Commonwealth v. Dana W. Griffith.

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-896

COMMONWEALTH

vs.

DANA W. GRIFFITH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a District Court jury trial, the defendant, Dana W.

Griffith, was convicted of threatening to commit a crime

(murder), G. L. c. 275, § 2; breaking and entering at night with

intent to commit a felony, G. L. c. 266, § 16; defacing

property, G. L. c. 266, § 126; receiving stolen property (over

$1200), G. L. c. 266, § 60; and stalking, G. L. c. 265,

§ 43 (a). He claims multiple errors in the judge's evidentiary

rulings before and at trial, in her allowance of a pretrial

motion to dismiss one complaint and amend another, and in her

denial of his motion for a new trial. We affirm.

Background. 1. Factual background. We assume familiarity

with the record and recite pertinent facts as the jury could

have found, reserving others for later discussion. The

defendant dated the victim for approximately four or five weeks
before she broke things off. After those "normal" initial

weeks, the relationship "became violent, harassing, threatening,

[and] very scary." The defendant would send the victim

messages, call her "all day," and "show up uninvited" at her

home, even after she moved to try to get away from him. He

reacted "[v]ery violently" when she refused to do things,

including "try[ing] to force his way" when she refused to have

sex with him.

Using multiple phone numbers, the defendant called both the

victim and her brother and made threats to both. The victim

changed her phone number three times, yet the defendant

continued to call her. The defendant posted fake advertisements

online identifying the victim as a sex worker and listing her

name and address.

Approximately three months after the victim moved out of

Boston, she returned to her new apartment at approximately 10

P.M. to find the defendant "lurking" outside her building. She

had seen him there before and had contacted the police. On this

occasion, the defendant had been calling the victim "all day,"

"easily over 60 times." The victim ran inside and made sure all

the doors and windows were locked, but opened the door when the

defendant knocked, grabbing a small toy bat as he approached.

They ended up outside, where the defendant pushed, kicked, and

repeatedly punched the victim in the face and head.

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In the following weeks, the defendant continued to call the

victim repeatedly, saying he was going to "get" her, that she

needed to move, and to leave the country. He sent a message

that said, "Hoe, I'll kill you." Early one morning, a big rock

came through the victim's bedroom window while she was lying in

bed. Feeling she was no longer safe, the victim took her

daughter, left the apartment, and moved to a shelter. It was

August 2020 and the COVID-19 state of emergency was still in

effect; it took the victim a few months to find a new home,

pack, and move. During the process, her mailbox at her former

apartment was pried open and her mail was taken, so she changed

her address.

On the day of her planned move, she returned to her

apartment and found that a locked sliding door had been opened.

Her moving boxes had been opened, their contents strewn on the

floor, and her apartment was "completely destroyed." She found

her televisions, electronics, and her daughter's laptop in the

bathtub with the water running. A suitcase containing birth

certificates, passports, and other vital documents, as well as

sentimental photographs and papers, was missing. While the

victim and her brother surveyed the damage, the defendant

repeatedly called and texted the victim's brother. The victim

called the defendant, who "started to laugh" and asked her, "did

you see your bathtub?"

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2. Procedural history. Before trial, there was extensive

motion practice about evidence of the defendant's prior bad acts

and the use of certified prior convictions to impeach him if he

testified. After hearing argument on four different dates, the

judge ruled preliminarily that four of the defendant's prior

convictions would be admissible for impeachment purposes if he

testified.1 The judge stressed that, if the defendant testified,

she would reevaluate her decision in light of the evidence

presented.

In a written decision, the judge permitted the victim to

testify to the history of her relationship with the defendant,

including that she "broke up with the defendant due to his

controlling behavior" and that he "often tried to force her to

have sex." After addressing its probative value and the risk of

unfair prejudice to the defendant and distraction of the jury,

as well as the possibility of a trial within a trial, the judge

excluded evidence that the defendant was accused and tried for

violation of an abuse prevention order, malicious destruction of

property, and assault and battery in a case involving the same

victim.

1 The convictions were for malicious destruction of property and
assault and battery and malicious destruction of property and
annoying telephone calls.

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Discussion. 1. Prior bad acts evidence. Two witnesses

mentioned that the defendant was on probation. Each time, the

defendant objected to the testimony and moved for a mistrial.

The judge sustained the objections and struck the testimony.

After the first reference to the defendant's being on probation,

she instructed the jury that the testimony was "not evidence in

this case" and that they were to disregard it. She also

forcefully and promptly instructed the jury that they were "not

to consider" struck evidence, to "put it out of [their] mind[s]"

as it was "not part of [their] consideration," and "ordered" the

jury "not to use it or consider it in any way in deciding this

case." She denied each motion for a mistrial.

"The decision whether to declare a mistrial is within the

discretion of the trial judge." Commonwealth v. Mullane, 445

Mass. 702, 711 (2006). "Where a party seeks a mistrial in

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" (quotations and citations omitted). Id.

"Such reliance on curative instructions stems from the notion

that '[j]urors are expected to follow instructions to disregard

matters withdrawn from their consideration.'" Commonwealth v.

Kilburn, 426 Mass. 31, 38 (1997), quoting Commonwealth v.

Cameron, 385 Mass. 660, 668 (1982). The judge's curative

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instructions were prompt, forceful, thorough, and accurate. We

discern no error. 2

The defendant also challenges the judge's pretrial ruling

allowing the victim to testify that the defendant "often forced

her to have sex." The judge concluded that this testimony could

be admitted as evidence of "the nature of [the victim's] dating

relationship with the defendant, as well as the history of how

and why their relationship ended," and noted that the acts "were

probative of the elements of stalking because they provided

context for [the victim's] fear." "[D]eterminations of

evidentiary 'admissibility, probative value, and unfair

prejudice are left to the sound discretion of the trial judge[]

and will not be overturned absent clear error.'" Commonwealth

v. Fernandes, 492 Mass. 469, 483 (2023), quoting Commonwealth v.

Melendez, 490 Mass. 648, 662 (2022).

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

to demonstrate the defendant's bad character or propensity to

commit the crime charged." Fernandes, 492 Mass. at 483, quoting

Commonwealth v. West, 487 Mass. 794, 805 (2021). However, such

2 A cursory argument directed at the defendant's sister's comment
that he was "locked up" is similarly unavailing. It appears
that neither the judge nor the lawyers heard the sister's
testimony. In the absence of any indication that the jury heard
it, and given that it was made in passing, the question was
struck, the witness was instructed not to answer, and the judge
appropriately charged the jury about struck evidence and their
role in analyzing the evidence, we discern no error.

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evidence may be admissible "if relevant for some other probative

purpose, including to show intent, motive, state of mind, or

some other relevant issue," Commonwealth v. Robidoux, 450 Mass.

144, 158 (2007), and if its probative value outweighs the risk

of unfair prejudice. Commonwealth v. Philbrook, 475 Mass. 20,

26 (2016).

After applying the two-part inquiry for assessing the

admissibility of this evidence, the judge permissibly concluded

that it related to an element of one charge and was "relevant to

establish context for the allegations, as well as the

defendant's state of mind, motive, and intent." See

Commonwealth v. Dung Van Tran, 463 Mass. 8, 15 (2012);

Commonwealth v. Carlson, 448 Mass. 501, 507-508 (2007). The

defendant asserts that this testimony added little to the

substantial other evidence of the "hostile" relationship between

the victim and the defendant, but the task of weighing the

evidence was for the trial judge, and she did not abuse her

broad discretion in admitting this testimony. Her limiting

instructions, given during the victim's testimony and again at

the end of the trial, further minimized the possibility that the

jury would misuse this evidence. See, e.g., Commonwealth v.

Walker, 442 Mass. 185, 202 (2004).

2. Conditional admission of prior convictions for

impeachment. "Pursuant to G. L. c. 233, § 21, the prior

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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, he may challenge the judge's

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

If we determine that the judge abused her discretion, we review

for prejudicial error. "An error is not prejudicial if it 'did

not influence the jury, or had but very slight effect.'"

Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

"In conducting a review for an abuse of discretion, we have

analyzed several factors," such as "whether the prior conviction

is substantially similar to the crime charged, whether the prior

conviction involves a crime implicating truthfulness, whether

there were other prior convictions that the Commonwealth could

have used to impeach the defendant, and whether the judge

conducted the required balancing test" (citations omitted).

Commonwealth v. Little, 453 Mass. 766, 773 (2009). Although

"[e]vidence of a prior conviction, especially of a violent crime

or one involving dishonesty, is probative as to the defendant's

credibility as a witness," Commonwealth v. Whitman, 416 Mass.

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90, 93 (1993), quoting Commonwealth v. Elliot, 393 Mass. 824,

835 (1985) (Lynch, J., concurring), "where the prior conviction

is for a crime substantially similar or similar in nature to the

crime for which the defendant is on trial, the danger of unfair

prejudice is most likely to arise." Commonwealth v. Reid, 400

Mass. 534, 538 (1987). In such a case, the "judicial tilt . . .

would be toward exclusion." Commonwealth v. Chartier, 43 Mass.

App. Ct. 758, 762 (1997).

Here, the defendant was charged with multiple crimes, of

which one –- assault and battery on a household member -– was,

as the judge acknowledged, very similar to one of the prior

convictions (assault and battery) the Commonwealth sought to

use. This substantial similarity, standing alone, does not mean

that the judge abused her discretion in admitting the prior

conviction. The Supreme Judicial Court has "never held that

admission of a prior conviction substantially similar to that

for which the defendant is on trial is per se error." Reid, 400

Mass. at 538. See Crouse, 447 Mass. at 565 n.6; Commonwealth v.

Bly, 444 Mass. 640, 654 (2005); Elliot, 393 Mass. at 833-834

(questioning, without deciding, whether it was error to admit

defendant's prior conviction for rape when he was on trial for

rape). Rather, even when the prior conviction is for the same

crime, "there remains the application of the sound discretion of

the judge" to make that determination. Chartier, 43 Mass. App.

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Ct. at 762. "[T]hat residue of discretion does not vanish when

the prior conviction is for the same crime rather than for one

substantially similar. The trial judge's duty is still to

balance unfair prejudice and utility to the jury." Id.

The judge considered this issue at four pretrial hearings,

assembled (on her own, it appears) a table of the defendant's

potential impeaching convictions, required the Commonwealth to

identify the relevant convictions, and "read a number of cases

on topic." We cannot fault her process. But the case is a

close one; unlike in Chartier, 43 Mass. App. Ct. at 762-763,

other convictions, listed on the judge's table, were presumably

also available for impeachment, without the dangers posed by

admitting the assault and battery conviction.

Here, we need not determine whether the judge abused her

discretion in admitting the conviction because the defendant has

not demonstrated prejudice. See Flebotte, 417 Mass. at 353;

Commonwealth v. Suarez, 95 Mass. App. Ct. 562, 570 (2019). The

evidence against the defendant was overwhelming. Among other

evidence, the jury heard from the victim, her brother, and the

defendant's sister that the defendant threatened, harassed, and

stole from the victim. They saw multiple text messages in which

he threatened to harm or kill the victim and her brother. They

heard evidence of the defendant's assault on the victim, both

from the victim herself and from a responding police officer.

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They saw images of items taken from the victim's home and

recovered from the defendant's car, including the victim's

personal photographs, medical bills, personal letters, and

identity documents. They heard that, when the victim arrived

home and found her electronics in her bathtub with the water

running, she called the defendant, who laughed and asked, "Did

you see your bathtub?"

"Where the defendant chooses not to testify in the face of

a ruling on the admissibility of his prior convictions, the

failure to make [an offer of proof] may be construed against him

on the questions of prejudice and substantial risk." Little,

453 Mass. at 775 n.8. Faced with this substantial evidence of

the defendant's guilt, and without an affidavit or offer of

proof describing how his testimony might have affected that

evidence, we conclude that the defendant has failed to

demonstrate prejudice.3

3. Vouching for victim's credibility. The victim

testified pursuant to a nonprosecution agreement. A redacted

version of the agreement, omitting the victim's agreement to

3 The judge also preliminarily admitted, for impeachment
purposes, the defendant's prior convictions for malicious
destruction of property and annoying telephone calls. These
rulings were amply supported by the record and, unlike the prior
conviction for assault and battery, were not for a
"substantially similar," or the same, offense for which the
defendant was on trial. Whitman, 416 Mass. at 94. Their
admission was not an abuse of discretion.

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"provid[e] full, complete and truthful information" and to

"answer completely and truthfully" questions from the District

Attorney's Office and law enforcement officers, was admitted in

evidence during the defendant's cross-examination of the victim.

The prosecutor opened her redirect examination of the

victim by directly addressing the redacted portions of the

nonprosecution agreement, asking, "Does your part of the

agreement mean that you're going to testify truthfully?" The

defense timely objected, but before the judge sustained the

objection, the witness answered, "Yes." After the prosecutor

asked another question about the victim's "responsibilities"

under the agreement, the judge called the parties to sidebar and

said forcefully that the response was inadmissible. Defense

counsel asked the judge to instruct the jury to disregard the

witness's answer, and the judge did so.

We review this claim to determine whether, by not sua

sponte further instructing the jury, the judge abused her

discretion. Because the defendant did not object to the judge's

instruction at trial, if we find error, we ask whether the error

created a substantial risk of a miscarriage of justice, see

Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016); that is,

whether any error was "sufficiently significant in the context

of the trial to make plausible an inference that the [jury's]

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result might have been otherwise but for the error" (citation

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

"Ordinarily, questions concerning an agreement's

requirement that a cooperating witness give 'truthful' testimony

should be reserved for redirect examination after cross-

examination has attacked the witness's credibility based on the

plea agreement." Commonwealth v. Rolon, 438 Mass. 808, 813

(2003). So it happened here. The defense strategy was to

attack the victim's credibility. It was for this purpose that

defense counsel introduced the redacted nonprosecution

agreement, as his closing argument bore out. In the

circumstances, limited examination on this topic was

permissible. We discern no abuse of discretion in the trial

judge's decisions to foreclose this line of questioning, sustain

the objection, strike the answer, and instruct the jury to

disregard it.

4. Amendment of stalking complaint. "The purpose of a

complaint or indictment is 'to furnish the accused with such a

description of the charge against him as will enable him to make

his defence.'" Commonwealth v. Domino, 465 Mass. 569, 575-576

(2013), quoting Commonwealth v. Montanino, 409 Mass. 500, 512

(1991). "[A] judge may allow amendment of the form of a

complaint or indictment if such amendment would not prejudice

the defendant or the Commonwealth." Commonwealth v. Bolden, 470

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Mass. 274, 281 n.5 (2014), quoting Mass R. Crim. P. 4 (d), 378

Mass. 849 (1979). "Whether an amendment is one of substance or

form turns upon double jeopardy principles." Domino, supra at

575, quoting Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 691

(2000). "[I]f an acquittal on the original charge would not bar

prosecution of the amended charge, the amendment is one of

substance." Domino, supra, quoting Bynoe, supra. "The time

alleged for an offense is ordinarily treated as a matter of

detail rather than substance." Commonwealth v. Knight, 437

Mass. 487, 492 (2002), quoting Commonwealth v. Campiti, 41 Mass.

App. Ct. 43, 50 (1996).

To prove stalking, the Commonwealth must prove, among other

things, a "knowing pattern of conduct or series of acts over a

period of time." G. L. c. 265, § 43 (a). More than two acts

are required. Commonwealth v. Julien, 59 Mass. App. Ct. 679,

684 (2003). Although it contains a temporal element, we do not

read this statutory language to make the date an essential

element of the offense. See Commonwealth v. King, 387 Mass.

464, 467 (1982).

The initial complaints charged two stalking offenses over

two different time periods, while the amended complaint charged

one stalking offense over a combined time period. The defendant

maintains that, because acquittal on either of the two initial

complaints would not bar prosecution on the amended charge, the

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amendment was one of substance. We are not persuaded. Because

the date is not an essential element of stalking, the original

complaints did not charge two distinct crimes, but rather

represented one permissible way of capturing the alleged

criminal conduct. Cf. Campiti, 41 Mass. App. Ct. at 50 (if

grand jury had been presented with allegations of two robberies

of same victim on distinct dates and indicted on only one

robbery, conviction on proof of only unindicted robbery would be

impermissible). The amended complaint, capturing the same

alleged wrongdoing over the same dates detailed in the

Commonwealth's bill of particulars, was another permissible

expression of the crime. It did not "materially change[]" the

allegations against the defendant (citation omitted), Knight,

437 Mass. at 492, or impede the defendant's ability to prepare

his defense. See Domino, 465 Mass. at 575-576. There was no

error.

5. Selection of alternate juror. To select alternate

jurors, the court "shall direct the clerk to place the names of

all of the available jurors . . . into a box or drum and to

select at random the names of the appropriate number of jurors

necessary to reduce the jury" to the number needed for

deliberation. G. L. c. 234A, § 68. This is what the judge did.

The defendant, who is Black, maintains that the judge

erred, and the prosecutor reneged on a promise, by following

15
this process and thereby selecting the only Black juror as an

alternate. We are not persuaded that the Commonwealth agreed to

exclude this juror from the alternate selection process; even

had there been an agreement, the judge would have been under no

obligation either to honor or to enforce it in contravention of

the statutorily prescribed process. We perceive no error.

6. Ineffective assistance of counsel. A successful claim

for ineffective assistance of counsel requires a showing that

(a) counsel's performance fell "measurably below that which

might be expected from an ordinary fallible lawyer," and (b)

such conduct likely deprived the defendant of "an otherwise

available, substantial ground of defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "A defendant seeking a new

trial based on a claim of ineffective assistance of counsel

bears the burden of establishing both prongs of the Saferian

test." Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014).

The defendant moved for a new trial, contending that his

trial counsel was ineffective because he failed to redact from

the victim's nonprosecution agreement, which was admitted as an

exhibit, a reference to a complaint (for violation of a G. L.

c. 209A order) that had been dismissed immediately before trial.

We review the denial of the motion for abuse of discretion,

Commonwealth v. Grace, 397 Mass. 303, 307 (1986), reversing only

if "it appears that justice may not have been done." Mass. R.

16
Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). Where,

as here, the motion judge was also the trial judge, we give

"special deference to the judge's findings of fact and . . .

decision on the motion." Commonwealth v. Kolenovic, 471 Mass.

664, 672-673 (2015).

We discern no abuse of discretion in the judge's

assessment. She permissibly concluded that counsel's

"oversight" in not redacting the charge was not performance

below that of an ordinary fallible lawyer. She reasoned that,

although the error resulted in the jury's being exposed to a

charge for which the defendant was not on trial, the jury were

already aware of the abuse prevention order through other

aspects of the trial. Furthermore, the jury were instructed

that the charges before them were limited to those alleged in

17
the complaints. Jurors are presumed to follow the judge's

instructions. Commonwealth v. Silva, 482 Mass. 275, 290 (2019).

Judgments affirmed.

Order denying motion for new
trial affirmed.

By the Court (Meade,
Hershfang & D'Angelo, JJ.4),

Assistant Clerk

Entered: January 18, 2024.

4 The panelists are listed in order of seniority.

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