Commonwealth v. Julie A. Carlson.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-953

COMMONWEALTH

vs.

JULIE A. CARLSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of one count of larceny of property valued at

$1,200 or less in violation of G. L. c. 266, § 30 (1). On

appeal, the defendant argues that the trial judge (1) erred in

denying her motion for a required finding of not guilty,

(2) violated her right to present a complete defense by

excluding testimony, and (3) erred in admitting the defendant's

uncertified conviction records as impeachment evidence without

properly balancing their probative value against their

prejudicial effect. We affirm.

Background. We summarize the facts as the jury could have

found them, reserving some details for later discussion. In May
2022, through an online advertisement, the victim hired the

defendant to clean her home where she lives with two of her

adult children and two grandchildren. The victim testified that

the defendant cleaned the home twice without incident.

For the third visit, the defendant said she would arrive

between 10 and 10:30 A.M. Instead, at 9:30 A.M., the defendant

entered the victim's house unannounced, which the victim found

"unusual." While beginning to clean, the defendant insisted

that the victim could leave her in the house alone, to which the

victim responded that she was not "comfortable." The victim

said she would be in the garage. The defendant also asked if

the victim was home alone and continually inquired if the

victim's daughter was working in the basement. Although the

victim instructed the defendant to clean only the first floor of

the house, she found the defendant "a couple of times" on the

second floor with the bedroom drawers open. She also once

encountered the defendant in the living room with a desk drawer

open. Finally, the victim testified that when the defendant

went outside to smoke, she was "very aware" of the "Ring

[Doorbell] system"1 and asked the victim how it worked.

1 "Ring Doorbell" is "one brand of doorbell security
camera." United States v. Moore-Bush, 36 F.4th 320, 372 (1st
Cir. 2022), cert. denied, 143 S. Ct. 2494 (2023).

2
After the defendant left the home, one of the victim's

adult children discovered that a prescription acne medication

worth around fifty dollars was missing. That evening, the

victim also discovered "gray stuff" smelling of cigarette ash on

her medication container. The next day, the victim discovered

more missing items: a blank check from her checkbook, fifty

dollars in gift cards, 500 euros, some clothes, and concert

tickets. The victim called the Rochester police department to

report the missing items and that the defendant was at the home

the previous day cleaning the house. Some days later, the

victim realized she was missing two rings that were last seen in

a jar in the kitchen.

Discussion. 1. Sufficiency of the evidence. We review

the evidence in the light most favorable to the Commonwealth to

determine whether "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979).2 "Questions of

credibility are to be resolved in the Commonwealth's favor, and

circumstantial evidence is sufficient to establish guilt beyond

a reasonable doubt." Commonwealth v. Miranda, 458 Mass. 100,

2 The defendant moved for a required finding at the close of
the Commonwealth's case, and the question before us rests solely
on the state of the evidence at the close of the Commonwealth's
case.

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113 (2010), cert. denied, 565 U.S. 1013 (2011). Additionally,

"inferences a jury may draw from the evidence 'need only be

reasonable and possible and need not be necessary or

inescapable.'" Commonwealth v. Linton, 456 Mass. 534, 544

(2010), quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005).

Larceny, under G. L. c. 266, § 30 (1), requires the

Commonwealth to prove the "unlawful taking and carrying away of

the property of another with the specific intent to deprive the

person of the property permanently." Commonwealth v. St.

Hilaire, 470 Mass. 338, 343 (2015). Here, the Commonwealth

introduced evidence that the defendant entered the home early

and unannounced, inquired if the victim was home alone, and

encouraged the victim to leave the home while she cleaned.

Additionally, the defendant was found multiple times where she

was not supposed to be on the second floor with drawers open,

once on the first floor with a drawer open, and cigarette ashes

found on the victim's medicine container. Taken together, a

rational trier of fact could make a reasonable inference that

the defendant took the victim's items, specifically intending to

deprive her of them permanently.3

3 Additionally, the defendant relies on Commonwealth v. Lois
L., 59 Mass. App. Ct. 1101 (2003), an unpublished memorandum and
order issued pursuant to our rule 1:23 (formerly rule 1:28),
which is neither factually analogous nor binding. In that case,
there were two house cleaners, and the evidence was not

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2. Motion for mistrial. The defendant argues that the

trial judge abused her discretion by denying the defendant's

motion for a mistrial after striking prejudicial testimony by

the victim. "The decision whether to declare a mistrial is

within the discretion of the trial judge." Commonwealth v.

Torres, 86 Mass. App. Ct. 272, 280 (2014), quoting Commonwealth

v. Bryant, 447 Mass. 494, 503 (2006). "[I]n response to the

jury's exposure to inadmissible evidence, the judge may

correctly rel[y] on curative instructions as an adequate means

to correct any error and to remedy any prejudice to the

defendant" (quotation omitted). Torres, supra. Additionally,

"[j]urors are presumed to follow a judge's clear instructions

and disregard the testimony." Commonwealth v. Auclair, 444

Mass. 348, 358 (2005).

At trial, defense counsel moved for a mistrial following an

objection to the victim's testimony regarding the defendant's

statements about the defendant's "ex-husband or husband" being

in jail. The judge sustained the objection and struck the

testimony. While the judge also denied the motion, she

immediately provided the jury with a detailed curative

instruction on the stricken testimony and how it should no

longer be considered in their evaluation of the case. "Where a

sufficient to establish that Lois L., rather than the coworker,
was the thief or that they acted as joint venturers.

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party seeks a mistrial in response to the jury's exposure to

inadmissible evidence, the judge may rely on curative

instructions to correct any error and to remedy any prejudice.

As long as the judge's instructions are prompt and the jury do

not again hear the inadmissible evidence, as here, a mistrial is

unnecessary" (citation omitted).4 Commonwealth v. Garrey, 436

Mass. 422, 435 (2002).

3. Hearsay. The defendant points to several other hearsay

statements all of which were stricken by the judge save two.

The prosecutor each time asked the victim, in the jury's

presence, to keep her testimony to her own personal observation.

The judge also instructed the jury prior to the prosecutor's

opening statement and again in her final instructions before

deliberations that sustained objections are stricken from the

record and must be disregarded. As to the stricken statements,

we do not discern any prejudice. See Commonwealth v. Durand,

475 Mass. 657, 669 (2016), cert. denied, 583 U.S. 896 (2017).

4 The defendant argues that the jury did hear the evidence
again when the victim testified that the detective "ran the
name" of the defendant, creating the inference that the
defendant and her husband were a criminal family. This argument
is unsupported by the record. Defense counsel objected and the
judge sustained the objection. The prosecutor then reminded the
witness in the presence of the jury to limit her testimony to
her own personal observations. No evidence was presented as to
the results when the detective "ran the name" and there was no
prejudice.

6
For the remaining two hearsay statements, to which counsel

did not object to at trial, we review for a substantial risk of

a miscarriage of justice. See Commonwealth v. Silva, 431 Mass.

401, 405 (2000). Both statements involved the victim recounting

her daughter's assertion that the defendant took the missing

acne cream prescription.5 However, considering the hearsay

statements in context, it can readily be inferred that the

failure to object was a reasonable tactical decision. See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (when evaluating

unpreserved trial errors for substantial risk of miscarriage of

justice, it must be inferable "from the record that counsel's

failure to object was not simply a reasonable tactical

decision") (citation omitted). Both hearsay statements were

followed by the victim stating that the cream was mostly likely

lost in the daughter's messy bathroom, rather than stolen by the

defendant. This testimony inserted doubt that the defendant

stole an item rather than helped the Commonwealth prove its

case, and did not create a substantial risk of a miscarriage of

justice.

5 The two specific statements were similar in nature. When
recounting her daughter's reaction to the missing prescription,
the victim testified that the daughter said "No, the cleaning
lady took it," and again later repeated "No. The cleaning lady
had to take it."

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4. Third-party culprit and Bowden defenses. The defendant

contends that she was unable to (1) assert a third-party culprit

defense and (2) challenge the adequacy of the police

investigation when the judge barred her from cross-examining the

victim about her daughter's possible motive or intent to take

the missing items. See Commonwealth v. Bowden, 379 Mass. 472,

486 (1980).

In reviewing the exclusion of third-party culprit evidence,

"[b]ecause the issue is one of constitutional dimension, we are

not bound by an abuse of discretion standard, but rather examine

the issue independently." Commonwealth v. Moore, 480 Mass. 799,

807 (2018), quoting Commonwealth v. Conkey, 443 Mass. 60, 66-67

(2004). "If the evidence is of substantial probative value, and

will not tend to prejudice or confuse, all doubt should be

resolved in favor of admissibility" (quotation omitted).

Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009). The

exclusion of evidence of a Bowden defense, however, is not an

issue of constitutional dimension and "is examined under an

abuse of discretion standard." Id. at 804 n.26. "Bowden

evidence is admissible so long as its probative value is not

substantially outweighed by its prejudicial effect." Moore, 480

Mass. at 809 n.9.

Here, the judge properly prevented the defendant from

cross-examining the victim about her adult daughter, who also

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lived in the house, on her alleged substance use disorder. When

"a defendant seeks to admit prior bad acts of an alleged third-

party culprit, [she] must show that the acts of the other person

are so closely connected in point of time and method of

operation as to cast doubt upon the identification of [the]

defendant as the person who committed the crime" (quotations and

citations omitted). Commonwealth v. Wood, 469 Mass. 266, 276

(2014). The defendant offered no proof as to the daughter's

connection to the crime, and the prior bad act itself was "too

remote and speculative" to offer any substantive probative

value. Silva-Santiago, 453 Mass. at 801, quoting Commonwealth

v. Rosa, 422 Mass. 18, 22 (1996). For similar reasons, the

prejudicial effect of the evidence substantially outweighed its

probative value as to the Bowden defense, and the judge did not

abuse her discretion in barring its introduction.

Moreover, the defendant was able to present evidence

pertaining to the inadequacy of the police investigation.

During cross-examination, Rochester police Lieutenant Donald

Kemmett testified that he attempted and failed to contact the

defendant for an interview, did not attempt to interview other

residents or family members in the household, and did not

physically visit the home. He also stated that the police did

not take fingerprints, DNA samples, photos, or videos of the

home, and he was not aware of any attempt to discover whether

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the missing check was ever cashed. "Thus, where the issue of an

inadequate investigation was fairly before the jury, the

defendant suffered no prejudice from the exclusion of the

proffered evidence." Wood, 469 Mass. at 278.

5. Prior conviction records. "Pursuant to G. L. c. 233,

§ 21, the prior convictions of a witness, including the

defendant, are admissible for impeachment purposes. Prior

convictions may be introduced in the discretion of the judge,

who weighs the danger of unfair prejudice that might result from

the admission of such evidence against its probative value for

impeachment purposes." Commonwealth v. Brown, 451 Mass. 200,

202-203 (2008). Although the defendant did not testify and the

convictions were never admitted, she may challenge the judge's

ruling. See Commonwealth v. Crouse, 447 Mass. 558, 564 (2006).

On appeal, we review the record to determine whether the judge

abused her discretion by indicating that she would allow some of

the defendant's prior convictions to be used for impeachment

purposes if the defendant chose to testify. See Brown, 451

Mass. at 203.

During the motion in limine hearing immediately prior to

trial, the Commonwealth presented over twenty of the defendant's

prior convictions that it wished to introduce for impeachment

purposes. The judge reviewed the convictions, heard arguments

from both parties, and then listed the convictions that the

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Commonwealth could introduce for impeachment purposes if the

record could be properly certified.6 During trial, the defendant

chose not to testify and none of the prior convictions were

introduced for impeachment.

The defendant's argument that the judge admitted the

uncertified convictions is not supported by the record before

us. The judge was mindful to clarify that a Board of Probation

Court Activity Record is not "necessarily accurate," and that

the admission of any prior conviction was conditional on the

Commonwealth's ability to obtain certified docket sheets.7 See

Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999)

(docket sheets are considered "prima facie evidence of the facts

recorded therein").

Additionally, the defendant asserts that the judge did not

perform the required balancing test and instead admitted all

convictions that fit within the allowed statutory timeline

specified in G. L. c. 233, § 21. As previously stated, the

judge performed a comprehensive review of the prior convictions

6The defendant contends that the judge was going to permit
the introduction of eight prior convictions while the
Commonwealth contends it was seven. The difference is not
material to our determination.

7On appeal, the defendant did not provide this court with a
full list of the prior convictions that the judge considered for
admission at the motion in limine hearing.

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before announcing her decision. She agreed that several

convictions were potentially admissible, but she also excluded

several others. Without any more information on the specific

convictions that were allowed versus the convictions that were

denied, on the record before us the judge decided admissibility

on a conviction-by-conviction basis, and we discern no abuse of

discretion. See Crouse, 447 Mass. at 565-566.

Finally, the defendant claims that some of the past

convictions provisionally admitted for impeachment were too

close in nature to the crime she is accused of at trial, thus

imposing a prejudice that deterred her from testifying to her

defense.8 The defendant identified four past convictions that in

her view were substantially similar to larceny: receiving

stolen property, shoplifting by concealing, knowingly receiving

stolen property, and unarmed robbery.

As an initial matter, all four of the charges that the

defendant identified are distinguishable enough from the larceny

alleged here that there is little risk for prejudice as compared

to probative effect. See Commonwealth v. Paulding, 438 Mass. 1,

12 (2002), quoting Commonwealth v. Leftwich, 430 Mass. 865, 869

8 In an additional argument, the defendant invites us to
overhaul well-established law about the admission of prior
convictions for impeachment and cites to academic articles
detailing the prejudicial effects of this practice. We decline
this invitation.

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(2000) ("Generally, in order for the prejudicial effect to

outweigh the probative value of prior conviction evidence, the

'prior conviction must be substantially similar to the charged

offense'"). Moreover, although the defendant has a right to

testify, "[she] does not have a right to testify free of the

effects of impeachment by prior conviction." Commonwealth v.

DeBerry, 441 Mass. 211, 225 (2004). Accordingly, we discern no

abuse of discretion in the judge's evaluation and conditional

admission of the defendant's prior convictions.

Judgment affirmed.

By the Court (Massing,
Henry & Grant, JJ.9),

Clerk

Entered: May 20, 2025.

9 The panelists are listed in order of seniority.

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