Commonwealthv.Burns

COMMONWEALTH OF MASSACHUSETTS APPEALS COURTNov 17, 2017
17-P-20 (Mass. App. Ct. Nov. 17, 2017)

17-P-20

11-17-2017

COMMONWEALTH v. GLENN W. BURNS.


NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his convictions after a jury trial of three counts of violation of an abuse prevention order obtained by his former girl friend, Ellen. See G. L. c. 209A, § 7. The sole issue on appeal is the propriety of the judge's decision to exclude testimony by Ellen's husband that she had used numerous names and Social Security numbers. The judge ruled that the evidence was irrelevant and improper character evidence. We affirm.

A pseudonym. We identify her by a pseudonym in order to protect her identity in accordance with 18 U.S.C. § 2265(d)(3) (2012).

Absent some showing that the evidence was relevant to a proffered defense, testimony by Ellen's husband was admissible only for the prohibited purpose of impeaching her credibility and character by showing she had many names and identities. Generally, evidence of prior bad acts may not be used to impeach a witness's credibility. See Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993); Commonwealth v. Bregoli, 431 Mass. 265, 275 (2000). Nor is evidence of dishonesty generally admissible to impeach a witness. See Commonwealth v. Hightower, 400 Mass. 267, 271 (1987); Commonwealth v. Andrews, 403 Mass. 441, 459 (1988). Cf. Commonwealth v. Martin, 442 Mass. 1002, 1003 (2004) (prosecutor's improper references to defendant's aliases created substantial risk of miscarriage of justice); Mass. G. Evid. § 608(b) (2017). No question of identity was presented here. Compare Commonwealth v. Martinez, 458 Mass. 684, 697 (2011) (defendant's alias, Pinocchio, was relevant to identity). The defendant offered no other defense to which the evidence would be otherwise relevant. There was no error.

The judge ruled that the defendant could question Ellen regarding her use of aliases and Social Security numbers if he had a good faith basis for doing so. The defendant did not offer a defense based on mistake or accident to which the existence of aliases might have been relevant, and he did not cross-examine Ellen on this point.

Judgments affirmed.

By the Court (Sullivan, Blake & Singh, JJ.),

The panelists are listed in order of seniority. --------

/s/

Clerk Entered: November 17, 2017.