By the Court (Grainger, Carhart & Sullivan, JJ.), Clerk
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, the defendant, Jimmie Gresham, appeals his convictions of assault and battery in violation of a restraining order, assault and battery by means of a dangerous weapon in violation of a restraining order, and violation of an abuse prevention order. He also appeals from the denial of his motion for new trial. We affirm.
Discussion. 1. Instruction on consciousness of guilt. The defendant contends that the trial judge's instruction on consciousness of guilt was erroneous. Because the defendant failed to object to the instruction at trial, we review to determine whether the error, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. Kirker, 441 Mass. 226, 230 (2004).
Evidence was presented at trial that ten days before his arrest on October 6, 2009, the defendant appeared at his ex-girlfriend's apartment in violation of an outstanding restraining order, that he followed her while she was walking her dog, screamed at her, choked her twice, and kicked her in her back. He then appeared a week later in an attempt to contact her again. There was also evidence that when the police arrived at his home on October 6, 2009, the defendant was found hiding in a crawl space, ignored several orders to exit the space, crawled further away from the officers when ordered to exit, and eventually was removed forcibly from the crawl space.
In light of the evidence of flight, the trial judge was permitted to instruct regarding consciousness of guilt. See Commonwealth v. Toney, 385 Mass. 575, 583 (1983); Commonwealth v. Vick, 454 Mass. 418, 423-424 (2009). The defendant contends that the specific language in the instruction impermissibly referenced facts not in evidence and undermined his theory of defense, pointing to the following language: "You have heard evidence that the defendant may have fled after or tried to hide from the police after he discovered that he was about to be arrested for the offenses for which he is now on trial." The judge's introductory statement regarding the defendant's knowledge of the impending arrest highlighted one of the two predicates underlying "the inference of guilt that may be drawn from evidence of flight . . . that a person who flees or hides after a criminal act has been committed does so because he feels guilt concerning that act" (emphasis added). Toney, supra at 584. Clearly, it was permissible for the instruction to reference events of the previous week and one-half, and it was permissible to instruct the jury that it could (but was not compelled to) infer that the defendant hid from the police because he felt guilt concerning acts which he had committed. However, the phrasing of the instruction was arguably inartful to the extent that it suggested that the jury needed to find that the defendant knew at the time of flight the precise offenses with which he was later charged.
The defense at trial was that someone else had committed the acts. The defense does not preclude the instruction, which stated only that the inference of guilt "may" be drawn.
This interpretation of the instruction is literal at best, and strains common sense at worst. However, even if characterized as error, a question we need not reach, reading the instruction as a whole, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Petetabella, 459 Mass. 177, 184 (2011). The judge "fully complied with every recommendation contained in [Toney, supra at 585]." Commonwealth v. Williams, 56 Mass. App. Ct. 337, 346 (2002). The judge instructed the jury that they were not permitted to convict the defendant on the basis of the evidence of flight alone; that they were permitted, but were not required, to consider whether the evidence tended to prove the defendant's guilt; that there were numerous reasons an innocent person might flee and that such conduct did not necessarily implicate feelings of guilt; and that it was the role of the jury to consider and determine how much weight to give any inferences that might be drawn from the defendant's flight. As "[t]he charge adequately cautioned the jury concerning the equivocal nature of evidence of flight," any error in the instruction did not create a substantial risk of a miscarriage of justice. Toney, supra at 585.
2. Prior bad acts. The defendant first contends that evidence of a prior bad act in September, 2009, should not have been admitted because the Commonwealth failed to produce corroboration of the ex-girlfriend's testimony, and that corroboration was needed to established proof by a preponderance of the evidence. See Commonwealth v. Leonard, 428 Mass. 782, 785 (1999). The defendant also contends that evidence of the prior acts in both October, 2008, and September, 2009, was erroneously admitted because the probative value of the evidence was outweighed by the risk of unfair prejudice to the defendant. See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).
The witness's firsthand account of the September, 2009, incident was sufficient to support a preliminary finding by the trial judge, by a preponderance of the evidence, that the defendant did grab and bruise the witness in September, 2009. Cf. Commonwealth v. Latimore, 378 Mass. 671, 675 (1979). It was "thereafter for the jury to evaluate the evidence for 'its weight and credit.'" Leonard, supra at 786, quoting from Commonwealth v. Robinson, 146 Mass. 571, 582 (1888). Moreover, there was corroboration, i.e., photographs of her bruises taken immediately after the incident. The evidence of the October, 2008, choking and the September, 2009, grabbing and bruising were relevant to the issue of the relationship between the defendant and witness. "As the evidence was probative of the defendant's relationship with the victim and his [identity] . . . and not too remote, the judge acted within his sound discretion in determining that it was admissible and that its probative value outweighed its prejudicial effect." Commonwealth v. Rosenthal, 432 Mass. 124, 129 (2000). There was no error.
We have considered the defendant's remaining arguments and for the reasons stated in the motion judge's well-reasoned decision, we affirm.
Counsel for the defendant disassociated himself from two of the appellate arguments in Moffett prefaces. A Moffett preface is appropriate only in those circumstances where counsel is "ethically compelled" or deems it "absolutely necessary" to dissociate himself or herself from certain arguments. Commonwealth v. Moffett, 383 Mass. 201, 216 (1981). While it is not clear that the arguments here rise to such a level, the record does not reflect counsel's certification that the defendant was notified of counsel's disassociation from the arguments, as required by Moffett. Id. at 208. The Moffett prefaces are therefore stricken from the brief.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 23, 2015.