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Commonwealth v. Squailia3/2/1999
ect to any document or item in it. The defendant's trial counsel declined the opportunity, stating, "I feel very sure there's nothing [prejudicial] in there. I never had a question about that."
The defendant now argues that the briefcase contained papers that were harmful to his case including, among other documents, a welfare application, information concerning past child support obligations, a copy of the divorce judgment from a prior marriage indicating that the divorce had been granted on the ground of cruel and abusive treatment, and information concerning a workers' compensation claim.
We have examined the briefcase and the papers in it. The prosecutor's general theory of relevance had merit, but the point she sought to establish could have been made without introducing the briefcase and its contents which included irrelevant papers and documents. It is important that the defendant's trial counsel declined the opportunity to examine the contents of the briefcase and to make a more specific objection or objections. We conclude that the defendant incurred no prejudice. The papers and documents represent for the most part the type of papers that most people keep in their desks or in some other secure place. They concern matters that occur in the course of an average person's life. The defendant's ex-wife testified and described the grounds for their separation (the defendant's involvement with the victim and "irreconcilable differences"), and she went on to state that, despite the divorce, she and her daughters continued to maintain a relationship with him. The divorce judgment, about which the defendant now complains, was cumulative of his ex-wife's testimony about the breakup of their marriage. We conclude that the contents of the briefcase could not have adversely affected the jury's consideration of the key issue of intent.
(b) The defendant's trial counsel sought to introduce the testimony of two witnesses who were business partners of the man with whom the victim was supposedly having an extramarital affair. After hearing a brief offer of proof from the defendant's trial counsel, the Judge excluded it. The defendant argues that the testimony would have supported his own testimony that he believed that the victim was having an affair and explained why his relationship with the victim had begun to deteriorate. He claims that the exclusion of the evidence caused prejudice.
The existence of an extramarital affair, by itself, would not excuse, justify, or mitigate the homicide. See Commonwealth v. Andrade, 422 Mass. 236, 237-238 (1996). What the two prospective witnesses might have testified to was disputed, and it was far from clear whether they could provide any relevant evidence. The offer of proof made by the defendant's trial counsel contained little probative information. The Judge indicated that he might be willing to hold a voir dire of the witnesses, but none was requested. There was no evidence that the defendant was aware of the information that the witnesses supposedly had possessed. It was the defendant's belief about the existence of an extramarital affair at the time of the killing that was the significant issue not whether such an affair was actually taking place. There was evidence that the defendant believed that the victim was having an extramarital affair. According to the defendant's testimony, the victim confirmed that she was involved with another man and intended to leave the defendant. The Judge had discretion with respect to the testimony of these witnesses, and he did not abuse his discretion in excluding it.
(c) The defendant argues that the prosecutor engaged in improper cross-examination of his expert witness, a forensic p
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