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Tuesday, August 17, 2010

Permanent Record: Middle School Fight Presented to Jury in Trial about Killing Committed Years Later

On July 2, 2005, Peter McGuane and Daniel McGuane, twin brothers, encountered Kelly Proctor, whom they disliked.  Like the twins, Proctor lived in Ayer, Massachusetts and was attending the town's Independence Day fireworks display.  After a verbal argument arose over a seemingly trivial matter, Peter slapped Proctor's face, whereupon Peter and Daniel beat Proctor to death despite the efforts of Proctor's girlfriend and another bystander to stop the beating.  Several witnesses said the twins, who are both over 6 feet tall, repeatedly kicked and beat Proctor, who was 5 foot 8, in the head as he lay on the ground.  Prosecutors charged the twins with manslaughter.

At trial, the McGuanes offered multiple theories of the case, suggesting that (1) Daniel's participation was justified as defense of another (i.e., Peter) and (2) Proctor's death was an accident.  See Com. v. McGuane, --- N.E.2d ----, 2010 WL 3171011 (Mass. Ct. App. Aug. 13, 2010); Mary E. Arata, "McGuane twins lose appeal of conviction," Nashoba Pub. Online (Aug. 13, 2010).  In addition, they objected based on Massachusetts Rule 404 to admission of evidence concerning prior bad acts.

The prosecution presented evidence of a middle school incident in which "Daniel grabbed the handle bars of a bike the victim was riding, and slapped him in the face" as well as "instances when the victim and the defendants 'trash talked' to each other, and the defendants called the victim a 'bitch.'"  McGuane, at *1 [pin cites are to the Westlaw pagination].

In addition to rejecting challenges to jury instructions beyond the scope of this post (but interesting enough to merit a dissent), the court held that Rule 404 did not bar the disputed evidence.  Rule 404 provides:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except as follows:

    (1) Character of the Accused. In a criminal proceeding, the accused may offer evidence of a pertinent trait in reputation form only, and the prosecution may rebut the same.
    (2) Character of the Victim. In a criminal proceeding, in support of a claim of self-defense,
        (A) the accused may offer evidence known to the accused prior to the incident in question of the victim’s reputation for violence, of specific instances of the victim’s violent conduct, or of statements made by the victim that caused reasonable apprehension of violence on the part of the accused;
        (B) where the identity of the first aggressor is in dispute, the accused may offer evidence of specific incidents of violence allegedly initiated by the victim, or a third party acting in concert with or to assist the victim, whether known or unknown to the accused, and the prosecution may rebut the same in reputation form only.
    (3) Character of the Witness. Evidence of the character of a witness for truthfulness or untruthfulness, as provided in Sections 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, nature of relationship, or absence of mistake or accident.

The court then recited authority from the Supreme Judicial Court construing the rule:

It is well established that the prosecution may not introduce evidence of the defendant's prior misconduct for the purpose of showing that he has a bad character or the propensity to commit the crime charged. See Mass. G. Evid. § 404(a) (2010). This evidence may be admissible if it is relevant for some other purpose. ... Mass. G. Evid. at § 404(b). Where the evidence is only marginally relevant, it should be excluded unless the probative value of the evidence outweighs the undue prejudice ‘that may flow from it.’ .... A judge's decision to admit such evidence is upheld unless there is clear error. ...

McGuane, at *4 (quoting Commonwealth v. Cruz, 456 Mass. 741, 751, 926 N.E.2d 142 (2010) (case cites within Cruz omitted)).  The court the applied the rule to Daniel's claim that the middle school slapping "incident occurred approximately six to eight years prior to the killing [and] was too remote in time, speculative, and prejudicial to be admissible."  Id.

There was no abuse of discretion. Here, the earlier incident between the defendant and the victim was relevant to explain what happened later, and was admissible because it was reasonably intertwined with the description of the events and presented a full picture of the events surrounding the killing. ... Moreover, there was evidence of ongoing animosity between the defendants and the victim-other incidents of verbal jousting between them, including the defendants calling the victim a “bitch.” The middle school incident was particularly relevant in this case, given that the defendants claimed that the victim's death occurred as the result of an accident. ...

Finally, any potential prejudice to Daniel caused by the admission of the evidence was mitigated by the limiting instructions contained in the final charge to the jury. The judge in this case, commendably sensitive to the potential for undue prejudice from the introduction of prior misconduct evidence, provided the jury with forceful limiting instructions at the close of the case.

Id.  The defendant's theory of the case made it easier for prosecutors to introduce evidence of his own prior bad acts toward the victim.

  - Ben Trachtenberg

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