Commonwealth v. Oberle , 476 Mass. 539 ( 2017 )

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SJC-12149
COMMONWEALTH vs. WILLIAM OBERLE.
Norfolk. December 8, 2016. - February 28, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Assault and Battery. Kidnapping. Jury and Jurors. Practice,
Criminal, Jury and jurors, Challenge to jurors. Evidence,
Prior misconduct.
Indictments found and returned in the Superior Court
Department on September 17, 2014.
The cases were tried before Raymond J. Brassard, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Merritt Schnipper for the defendant.
Michael McGee, Assistant District Attorney, for the
Commonwealth.
BOTSFORD, J. The defendant, William Oberle, appeals from
three assault and battery convictions, G. L. c. 265, § 13A (a),
and a kidnapping conviction, G. L. c. 265, § 26, arising out of
an incident of domestic violence. The defendant argues that the
2
trial judge erred in denying his peremptory challenge of a
female juror and in admitting prior bad act evidence. We reject
both arguments and affirm the judgments of conviction of assault
and battery. The defendant also argues that there was
insufficient evidence to support his kidnapping conviction. We
are unpersuaded, and affirm that conviction.
1. Background. a. Facts. Because the defendant
challenges, in part, the sufficiency of the trial evidence, we
summarize it in the light most favorable to the Commonwealth.
Commonwealth v. Latimore, 378 Mass. 611, 676-677 (1979). The
defendant and the victim began a romantic relationship in the
summer of 2013. The defendant made the victim feel
uncomfortable and insecure, and prevented her from looking at or
speaking with others in public. In February, 2014, the victim
went to a hospital emergency room with bruising to her ears,
face, neck, and arm after the defendant had beaten and strangled
her. As he wrapped his hands around her neck during that
incident, the defendant told the victim he was going to kill
her.
The couple soon reconciled and moved together to the home
of the defendant's daughter in Dedham. They occupied a bedroom
in the basement of the house, which had a private back door and
3
a shared exit through the first-floor kitchen.1 Although their
relationship briefly stabilized following the move, the
defendant's physical abuse of the victim resumed, and the
defendant struck the victim's face on multiple occasions. The
victim struggled with alcohol and was intoxicated daily during
this period.
On July 4, 2014, the defendant and victim argued because
the defendant refused to return the victim's bank card, an act
she took as a sign that he was again using drugs. Following the
argument, the defendant left; the victim stayed home, drank
several beers, and went to bed. When the defendant returned to
the house after midnight, the argument escalated. The defendant
punched the victim's face, chest, and legs. He held her down
and choked her, saying he would kill her. The victim was unable
to call for help because the defendant had taken her cellular
telephone the day before.
The victim lost consciousness for an unspecified period of
time. When she woke up, the defendant was still on top of her,
shouting, with his hands around her neck. The victim was unsure
how she got away or how much time had passed, but recalled that
there was daylight when she ran out the back door of the
basement. Barefoot, bleeding, and wearing only her pajamas, she
1
The defendant's daughter and grandson lived on the first
floor. A roommate also lived upstairs.
4
ran across the street and hid in the garage of a rental car
business. The defendant initially remained in the basement
bedroom, but the victim saw him walk down the driveway as she
waited for the business to open so that she could telephone the
police.
Matthew Kronk arrived to open the rental car business at
approximately 7:30 A.M. The victim approached Kronk to ask for
help, and he telephoned 911. Paramedics and Dedham police
officers responded to the scene and brought the victim to the
hospital, where her injuries were photographed. They included
bruising to the arm and left eye, bleeding in the nose and ear,
and neck abrasions. The victim's treating physician opined that
these injuries were consistent with multiple blows to the face
and body, and with strangulation.
b. Procedural history. The defendant was indicted on
charges of attempted murder, kidnapping, witness intimidation,
and four counts of assault and battery. At the close of the
Commonwealth's case, the defendant moved for a required finding
of not guilty on the charges. The judge allowed the motion in
relation to the charge of witness intimidation but denied it for
the remaining charged crimes. The defendant renewed his motion
at the close of the defense case, and it was again denied.
The jury acquitted the defendant of attempted murder and
one of the assault and battery charges, and convicted him of
5
kidnapping and three counts of assault and battery.2 The
defendant filed a timely notice of appeal, and we allowed his
application for direct appellate review.
2. Discussion. a. Peremptory challenges. We begin by
summarizing what happened at trial during jury selection. After
directing a series of questions to the jury venire as a group
and noting their answers, the trial judge conducted an
individual voir dire of every prospective juror called. Both
counsel and the defendant were present at sidebar for the
judge's individual juror questioning, and the judge required
counsel to raise any peremptory challenge to a prospective juror
immediately after the judge completed his questioning.
The judge excused for cause the first prospective juror
called (juror no. 1), a woman, because her close friend's recent
experience with domestic violence was likely to influence her
thinking. Juror no. 2, a man, was seated. The defendant
exercised a peremptory challenge to juror no. 3, a woman who was
a college sophomore. Juror no. 4, a woman with at least twenty-
three years' professional experience, was seated without
challenge. The judge excused jurors nos. 5 and 6, both of whom
2
The judge sentenced the defendant to from three and one-
half to five years in State prison on the kidnapping conviction,
and to ten years' probation on each of the assault and battery
convictions; the probationary sentences were concurrent with
each other, from and after the defendant's prison sentence on
the kidnapping conviction.
6
were women whose family or friends had been victims of domestic
violence. The defendant exercised his second peremptory
challenge to juror no. 7; she was a college student studying
criminal justice who had "lost faith" in "the system."
The defendant exercised his third peremptory challenge to
juror no. 8, the seventh woman out of the first eight
prospective jurors called. The judge allowed the challenge.
Before doing so, the following exchange between the judge and
the defendant's counsel took place:
The judge: "Counsel, I think there's a pattern of excusing
female jurors. This is the second one or the third; one of
them I think I understand. The juror we had a few moments
ago spoke about knowing people in prison and the like. But
I think there's a clear pattern here of excusing younger
female jurors. [Juror no. 8], like the others you excused,
they were all in their twenties, perhaps early thirties at
the oldest. And I'm going to make that finding and require
you give me a reason."
Defense counsel: "Okay. I'd suggest that I have had no
choice but to excuse female jurors because that's all we've
had up here except we had one man up here so far. We have
excused one because we had clear questions about her
ability to be unbiased; she said so right in the report.
The other two my client did not feel comfortable with. We
have a lot of female -- "
The judge: "'Not feeling comfortable' is not going to do
it."
Defense counsel: "Peremptories. It's a peremptory
challenge. If it was an even number of men and women that
we have been interviewing, but we've only interviewed, what
-- so we're interviewing -- we've allowed one on. So I'd
suggest that we've been completely unbiased in the way that
we've chosen. We had no alternative other than to excuse
women because that's all we've been faced with is women, so
-- "
7
The judge: "There's no requirement to excuse good jurors,
whatever their gender. . . . I think there's a marked
pattern, [defense counsel]. I'm going to give you --
really lean over backwards and give you the benefit of the
doubt with this juror. But that will be the last one,
because what you have given me by way of explanation is
wholly inadequate. I don't doubt that you're being
truthful; I have no reason to doubt that. But the
substance of what you've explained is that there is no
substance to it, none whatsoever."
The next seven prospective jurors called were five men and
two women. Of this group, two men and one woman -– a person
with fourteen years' experience as an elementary school teacher
-- were seated without challenge. The judge excused one man due
to a scheduling conflict, and the Commonwealth exercised
peremptory challenges with respect to two other men. The
defendant sought to exercise a peremptory challenge to the next
prospective juror called, juror no. 15, a thirty-eight year old
woman with fifteen years' experience as a teacher and then a
teacher recruiter for a company offering early childhood
education and care. When the judge asked the juror about her
exposure to domestic violence, she stated that she had filed
three reports of child abuse during her time as a teacher. This
exchange followed:
Defense counsel: "We will exercise a peremptory challenge
based on her answers to your questions, based on what she
has done for [fifteen] years, based on the fact she saw
51As on three occasions, giving her intimate knowledge of
that whole aspect of the world of a cycle -- "
8
The judge: "There's no 51A issue here."3
Defense counsel: "No, but that is a field that deals with
abuse, deals with aggression, deals with violence within
families, within relationships, and that is something she
has intimated now she has a very good knowledge of. It's a
knowledge well enough that she has filed 51As on three
occasions. And that's the basis of our -- and note that
she's a [thirty-eight year] old lady, so she's older than
just a young girl. And I think our challenge is merited."
The judge: "I'm going to deny the exercise of that
peremptory challenge. There is a pattern here. I think
that the defendant and counsel are seizing upon the
background of this particular juror, and I am not persuaded
that this is anything other than a pretext, respectfully;
and I think it's an effort to keep females off the jury.
It's a distinct pattern. And I have examined the juror
with care, perceive absolutely no basis or substance for
this challenge. So I'm going to disallow it."
Juror no. 15 was seated over the defendant's objection and
participated in the jury's deliberations.
There were ten men and five women remaining in the venire.
Of this group, the judge excused a man who knew one of the
witnesses, a man who believed people accused of domestic
violence were guilty, and a man who admitted to bias in favor of
police. The judge also excused a woman who was the director of
a residential program for women with addictions, explaining,
"[T]here may be some evidence to the effect that the alleged
victim, who is a female, had or may have had some sort of
drinking, alcohol issue." The defendant exercised his three
3
General Laws c. 119, § 51A, requires mandated reporters,
including teachers like juror no. 15, to report suspected child
abuse or neglect to the Department of Children and Families.
9
remaining peremptory challenges to two men and one woman in this
group. The judge allowed the defendant's challenge of the woman
(as well as the men), noting that women had been seated since
the blocked challenge to juror no. 15.
From a jury venire composed of sixteen men and fourteen
women, eight men and six women were seated; seven male and five
female jurors ultimately deliberated.
The defendant argues that the trial judge's denial of his
peremptory challenge to juror no. 15 constituted error, and
because the error was structural, it entitles him to reversal of
his convictions. Further, he argues that given the absence of
detailed findings, the judge's ruling warrants no deference on
review. The Commonwealth contends that the judge acted within
his considerable discretion in denying the defendant's challenge
and also made sufficient findings in support of that denial.
The record shows that the defendant's arguments are not without
some basis, but we conclude that the defendant's claim for
reversal must fail.
"Peremptory challenges cannot be used 'to exclude members
of discrete groups solely on the basis of bias presumed to
derive from that individual's membership in the group.'"
Commonwealth v. Rodriguez, 431 Mass. 804, 807 (2000), quoting
Commonwealth v. Soares, 377 Mass. 461, 488, cert. denied, 444
U.S. 881 (1979). A peremptory challenge may not be based on a
10
prospective juror's gender, because gender is a discrete
grouping defined in art. 1 of the Massachusetts Declaration of
Rights, as amended by art. 106 of the Amendments to the
Massachusetts Constitution. Soares, supra at 486 & n.29. See
Rodriguez, supra. However, age is not a discrete grouping
defined in the Constitution, and therefore a peremptory
challenge may permissibly be based on age. Commonwealth v.
Samuel, 398 Mass. 93, 95 (1986). Peremptory challenges are
presumed to be proper, but that presumption may be rebutted on a
showing that (1) there is a pattern of excluding members of a
discrete grouping and (2) it is likely that individuals are
being excluded solely on the basis of their membership in that
group. Commonwealth v. Issa, 466 Mass. 1, 8-9 (2013), and cases
cited. Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003),
and cases cited. The burden of making a prima facie showing of
a discriminatory pattern "ought not be a terribly weighty one."
Maldonado, supra at 463 n.4.
Once such a pattern is found, the burden shifts to the
party exercising the challenge to provide a "group-neutral"
explanation for it. Maldonado, 439 Mass. at 463. The judge
must then determine whether the explanation is both "adequate"
and "genuine":
"An explanation is adequate if it is 'clear and
reasonably specific,' 'personal to the juror and not
based on the juror's group affiliation,' . . . and
11
related to the particular case being tried. . . . An
explanation is genuine if it is in fact the reason for
the exercise of the challenge. . . . An explanation
that is perfectly reasonable in the abstract must be
rejected if the judge does not believe that it
reflects the challenging party's thinking."
(Citations omitted; emphases in original.)
Id. at 464-465.
An erroneous denial of a peremptory challenge is a
structural error, requiring reversal without a showing of
prejudice. See Commonwealth v. Hampton, 457 Mass. 152, 164-165
(2010), and cases cited. A trial judge has considerable
discretion in ruling on whether a permissible ground for the
peremptory challenge has been shown, and we will not disturb
that ruling so long as it is supported by the record.
Rodriguez, 431 Mass. at 811.
Here, it is true that when the judge first found a
discriminatory pattern at the point the defendant challenged
juror no. 8, seven of the eight prospective jurors who had been
called had been women, and the pattern he identified was based
on only two prior strikes of "young women." The judge's
articulated reason for finding a pattern is troubling in that,
as we previously noted, "[t]here is no constitutional basis for
challenging the exclusion of young persons." Samuel, 398 Mass.
at 95. Compare Commonwealth v. Jordan, 439 Mass. 47, 62 (2003)
(challenges based on combination of race and gender violate art.
12 of Massachusetts Declaration of Rights). But even assuming
12
for argument that there was no basis for finding an
impermissible pattern at the time the judge declared one, the
judge did not reject the defendant's peremptory challenge to
juror no. 8. Rather, the judge allowed the challenge, and the
juror was excused. By the time the defendant exercised another
peremptory challenge -- to juror no. 15, a thirty-eight year old
woman -- all three of the defendant's previous peremptory
challenges had been to women, and juror no. 15 would have been
the fourth out of four. And, significantly, the judge's
statements concerning the defendant's proffered challenge to
juror no. 15, quoted supra, indicate with reasonable clarity
that the pattern the judge found to exist was a pattern of
challenging women (his reference was to "females") as a group,
not a pattern based solely on young women -- i.e., age. Compare
Samuel, supra. Even though the venire contained a substantial
number of women and two women had previously been seated as
jurors, we are not persuaded that the judge abused his broad
discretion in finding an impermissible pattern at the point he
rejected the defendant's peremptory challenge to juror no. 15.
See Rodriguez, 431 Mass. at 811 (that women were
disproportionately represented in venire, had been seated on
jury, and remained in venire did not preclude judge from finding
that defendant lacked gender-neutral reason for peremptory
challenge).
13
Irrespective of when a pattern is initially found to exist,
once it occurs, the critical point of focus for the trial judge
as well as the appellate court turns to the adequacy and
genuineness of the explanation proffered by the party seeking to
exercise the peremptory challenge. See Maldonado, 439 Mass. at
465. Because a judge must find that both the adequacy and
genuineness prongs of the explanation are satisfied in order to
allow a peremptory challenge once a pattern has been identified,
see id. at 464-465, the judge's determination that either one
falls short is sufficient to support its denial. See
Commonwealth v. LeClair, 429 Mass. 313, 323 (1999) (affirming
judge's disallowance of peremptory challenge after judge found
it disingenuous). Here, unfortunately, the judge did not make
specific findings concerning the adequacy of the defendant's
proffered reason for challenging juror no. 15. But even if we
were to assume that the proffered explanation that juror no.
15's experience as a mandated reporter of child abuse qualified
as an individualized, group-neutral, and adequate explanation
for the challenge, the judge was not thereby obligated to accept
that explanation as genuine. See Maldonado, supra at 465. The
judge pointed out that there was no child abuse at issue in this
case, specifically found that the defendant's proffered
explanation for the challenge was a pretext for keeping women
off the jury, and denied the challenge for that reason. See
14
Commonwealth v. Curtiss, 424 Mass. 78, 82-83 (1997) (affirming
judge's disallowance of peremptory challenge of African-American
juror whose spouse worked for State child welfare agency, where
case did not concern child abuse). Although the judge clearly
should have addressed the adequacy of the defendant's proffered
reasons for challenging juror no. 15, we conclude that the judge
did not abuse his discretion in finding a lack of genuineness.4
We thus affirm the judge's denial of the defendant's peremptory
challenge to juror no. 15.
b. Sufficiency of the evidence of kidnapping. The
defendant claims that there was insufficient evidence to support
his conviction of kidnapping under G. L. c. 265, § 26.
Specifically, he argues that the Commonwealth failed to prove
any act of confinement or restraint beyond that inherent in the
underlying assaults and batteries. In reviewing this claim, we
consider the evidence introduced at trial in the light most
favorable to the Commonwealth, and determine whether a rational
4
We emphasize again that it is important that a judge make
the required separate and specific findings as to the adequacy
and genuineness of an explanation for the exercise of a
peremptory challenge once a pattern of improper exclusion has
been made. Because an erroneous denial of a peremptory
challenge constitutes structural error, Commonwealth v. Hampton,
457 Mass. 152, 164 (2010), it is critical that the record on
appeal reflect the judge's reasoning in order to allow for
appropriate appellate review. Cf. Commonwealth v. Issa, 466
Mass. 1, 11 n.14 (2013) (discussing importance of findings in
reviewing judge's allowance of prosecutor's challenge to
African-American juror).
15
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Latimore, 378 Mass. at 676-
677. We conclude that the Commonwealth offered sufficient
evidence of kidnapping independent of the assaults and
batteries, and accordingly, we affirm the defendant's kidnapping
conviction.
To prove a person guilty of kidnapping, the Commonwealth
must establish beyond a reasonable doubt that the person
"without lawful authority, forcibly or secretly confine[d] or
imprison[ed] another person within this commonwealth."5 G. L.
c. 265, § 26. "[T]he essential element of kidnapping is not the
level of violence but rather the defendant's forcible or secret
confinement or imprisonment of the victim against [her] will."
Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 334 (1999).
"Confinement is 'broadly interpreted to mean any restraint of a
person's movement.'" Commonwealth v. Boyd, 73 Mass. App. Ct.
190, 193 (2008), quoting Commonwealth v. Lent, 46 Mass. App. Ct.
705, 710 (1999). See Commonwealth v. Dykens, 438 Mass. 827, 841
(2003). It is not required that the Commonwealth prove a
specific intent to confine, Commonwealth v. Ware, 375 Mass. 118,
5
In contrast, assault and battery requires that the
defendant intentionally commit a "harmful [or] offensive
touching[]" of the victim, without justification or excuse. See
Commonwealth v. Burke, 390 Mass. 480, 482 (1983) (discussing
common-law crime of assault and battery, as codified at G. L.
c. 265, § 13A).
16
119-120 (1978), but the act of confinement must be independent
of the other crimes at issue, Boyd, supra at 195. As the
Appeals Court has explained:
"The consistent rule of the decisions is that
confinement, detention, or restraint exceeding the conduct
necessary for commission of the other charged offenses
constitutes independent, not incidental, conduct. In the
generic scenario of these cases, the perpetrator has
deceived or forced the victim into confinement enabling the
accomplishment of a grievous crime against the person of
the victim. In those circumstances, the confinement is
facilitation, and not duplication, of the further offense.
"The distinction is not a technicality. It embodies
the reality of the separate and specific injury inflicted
upon the trapped victim as a captive: the frustration and
indignity of detention; the experience of vulnerability and
helplessness; and the dread of an unknown ending."
Id. See Commonwealth v. Rivera, 397 Mass. 244, 253-254 (1986)
(declining to consider "confinement or asportation used as a
means to facilitate the commission of [the charged rape and
robbery] as merged in the substantive crime").
This case presents no basis for a departure from these
principles. Indeed, the evidence of confinement amounts to just
the "separate and specific injury" contemplated in Boyd. Here,
a rational juror could have found that the defendant told the
victim he was going to kill her, held her down by the throat,
and ignored her plea that he stop, and that she was unable to
call for help and attempted to leave but could not. The
victim's testimony also reasonably permitted a finding that she
had experienced difficulty breathing and ultimately lost
17
consciousness, and that when she regained consciousness, the
defendant was still on her, shouting, with his hands around her
neck. Finally, a rational juror could have concluded that the
victim attempted to leave the shared bedroom but for some time
could not, and that this confinement was protracted: although
it was dark when the entire incident began, it was light by the
time the victim escaped, barefoot, injured, and wearing only her
pajamas.
Particularly where "[a]ny restraint of a person's liberty"
has long been adequate (citation omitted), Dykens, 438 Mass. at
841, the evidence here of confinement independent of the other
charged crimes was sufficient to support the defendant's
conviction of kidnapping. See Commonwealth v. Brown, 66 Mass.
App. Ct. 237, 242 (2006) (evidence of confinement sufficient to
support kidnapping component of aggravated rape charge where
defendant poked victim with stick, threatened to kill her, and
prevented her from leaving); Lent, 46 Mass. App. Ct. at 710 &
n.5 (evidence sufficient to support kidnapping conviction where
defendant showed victim a gun, pulled her by her jacket, and
constrained her by holding onto her backpack while they walked
toward his truck, even where victim was able to escape before
being forced into vehicle).
c. Prior bad act evidence. Before trial, the Commonwealth
moved in limine to admit evidence, including photographs, of the
18
February, 2014, beating of the victim by the defendant. Defense
counsel argued that this was prior bad act evidence that would
be unfairly prejudicial and inflame the jury. The judge,
however, allowed the evidence as illustrative of "the entire
relationship between the two." At trial, the Commonwealth
introduced, over the defendant's objection, testimony from the
victim and Worcester police officer Jose Ortiz about the
February, 2014, incident, and three photographs of bruising on
the victim's face, neck, and arm resulting from the incident.
Each photograph was enlarged to poster size and displayed on
easels facing the jury during the victim's testimony. Seventeen
photographs of the July, 2014, incident were also admitted, with
ten similarly enlarged and displayed alongside the three
photographs of the February incident.
The judge gave a limiting instruction at the close of the
victim's testimony, telling jurors they were permitted to
consider evidence of the February, 2014, incident only "insofar
as [they] find it bears on . . . the relationship between the
witness and the defendant, the intent with respect to the events
at issue in this case, the motive, the absence of a mistake, or
the absence of accident." He repeated this instruction in his
final charge.
The defendant argues that the judge erred in admitting
evidence of the prior incident of alleged domestic violence
19
between him and the victim because the evidence was of the
defendant's prior bad acts and the probative value of that
evidence was outweighed by its unfairly prejudicial effect. We
disagree.6
Evidence of prior bad acts is not admissible to show a
defendant's bad character or propensity to commit the charged
crime, but may be admissible if relevant for other purposes such
as common scheme, pattern of operation, identity, intent, or
motive. Commonwealth v. Carriere, 470 Mass. 1, 16 (2014). Even
if such evidence is relevant for other purposes, however, its
probative value must not be outweighed by its prejudicial
effect. Commonwealth v. Crayton, 470 Mass. 228, 249-250 & n.27
(2014). See Mass. G. Evid. § 403 (2016). "Determinations of
the relevance, probative value, and prejudice of such evidence
are left to the sound discretion of the judge, whose decision to
admit such evidence will be upheld absent clear error."
Commonwealth v. Robidoux, 450 Mass. 144, 158-159 (2007), and
cases cited.
It is well established that in appropriate cases, a
defendant's prior acts of domestic violence may be admitted for
the purpose of showing a "defendant's motive and intent and to
depict the existence of a hostile relationship between the
6
The Commonwealth contends that the defendant failed to
preserve an objection to this evidence. The objection appears
to have been properly preserved.
20
defendant and the victim." Commonwealth v. Linton, 456 Mass.
534, 551 (2010), quoting Commonwealth v. Snell, 428 Mass. 766,
777, cert. denied, 527 U.S. 1010 (1999). See Commonwealth v.
Butler, 445 Mass. 568, 574 & n.6 (2005). Moreover, the
defendant's argument against admission ignores the fact that he
was separately indicted for attempted murder, a crime requiring
the Commonwealth to prove specific intent. See Commonwealth v.
Jordan (No. 1), 397 Mass. 489, 491–492 (1986). See also
Commonwealth v. Ormonde, 55 Mass. App. Ct. 231, 236-237 (2002).
Given the crimes with which the defendant was charged and the
relatively short period between the incidents, evidence of the
February, 2014, beating was probative of the defendant's mental
state and intent in relation to the victim at the time of the
July, 2014, offenses, and in our view, not unfairly prejudicial.7
See Jordan (No. 1), supra, and cases cited. "The fact that the
jury did not return verdicts of guilty on the [attempted murder
indictment] is not determinative of the admissibility of the
evidence." Id. at 492 n.4.
The defendant argues further that the photographs of the
prior bad acts were especially inflammatory and unfairly
prejudicial. This argument fails, given that "[t]he
7
It is not a foundational requirement for the admissibility
of prior bad act evidence that the Commonwealth show either that
the evidence is necessary or that there is no alternative way to
prove its case. See Commonwealth v. Copney, 468 Mass. 405, 413
(2014); Mass. G. Evid. § 404(b) (2016).
21
admissibility of photographic evidence rests almost entirely in
the discretion of the judge . . . [and] [i]t is a 'rare
instance[] in which the probative value of [such] evidence is
[so] overwhelmed by its inflammatory potential' that a reversal
would be warranted" (citation omitted). Commonwealth v.
Bradshaw, 385 Mass. 244, 270 (1982). See Commonwealth v. Bell,
473 Mass. 131, 142 (2015), cert. denied, 136 S. Ct. 2467 (2016)
(photographs admissible if relevant to material issue, and "are
not rendered inadmissible solely because they are gruesome [or
duplicative] or may have an inflammatory effect on the jury"
[citation omitted]). Here, the photographs of the February,
2014, incident were relevant to the defendant's intent as to the
incident occurring five months later in July, and the judge did
not abuse his discretion in finding that their probative value
outweighed any unfair prejudice to the defendant.8 See Bell,
supra at 144. Moreover, the judge sought to guard against the
photographs' potential prejudicial effect by carefully
instructing the jury, when the photographs of and related
testimony concerning the February, 2014, incident were
introduced in evidence and again during the final charge, that
8
Although we conclude that the photographic evidence
depicting the victim's injuries resulting from the defendant's
February, 2014, beating was properly admitted, we question the
appropriateness of permitting the prosecutor to display poster-
sized enlargements of the photographs, given the potential for
prejudice inherent in prior bad act evidence. See Commonwealth
v. Crayton, 470 Mass. 228, 249 n.27 (2014).
22
the evidence could be considered only on the issues of the
relationship between the victim and defendant and the
defendant's intent, motive, or absence of mistake or accident --
and not the defendant's propensity to commit the alleged crimes.
The judge did not err in admitting the testimony or the
photographs.
Judgments affirmed.