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Commonwealth v. Squailia3/2/1999
sychologist. The expert testified that the defendant had a dependent personality and, at the time of the shooting, suffered from depression which had been building for months; that the defendant had "several other very significant stresses"; and that, while the defendant was not mentally ill, he had serious psychological problems which affected him when he accidentally shot the victim.
The prosecutor, in her cross-examination of the defendant's expert, was met by objections from the defendant's trial counsel when she strayed over the boundaries of permissible cross-examination. By sustaining objections where appropriate, the Judge kept the cross-examination within proper limits. The defendant's expert himself corrected possible mischaracterizations of his testimony made by the prosecutor. The defendant has not shown that he was prejudiced by the prosecutor's cross-examination.
(d) One witness testified that the defendant had once threatened him with a baseball bat, stating he would beat the witness's head in because he suspected the witness "was trying to fuck his wife." This prior bad act evidence was properly admitted, within the Judge's discretion, as relevant to show the defendant's intent or his state of mind, and as some evidence tending to disprove that the killing was an accident. See Commonwealth v. Phinney, 416 Mass. 364, 375 (1993); Commonwealth v. Scott, 408 Mass. 811, 818-820 (1990). The Judge offered to give a limiting instruction on the testimony at the time it was introduced, but the defendant's trial counsel declined the offer, and he never requested an instruction later. "Contrary to the defendant's claim advanced here for the first time, the law does not require a Judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested by the defendant." Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992), and cases cited. There was no error in the admission of the testimony.
We also reject the defendant's argument that the prosecutor unfairly characterized the evidence in her closing argument. There was no objection to the argument by the defendant's trial counsel. The prosecutor's comments were based on the evidence, and, read in context, referred to the defendant's state of mind rather than his general character. See Commonwealth v. Daggett, 416 Mass. 347, 355 (1993).
(e) The killing occurred on August 31, 1993. The victim's brother testified that an incident occurred during the summer of 1993, when he was called to the home of the man supposedly having an affair with the victim. The victim, the defendant, and her suspected male friend were present. According to the victim's brother, the friend took him aside and said: "The reason [the victim] is here [at my home] is because she wants to leave [the defendant] and she doesn't know how to tell him because she is afraid of him." The friend also testified that the victim said, "I'm afraid," when the defendant arrived and found them together. The defendant's trial counsel did not object to this testimony. The defendant now argues that the testimony was improper. See Commonwealth v. Cyr, 425 Mass. 89, 93-94 (1997).
The testimony may have been properly admitted to rebut the defendant's claim that the victim was at her male friend's home on that day because she was pursuing her extramarital affair with him. See Commonwealth v. Magraw, 426 Mass. 589, 596 (1998). Even if it was error to admit the testimony, there is no substantial likelihood of a miscarriage of Justice. The evidence was fragmentary and not comparable to the substantial and repeated hearsay evidence of fear on the part of victims that was properly objected to, and led to the reversals of mu
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