This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with eight crimes of domestic violence against his wife. After a Superior Court jury trial, he was convicted of three of the charges: assault and battery upon a pregnant person, intimidation of a witness, and assault and battery. We affirm.
The jury could have found the following facts. The defendant and the victim began living together in 1999 and were married in 2005. As early as 2003, their relationship was volatile. On November 22, 2007, while the victim was pregnant with their second child, the defendant and the victim got into an argument. The defendant put his hands around the victim's neck and squeezed until she lost consciousness and fell to the floor. The victim did not immediately report this incident because she did not want to get her husband in trouble.
In March, 2011, the victim woke up as the defendant was punching her in the side of her head. When she asked what he was doing, he replied, " If I really wanted to hurt you, I would hurt you. I was punching you in the head and you didn't even know." Thereafter, in April, 2011, the defendant thought he saw the victim looking at a black man in the car next to them while they were driving home. The defendant became angry, slapped the victim and berated her for looking at the man, saying, " You want a fucking nigger?" When they arrived home, the defendant continued to yell at the victim, and then slapped her face and punched her between her legs. As she tried to leave the room, the defendant hit her and pushed her into the counter. He then grabbed the victim by the neck with both hands and twisted her neck, while shouting at her. The victim was afraid that the defendant was going to kill her.
The victim was able to get free and called 911; but when the defendant threatened to " beat the living shit out of [her] right now," she told the 911 operator that she had called by mistake, and hung up the telephone. The defendant then left the house, and the victim called 911 again. The officer who came to investigate testified that he observed red marks on both sides of the victim's neck and that she appeared nervous and anxious. Later that morning, police saw the defendant driving in his van and arrested him near his home.
At trial, there was evidence of other incidents of violence between the couple. The victim testified that, in 2003, the defendant threw magazines at her face and broke her nose, but when she went for treatment, she gave the false explanation that her dog had bumped into her face, because, at the time, she believed her husband must have struck her by accident. In addition, there was evidence that, in 2009, the victim was arrested for kicking the defendant in the face after she found out that he was unfaithful, and in 2010, the victim bit the defendant's lip necessitating that he obtain stitches.
1. Evidence of 2003 incident.
The defendant argues that the trial judge erred in admitting testimony about the 2003 incident in which the defendant threw magazines at the victim. The defendant contends that this evidence was not relevant because the incident occurred several years before the charged offenses, involved dissimilar conduct, and may not have been intentional. We disagree. The evidence was probative of the hostile nature of the relationship over a span of years, see Commonwealth v. Butler, 445 Mass. 568, 575, 839 N.E.2d 307 (2005), as well as the victim's state of mind. There was no abuse of discretion.
2. Evidence of racial slur.
The defendant testified at trial. During direct examination he stated that the incident in April, 2011, did not occur as described by the victim. Among other things, the defendant said that he had not used a racial slur, was not a racist, and never used racist terms. In response, the Commonwealth introduced evidence that the defendant's Facebook password was a racial slur spelled backwards.
We reject the defendant's argument that evidence of the password lacked probative value and should not have been admitted. The evidence was admissible to impeach the defendant's credibility and to corroborate the victim's account of the April, 2011, incident. See generally Comm ...