusing or contacting her and requiring him to stay away from her home, her workplace, and her mother's home (all located in Needham), and fifty yards from her person. The order was extended annually thereafter and was made permanent in 2009. In June, 2010, the order was modified to require the defendant to stay away from the victim's new home on Central Avenue in Needham and 100 yards from her person. The order was in effect on September 7, 2010.

The victim next testified to a series of prior bad acts. She stated that on approximately December 1, 2007, while driving away from her boy friend's house at 1 A.M. , she saw the defendant walking alongside the street, stopped her car, and commenced what turned into an extended conversation. She testified that during the conversation, the defendant said, "[A] restraining order is just a piece of paper, and if ... someone wants to get you they will."¹

The victim then testified about a series of alleged encounters occurring after the December 1 incident, in late 2007 and early 2008. On ten or twelve occasions, the defendant had driven by either her boy friend's house or her mother's house, where she lived at the time and which was located on a cul-de-sac or circular street (hereinafter, "cul-de-sac"), off of any main routes. The victim testified that this typically occurred at approximately 3:30 P.M. as she arrived home from work, that the defendant typically drove by "very fast," that she usually did not call the police because she did not see the point, and that she could not remember the specific dates of any of these occurrences.²

She then testified to the acquittal evidence, concerning an incident that occurred on the evening of November 26, 2008. The victim testified that as she arrived at her mother's house, the defendant drove by the house very slowly and then proceeded to "zoom off." She got in her car, drove after him, and called the police in an effort to have him caught. Eventually he was stopped near the center of Needham.³

Additionally, the victim testified to a series of "maybe four" encounters, prior to the charged incident, in which she had seen the defendant on a side street near her home (Cynthia Road), "[s]itting over there and then he'll take off real quickly," so she had not called the police on those occasions. To her knowledge, the defendant did not know anyone living on Cynthia Road, nor were any businesses located there.

All of the above testimony regarding the previous encounters—two on specific dates, and two series of incidents totaling fourteen to sixteen encounters—was admitted without any pertinent objection by the defendant,⁴ and without any limiting instruction from the judge. Most of the evidence had been the subject of motions in limine, which we discuss infra .

Finally, the victim testified to the events underlying the charge the defendant faced at trial. She stated that on September 7, 2010, shortly after 3:30 P.M. , she returned from work and went to a store next door to her home on Central Avenue, where her boy friend worked. Not finding him there, she began to walk toward her boy friend's home, which was also located on Central Avenue next to the store and directly opposite where Cynthia Road intersected Central Avenue. As she walked, she looked across Central Avenue and saw a red Mustang automobile parked down Cynthia Road, thirty to fifty feet from the intersection. She recognized the Mustang as one she had previously seen the defendant driving.

The victim testified that on this occasion, as she kept walking, the Mustang pulled forward on Cynthia Road, almost but not all the way to the intersection with Central Avenue, and stopped. There was no traffic on that part of Central Avenue at the time. The driver's window was down and she saw the defendant in the car, staring at her. He seemed to stare for a long time, perhaps twenty to thirty seconds. "It was enough time for me to freeze." She described him as looking at her with "intense-looking, stare-me-down, daggery eyes" that made her afraid and unsure of what he was going to do. As the defendant stared from his car about thirty-five feet away, she ran back toward her house. The defendant then turned his car onto Central Avenue and drove off in the opposite direction, while she called the police.

The Commonwealth's only other witness was a Needham police sergeant, who testified that on September 7, 2010, in response to a call, he went to the scene of the incident and spoke to the victim. She was "upset and shaking ... very sad, her voice was trembling." He did not see the defendant at the scene or go to his house to speak to him. The officer also testified that the traffic on Central Avenue at that time on a weekday was typically light and that he had no contrary memory of the traffic on the day in question. The only conduct for which the defendant was criminally charged in this case took place that day.

2. The defendant's case . The defense theory was that the contact on September 7, 2010, was accidental or incidental and that the defendant took reasonable steps to end it. The defendant testified that he was living at his mother's Ardmore Road home and left the home that afternoon to drive to a store in the center of Needham. Ordinarily he would have driven south down Central Avenue to get there, but now that the victim lived on Central Avenue, in order to "avoid her house, avoid seeing her," he took a detour onto Cynthia Road, which turned off of Central Avenue north of the victim's home and rejoined it further south. He had previously "Googled" her address and Cynthia Road to make sure his route would keep him at least 100 yards away from her home, and he had found that the distance was 528 feet.

As he returned from the store along the reverse route, he stopped at the end of Cynthia Road, trying to get onto Central Avenue, which he testified was "a very busy street" with "almost stop and go" traffic at that time. As he awaited an opportunity to turn, he saw the victim across Central Avenue, walking or running straight toward him. When she stepped out onto Central Avenue, the traffic stopped, which allowed him to turn right onto Central Avenue; he did so "as quick as [he] could" and went home.

The defendant further testified that he did not try to get the victim's attention and that he was shocked to see her coming straight toward him. The red Mustang that he was driving was one that he had restored himself and only recently registered, so that this was the second day he had ever driven that car, the first time having been at night.

3. Motion in limine . Prior to trial the Commonwealth filed a motion in limine seeking a ruling that certain prior bad acts evidence would be admissible at trial. The defendant filed his own motion in limine seeking to exclude such evidence. The motion judge, who also presided at trial, allowed the Commonwealth's motion (and denied the defendant's motion) as to the incident occurring on December 1, 2007, and the series of incidents in 2007 and 2008, described in the Commonwealth's motion in limine as follows:

"Several other instances occurred in 2007 and 2008, in which the victim observed the Defendant as she was either entering or exiting from her boyfriend's home on Central Avenue in Needham. The victim observed the Defendant either drive slowly along the street glaring at her, or would park across the street from the home."⁵

Defense counsel objected at the hearing on the motion in limine that this was "not specific enough." She argued:

"I can't look into these incidences and determine whether there's alibi issues, whether he was actually in town at those times. Without being given any specific information about several instances, not even a certain number of them, that occurred over two years, there's really not a lot I can do on cross-examination with that witness. She can say it happened whenever, and there's not a lot I can do to rebut that without having some specifics of ... when they happened."

The judge also allowed the Commonwealth's motion as to the incident occurring on November 26, 2008, despite defense counsel's objection that the defendant had previously been criminally charged in connection with that incident and found not guilty.⁶ The judge did not have the benefit of the subsequent ruling in Dorazio , 472 Mass. at 547, that evidence of prior bad acts for which a defendant was tried and acquitted is inadmissible.

Discussion . 1. Admission of "acquittal evidence ." The use against the defendant of the incident of November 26, 2008, for which he had previously been found not guilty, was (although the judge could not have known it at the time), error in light of Dorazio . There, the Supreme Judicial Court held that "the collateral...