Commonwealth v. Timothy M. Tatro, Second.

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

22-P-999

COMMONWEALTH

vs.

TIMOTHY M. TATRO, SECOND.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in the District Court, the

defendant was convicted of assault by means of a dangerous

weapon and violating an abuse prevention order. The defendant

raises no issue with respect to the latter conviction, only

contending on appeal that his assault conviction must be

reversed because he was prejudiced by the admission of certain

police testimony regarding the defendant's purported prior bad

acts. Concluding that the admission of the testimony did not

create a substantial risk of a miscarriage of justice, we

affirm.

Background. In the early evening of March 23, 2022,

Trooper Scott Mason of the Massachusetts State Police responded

to the defendant's residence to assist the Cheshire Police

Department with serving a restraining order on the defendant.
After briefly speaking with officers on scene, Trooper Mason

went back to his cruiser to confirm the restraining order and

called for another trooper to assist. Trooper Mason then

approached the defendant's front door, knocked and announced

himself, and asked the defendant to come to the door so he could

"explain that [the defendant] ha[d] to vacate" the property.

Trooper Mason advised the defendant that if he did not open the

door they would "have to come in and get him." In the meantime,

an officer on scene spoke with the owner of the property, who

granted permission for police to enter the residence to arrest

the defendant.

Shortly thereafter, Trooper Mason and Trooper Shane Johnson

approached the front door, this time with a key to the residence

that they had received from the owner. As Trooper Mason

unlocked the door and began to push it open, it was slammed shut

from the inside. He then opened the door again and saw the

defendant standing with a crossbow pointed at the trooper's

chest. The crossbow appeared to be loaded. In response,

Trooper Mason deployed his taser, drew his firearm, and backed

away from the residence. Following several hours of

unsuccessful negotiations with the defendant, police forced

entry into the residence and arrested the defendant.

Discussion. On appeal, the defendant challenges the

admission of two statements from Trooper Mason's testimony as

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inadmissible evidence of prior bad acts: (1) Trooper Mason's

statement "I had dealt with [the defendant] before in the past,

and I just wanted to confirm there was no firearms inside the

house," and (2) Trooper Mason's response, when asked why he had

approached the defendant's residence with his taser drawn,

"[b]ecause our prior run-ins with [the defendant], where he's

either fought or resisted arrest with us. Not knowing what he

was doing inside of that residence. I just felt it was way

safer and I could justify having my taser out, prior to

entering." The defendant argues that the erroneous admission of

these statements, which he characterizes as propensity evidence,

unduly prejudiced him and warrants reversal of the assault

conviction.

Because the defendant did not object to the testimony, our

review is limited to whether its admission was error, and, if

so, whether that error created a substantial risk of a

miscarriage of justice. See Commonwealth v. Moreno, 102 Mass.

App. Ct. 321, 324 (2023). "In conducting this analysis, we are

guided by four factors: '[w]e consider [(1)] the strength of

the Commonwealth's case, [(2)] the nature of the error,

[(3)] the significance of the error in the context of the trial,

and [(4)] the possibility that the absence of an objection was

the result of a reasonable tactical decision'" (citation

omitted). Commonwealth v. Desiderio, 491 Mass. 809, 816 (2023).

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"Evidence of a defendant's prior bad acts is not admissible

to demonstrate the defendant's bad character or propensity to

commit the crime charged." Commonwealth v. West, 487 Mass. 794,

805 (2021). To the extent that Trooper Mason's testimony

constituted evidence of prior bad acts by the defendant, such

evidence "may be admissible to prove opportunity, intent,

preparation, plan, knowledge, pattern of operation, or common

scheme or course of conduct, as long as the probative value of

the evidence is not outweighed by the risk of unfair prejudice"

(citation omitted). Commonwealth v. Foreman, 101 Mass. App. Ct.

398, 408 (2022). However, we need not decide whether the judge

erred in not excluding, sua sponte, Trooper Mason's testimony

because, in any event, we are convinced that it did not

"'materially influence[ ]' the guilty verdict" (citation

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

"[J]udges in jury-waived trials are presumed to know and

correctly apply the law." Commonwealth v. Watkins, 63 Mass.

App. Ct. 69, 75 (2005). There is no indication that the judge

improperly relied on Trooper Mason's challenged testimony as

propensity evidence -- namely, as evidence to show that because

the police had prior dealings with the defendant in the past in

which he had resisted arrest, the defendant was likely to have

assaulted Trooper Mason in this instance. See Commonwealth v.

Batista, 53 Mass. App. Ct. 642, 648 (2002) (presumption that

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judge in jury-waived trial correctly applied law stands "absent

contrary indication").

The defendant argues that because the judge made no

reference to the bad act evidence, any doubt as to whether the

judge considered the impermissible propensity evidence can only

be resolved in his favor and thus prejudice must be assumed. We

note that the case on which the defendant relies for this

proposition, Commonwealth v. Darby, 37 Mass. App. Ct. 650

(1994), is readily distinguishable from the case at bar. In

that case, supra at 654-656, we reversed a judgment in a jury-

waived trial where the judge erroneously admitted a "grossly

offensive and inflammatory" photograph of the defendant and

explicitly attributed probative value to the photograph, and the

evidence of guilt was not overwhelming.

Here, not only was there no objection to the testimony,

contrast Darby, 37 Mass. App. Ct. at 652, but there was no other

mention of the statements at trial. Compare Commonwealth v.

Dwyer, 448 Mass. 122, 128-129 (2006) (bad acts evidence

"overwhelmed" evidence of charged conduct). Both statements

were brief, spanning a total of eight lines of transcript, and

were offered to explain why Trooper Mason took certain actions

leading up to his encounter with the defendant. See Foreman,

101 Mass. App. Ct. at 408 ("the Commonwealth is 'entitled to

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present as full a picture as possible of the events surrounding

the incident'" [citation omitted]).

Moreover, absent the challenged statements, the

Commonwealth's case against the defendant was strong. See

Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013).

Trooper Mason and Trooper Johnson each testified that after

opening the door to the defendant's residence -- which had just

been slammed shut from the inside -- they saw the defendant

pointing his loaded crossbow at Trooper Mason's chest; body

camera footage capturing this event was also admitted in

evidence. Furthermore, the defendant testified that he knew the

troopers were at his door, and that he had heard Trooper Mason

knock, state his intention to enter the residence, and insert

the key into the door moments before the assault. And when

asked if his statement, "I had no intention on hurting anyone,"

meant that he had no intention of firing the crossbow, the

defendant responded, "No, I mean, I intended for them to shoot

me." For that plan to work, the defendant had to intend that

the police be placed in apprehension of an imminent battery.

In short, following our review of the evidence and the case

as a whole, see Commonwealth v. Amirault, 424 Mass. 618, 646-647

(1997), "[w]e are not 'left with uncertainty that the

defendant's guilt has been fairly adjudicated' as required to

reverse under the substantial risk of a miscarriage of justice

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standard." Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 12

(2010), quoting Commonwealth v. Randolph, 438 Mass. 290, 294-295

(2002).

Judgments affirmed.

By the Court (Massing,
Ditkoff & Singh, JJ. 1),

Clerk

Entered: August 21, 2023.

1 The panelists are listed in order of seniority.

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