Commonwealth v. Alphas , 430 Mass. 8 ( 1999 )

Ireland, J.

After a jury trial, the defendant was convicted of four counts of stalking in violation of G. L. c. 265, § 43, a statute which proscribes two distinct types of stalking, stalking by harassment and stalking by following. On appeal, the defendant claims error in (1) the denial of his pretrial motion to dismiss; (2) certain jury instructions; (3) the exclusion of certain evidence; (4) the prosecutor’s conduct of cross-examination; and (5) remarks made by the prosecutor during his closing argument. The defendant also contends his trial counsel was ineffective. We transferred this case from the Appeals Court on our own motion. We affirm both the denial of the motion to dismiss and the convictions.

1. Facts. The jury were warranted in finding the following facts. The defendant and the victim were married in April, 1988, and were separated in May, 1991. They had one child at the time of their divorce in May, 1992. The final divorce decree became absolute on August 10, 1992. In the judgment, the parties agreed the defendant would “not follow [the victim] or harass her at her home or her place of employment,” and the judgment prohibited nonemergency verbal communication, specifically forbidding harassing telephone calls.¹

The defendant’s violent and threatening behavior began even before the final divorce judgment was entered. Throughout 1992, he harassed the victim, expressing his displeasure with her involvement with her fiancé, and verbally abused her by referring to her by sexually explicit slurs. In June, 1992, the defendant arrived at her house to visit their child on a nonvisi-tation day. Sometime later, he scared the victim by following her home from work. In September, she saw the defendant with his girlfriend at a shopping mall, and they both followed her between stores. The next day, the victim observed the defendant driving back and forth in front of her home. In December, 1992, the defendant inexplicably appeared at two of their child’s doctor’s appointments.

The defendant’s harassing behavior continued in 1993. In the spring, the victim and a coworker observed the defendant looking at her through her office window from across the street with binoculars. He did this at least four times. On another night, he followed her and a friend to two bars and then to her house, where he threatened to kill her. Another time he scared her by saying, “A single mother alone like this, with kids, strange things could happen.” One day, after picking up their daughter, the defendant, while verbally harassing the victim, backed his vehicle onto her lawn, leaving tire tracks. He carried a gun with him to the visitation pickups, and told their child at least a dozen times in the victim’s presence, “Somebody could get hurt.”

The defendant’s conduct became more threatening in 1994. In January, he again appeared unexpectedly at their child’s doctor’s office. The next day, he was abusive toward her on the telephone. In May, he verbally abused her once again, calling her a “bitch” and a “home wrecker.” In June, the defendant twice warned her to “be careful” because “[y]ou never know what could happen to a single mother alone with two girls in the house.” In early August, while the victim and her fiancé were shopping for engagement rings, she observed the defendant watching them through the store window. He then followed them after they left the store for approximately three miles. Twice in October he threatened her, once saying: “You’ll get yours you bitch,” and “You’re going to get yours and I’ve had it with this shit.” In November, the defendant again followed the victim and her family as they drove on the highway for several miles.

The defendant again followed and harassed the victim on several occasions in 1995. Five times between March and June, the defendant verbally abused the victim by telephoning her or confronting her at home or in the community. In three of these encounters, he threatened to kill her, stating once: “I’m going to kill you” and “You’re going to see. I’m going to get you.”

In May, the defendant was at their child’s school when the victim picked up their child. He then followed her to a shopping mall. On Mother’s Day, he followed the victim’s family to church, entered the church during the service and stared at her, then, when the family left in an attempt to get away from him, he followed them to a restaurant. In late June, the defendant followed the victim and her family on the highway for at least twenty miles, driving behind and beside their car. They feared he was going to use his gun because he kept one hand hidden as he drove alongside them.

The defendant used a scanner to listen to her telephone calls and bragged about this to a friend. Beginning in June, 1995, the defendant also videotaped his encounters with the victim.

2. The defendant’s motion to dismiss. Prior to trial, the defendant moved to dismiss two counts, those for stalking by harassment in violation of a court order and for following in violation of a court order, because there was no order in effect against him when he was alleged to have committed the acts. He claimed that he could not be guilty under G. L. c. 265, § 43 (b), without violating one of the orders listed in the statute.² The District Court judge denied the defendant’s motion because he concluded that the stay-away order in the divorce judgment was the equivalent of a G. L. c. 208, § 18, order, and violation of it satisfied § 43 (b). We largely agree with the judge, and conclude that it was not error to deny the defendant’s motion.

The defendant was in violation of an order that was part of the divorce judgment. As discussed in a recent case, see Champagne v. Champagne, 429 Mass. 324, 326 (1999), this order was entered pursuant to the Probate and Family Court’s authority under G. L. c. 208, § 18, which provides, in part, that “the [Probate and Family Court] may make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty.” By doing what he agreed not to do, the defendant violated § 18, one of the enumerated orders that supports a conviction of stalking in violation of a court order under § 43 (b).³

3. Jury instructions on stalking. Under G. L. c. 265, § 43 (a), inserted by St. 1992, c. 31, one who “willfully, maliciously, and repeatedly follows or harasses another person and who makes a threat with the intent to place that person in imminent fear of death or serious bodily injury shall be guilty of the crime of stalking.” The statute addresses both stalking by harassment and stalking by following.⁴

In Commonwealth v. Kwiatkowski, 418 Mass. 543 (1994), we concluded that the portion of the stalking statute that addressed harassing conduct was unconstitutionally vague because it did not “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” Id. at 547, quoting Opinion of the Justices, 378 Mass. 822, 826 (1979). The specific problem was ambiguity in the word “repeatedly” within the definition of harassment, which confused whether á violation required one series of acts alone or multiple patterns of conduct. See id. at 546. We interpreted the statute in a manner that resolved any ambiguity, and concluded that the new definition was to be applied after the date the opinion was released, August 3, 1994.⁵ Because the statute contemplates two different types of stalking, we noted that the prospective definition we announced in Kwi-atkowski applied only to stalking by harassment, not to stalking by following. See id. at 546 (“To be guilty under the ‘harassment’ aspect, as opposed to the ‘following’ aspect . . .”) and id. at 547 (addressing only “the portion of the stalking statute concerning harassing conduct”).

(a) Stalking by harassment. The defendant claims the judge erred by not instructing the jury that he could not be convicted of stalking by harassment or of stalking by harassment in violation of a court order, for acts committed prior to August 4, 1994. We agree with the defendant that the judge should so have instructed the jury, and that his convictions for stalking by harassment and for stalking by harassment in violation of a court order could only be based on offenses committed after August 3, 1994. See id. at 547. Because the defendant did not object to the jury instructions, we must determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Delaney, 425 Mass. 587, 595-596 (1997), cert. denied, 522 U.S. 1058 (1998), and cases cited; Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

We take this opportunity to address the standard of review applicable to unpreserved trial errors in cases other than capital cases on direct appeal, the so-called Freeman standard, which recently has been the subject of comment in our courts. See, e.g., Commonwealth v. Eason, 43 Mass. App. Ct. 114 (1997), S.C., 427 Mass. 595 (1998). An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not “materially influence!]” the guilty verdict. Commonwealth v. Freeman, supra at 564. In making that determination, we consider the strength of the Commonwealth’s case against the defendant (without consideration of any evidence erroneously admitted⁶), the nature of the error, whether the error is “sufficiently significant in the context of the trial to make plausible an inference that the [jury’s] result might have been otherwise but for the error,” Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), and whether it can be inferred “from the record that counsel’s failure to object was not simply a reasonable tactical decision.” Id.⁷ Applying this standard to this case, we conclude that the erroneous instructions do not warrant reversal of the convictions on those counts.

Failure to instruct the jury to consider only acts committed after August 3, 1994, in their deliberations on the counts of stalking by harassment and stalking by harassment in violation of a court order was error. Acts prior to August 4, 1994, cannot form the basis of his conviction of either of these two counts. See Commonwealth v. Kwiatkowski, supra at 547.

Here, the case against the defendant was virtually irrefutable. Facts in the record support the convictions based solely on acts committed after the Kwiatkowski case. Specifically, the jury were warranted in finding the defendant harassed the victim at least eight times after August 3, 1994. This “campaign of harassment,” Commonwealth v. Matsos, 421 Mass. 391, 399 (1995), included two threats in October, 1994; five instances of harassment in 1995; and the harassment of the victim and her family on Mother’s Day, 1995.

As to the nature of the error, the erroneous instructions were problematic because the jury never should have considered the evidence of pre-August 4 behavior. That evidence, however, was cumulative of correctly admitted evidence that was clearly sufficient to convict the defendant. Given the amount and strength of the evidence of post-August 3 behavior, we cannot conclude the error raises an inference that the jury verdict might have been otherwise. We also are unable to infer from the record that defense counsel’s failure to object to the jury instructions was a reasonable tactical decision.

In sum, given the formidable evidence of harassment perpetrated by the defendant after August 3, 1994, the judge’s failure to prohibit the jury from considering acts occurring prior to the Kwiatkowski decision did not create a substantial risk of a miscarriage of justice.

(b) Stalking by following. The defendant argues the judge erred when instructing the jury concerning the charge of stalking by following and by following in violation of a court order. Because the defendant did not object to the instruction, we also review this claim to determine if it created a substantial risk of a miscarriage of justice. See Commonwealth v. Delaney, supra at 595-596; Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

Specifically, the defendant challenges the judge’s instructions concerning the definition of “repeatedly.” In order to convict the defendant under the following prong of the stalking statute, the jury had to find that he “willfully, maliciously, and repeatedly follow[ed]” the victim. G. L. c. 265, § 43 {a), inserted by St. 1992, c. 31. The judge told the jury that “[t]he term repeatedly means, at least twice. Therefore, the Defendant must have followed [the victim] more than two times.” These instructions were confusing and contradictory because it is not clear if the jury were told to decide whether the defendant followed the victim two times or whether he followed her three or more times.

The judge should have instructed the jury that the Commonwealth had to prove there were more than two incidents of following. In Commonwealth v. Martinez, 43 Mass. App. Ct. 408, 411 (1997), the Appeals Court, interpreting stalking by following under G. L. c. 265, § 43, concluded that “repeatedly” “require[s] more than two incidents of following.” We agree with the defendant that the jury should have been instructed to determine whether the defendant followed the victim more than two times because the defendant is entitled to the benefit of any ambiguity in the statute. See Commonwealth v. Wotan, 422 Mass. 740, 742 (1996) (concerning proper definition of “repeatedly” in the statute prohibiting harassing telephone calls).

Despite the judge’s failure to instruct the jury properly, any error in jury instructions could not have created a substantial risk of a miscarriage of justice because the defendant’s convictions were based on more than two incidents of following. Here, evidence of following was overwhelming. The jury were warranted in finding the defendant followed the victim at least eight times.⁸ The convictions of the defendants in Commonwealth v. Wotan, supra, and Commonwealth v. Martinez, supra, by contrast, were based on only two incidents so the confusion in the instruction in those cases warranted reversal of the convictions. Such is not the case here.

4. Ineffective assistance of counsel. The defendant asserts that his trial counsel was ineffective because he failed to object, first, to the jury instructions that did not address the August 3, 1994, distinction based on the Kwiatkowski case, and second, to the prosecutor’s closing argument in which, the defendant alleges, he stated both that the defendant could be convicted of acts occurring as long ago as 1992 and that the jury were warranted in considering the cumulative effect of all the defendant’s conduct, including what he did prior to August 4, 1994. He seeks reversal of his convictions based on trial counsel’s performance.

We review these claims of ineffective assistance of counsel to determine whether defense counsel’s conduct fell “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). As to the defendant’s first point, defense counsel was not deficient for failing to object to the prosecutor’s closing statement. The prosecutor did not stress events prior to August 4, 1994, in relation to the harassment counts, and behavior prior to that date was admissible on the following counts. As to his second claim, an ordinary lawyer representing this client would have understood Kwiatkowski and would have objected to the lack of an instruction, in regard to the harassment counts, concerning acts prior to August 4, 1994. Any potential prejudice resulting from defense counsel’s performance, however, is immaterial because of our conclusion that the defendant would have been convicted even if the jury had considered only evidence of acts occurring after August 3, 1994. See Commonwealth v. Egardo, 426 Mass. 48, 52 (1997), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (“there ought to be some showing that better work might have accomplished something material for the defense”).

5. Evidence of prior applications for protective orders. The defendant alleges the judge erred by precluding him from questioning the victim on cross-examination about her prior applications for protective orders. He asserts that evidence of prior applications was admissible to demonstrate his state of mind, and that it would have tended to show that he did not know his conduct was improper because his previous acts had not convinced other courts to issue protective orders.

Trial judges have wide discretion to determine whether evidence is relevant or unreasonably prejudicial. See Commonwealth v. Fernandes, 427 Mass. 90, 96 (1998), citing Commonwealth v. Dunn, 407 Mass. 798, 807 (1990); Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998), and cases cited. The judge did not abuse her discretion here because evidence that another court did not grant a protective order is irrelevant to determine whether the defendant is guilty of stalking in this case. The only order relevant to the charges here was the order contained in the divorce judgment. The victim’s attempts to secure a protective order were irrelevant to the issue whether the defendant was aware that he was violating the order in the divorce judgment. In addition, the judge was warranted in excluding the evidence because it would have diverted the jury’s attention to a collateral matter, circumstances surrounding applications for protective orders.

6. Cross-examination of the defendant. The Commonwealth admits the prosecutor should not have asked the defendant on cross-examination to assess the credibility of the Commonwealth’s witnesses. Because the defendant did not object to the prosecutor’s questions, we review the alleged error to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Whelton, 428 Mass. 24, 26 (1998).

The prosecutor violated the “fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.’ ” Commonwealth v. Triplett, 398 Mass. 561, 567 (1986), quoting Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). In Triplett, a new trial was ordered, pursuant to G. L. c. 278, § 33E, because the defendant was questioned about the credibility of his mother, the only witness to the murder. We emphasized the additional impropriety of the Commonwealth’s “[pjitting mother against son,” by forcing the defendant to comment on his own mother’s testimony. Id. at 567. We concluded that the questioning created a substantial likelihood of a miscarriage of justice, id. at 564, because the critical issue before the jury was “whether to accept the version [of events] given by the mother or that given by her son.” Id.

The record reveals that the defendant was questioned inappropriately thirteen times. The questioning can be categorized into three different groups. First, on seven occasions the prosecutor asked the defendant whether an event had happened.⁹ These are similar to questions we concluded were not prejudicial in Commonwealth v. Wright, 411 Mass. 678, 687 (1992). In that case, the prosecutor read a witness’s statements made during a telephone call, and asked the defendant about the truth of each statement. We concluded that “[no harm] came from what the prosecutor did. He could have asked the defendant, point by point, about the truth of each fact asserted in the statement.” Id.

Four questions comprise a second group of instances where the prosecutor asked the defendant if what another witness had stated was correct.¹⁰ These are similar to questions from other cases that did not create a substantial risk of a miscarriage of justice because they “did not create an issue of credibility between the defendant and other witnesses.” Commonwealth v. Richenburg, 401 Mass. 663, 674 (1988). See id. at 673 n.4 (listing examples of questions posed). It is not improper “for the prosecutor to point out, through this line of questioning, that there were inconsistencies between the defendant’s testimony and that of [a witness], so long as the defendant was not asked to assess the credibility of the [witness’s] testimony.” Commonwealth v. Johnson, 412 Mass. 318, 327-328 (1992).

Q.: “So when [the victim and her husband] indicate that they saw you have a gun in your belt or show them the gun, they were wrong?”

A.: “Yes they were wrong.”

In a third group, the prosecutor twice asked the defendant whether another witness lied in their prior testimony.¹¹ The questioning was less severe than in Commonwealth v. Long, 17 Mass. App. Ct. 707 (1984), where the Appeals Court ordered a new trial because, in part, the prosecutor asked “at least a hundred improper questions on a cross-examination which covered over one hundred pages of the transcript.” Id. at 708. The present case is more similar to others in which a new trial was not ordered because the prosecutor asked the defendant only one impermissible question. See Commonwealth v. Elam, 412 Mass. 583, 586 (1992); Commonwealth v. Ward, 15 Mass. App. Ct. 400, 401 n.2 (1983). Any potential harm to the defendant was lessened because he was able to respond without characterizing the other witness’s testimony as truthful or false. See Commonwealth v. MacKenzie, 413 Mass. 498, 515 (1992) (no substantial likelihood of miscarriage of justice where defendant had option not to allege witness was lying); Commonwealth v. Elam, supra (no prejudicial error where defendant, when asked if witness was lying, explained his own actions and did not speculate).

In sum, we are convinced from our review of the record that the prosecutor’s questioning was more likely “designed to serve the proper purpose of ‘eliciting] an explanation of differences from prior testimony,’ ” Commonwealth v. Dickinson, 394 Mass. 702, 707 (1985), quoting Commonwealth v. Donovan, 17 Mass. App. Ct. 83, 88 (1983), than it was intended to “transform!] the interrogation stage of the trial into the phase traditionally reserved for argument and summation.” Commonwealth v. Long, supra at 709-710. The prosecutor’s questioning in this case troubles us, but we cannot say that, when faced with overwhelming evidence against the defendant, the questions create a substantial risk of a miscarriage of justice.

7. The prosecutor’s closing statement. Nothing in the defendant’s arguments concerning the prosecutor’s closing statement provides a sufficient reason to order a new trial or a reversal of his convictions. Because the defendant did not object to the prosecutor’s closing argument, we have reviewed the prosecutor’s statement to determine if it created a substantial risk of a miscarriage of justice. See Commonwealth v. Pearce, 427 Mass. 642, 646 (1998), citing Commonwealth v. Loguidice, 420 Mass. 453, 455-456 (1995). We conclude that it did not. As discussed above, the prosecutor did not relate events prior to August 4, 1994, to the harassment counts, and he was permitted to address that behavior as it applied to the following counts.

Judgments affirmed.

1 The judgment of divorce nisi read in part: “[B]y agreements of said parties said defendant be and hereby is prohibited from imposing any restraint on the personal liberty of said plaintiff; he shall not follow her or harass her at her home or her place of employment; there is to be no verbal communication between said parties except for an emergency concerning the minor child. Both parties are restrained from making harassing telephone calls.”

2 General Laws c. 265, § 43 (b), inserted by St. 1992, c. 31, in part, read:

“Whoever commits the crime of stalking in violation of a temporary or permanent vacate, restraining, or no-contact order or judgment issued pursuant to sections eighteen, thirty-four B, or thirty-four C of chapter two hundred and eight; or section thirty-two of chapter two hundred and nine; or sections three, four, or five of chapter two hundred and nine A; or sections fifteen or twenty of chapter two hundred and nine C or a temporary restraining order or preliminary restraining or permanent injunction issued by the superior court, shall be punished

3 The defendant could not be prosecuted, however, under G. L. c. 208, § 34C, which requires law enforcement officers to serve the defendant with a copy of the order, and for the order to explicitly state that “VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.” Satisfaction of the extra-statutory protections under § 34C is not a prerequisite to prosecution under the stalking statute. Violation of § 34C is a separate offense from one under § 43 (b). Section 34C states that “[c]riminal remedies provided herein are not exclusive and do not preclude any other available civil or criminal remedies.”

4 In addition, under G. L. c. 265, § 43 (b), stalking by harassment and stalking by following are lesser included offenses of stalking by harassment in violation of a court order and stalking by following in violation of a court order, respectively. See note 2, supra.

5 This definition has been preempted by subsequent amendments to the statute. See St. 1996, c. 298, §§11, 12.

6 Excluding improperly admitted evidence from our consideration of the Commonwealth’s case is necessary because this evidence should not weigh against the defendant where it would not have been admitted but for the error. For instance, a substantial risk of a miscarriage of justice could still exist where a defendant is convicted based on compelling evidence, none of which should have been admitted at trial. See Commonwealth v. Freeman, supra at 563 (substantial risk of miscarriage of justice exists where “court would have unanimously ordered a new trial if an exception had been saved”). Cf. Commonwealth v. Amirault, 424 Mass. 618, 650 (1997), quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).

7 The standard of review for objected-to trial errors, by contrast, concerns whether “the conviction is sure that the error did not influence the jury, or had but very slight effect .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

8 Because Commonwealth v. Kwiatkowski, 418 Mass. 543 (1994), addressed only stalking by harassment, the jury could consider evidence of stalking by following before and after August 4, 1994.

9 Two examples of these questions follow:

Q.: “Yeah. But in the spring of 1993, [the victim] testified that in the spring of 1993 you were watching her through a window when she was at work. You heard her say that, right?”

A.: “I heard her say that?”

Q.: “Okay. But your testimony is that never happened?”

A.: “True.”

Q.: “And she says she saw you looking at her across the street too?”

A.: “Yes.”

Q.: “Never happened, right?”

A.: “It never happened.”

10 An example of these questions is:

11 The two questions were:

Q.: “Now, [the victim and her friend] testified about an incident at [a restaurant] in the summer of 1993, in which they walked in or they were there and you walked in and were looking at them.”

A.: “They testified to that, yes.”

Q.: “All right. And you have no recollection of that?”

A.: “I was not there."

Q.: “You were not there?”

A.: “No I wasn’t.”

Q.\ “They must be lying!”

A.: “I’ve never been to [that restaurant].”

Q.: “Now [the victim] indicated you were looking through the window of the jewelry store?”

A.: “That’s what she said.”

Q.: “Do you recall that?”

A.: “It didn’t happen. It wasn’t me.”

Q.\ “It didn’t happen. She (inaudible)?”

A.: “She certainly did.”

Q.: “[Her husband] made that up!”

A. “I don’t think his testimony was the same as hers.''