premise defense in Massachusetts

2024In assessing the degree of harm caused by constitutional evidentiary error, courts consider "(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions." Letkowski, 469 Mass. at 619 , quoting Mahdi, supra at 696-697 .

2024In considering whether a Doyle error is harmless beyond a reasonable doubt, we consider: "(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions." Mahdi, 388 Mass. at 696-697 .

2024To assess the strength of the properly admitted evidence against the effect of the erroneously admitted evidence, "we examine various factors, including the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt." Dagraca, supra at 553 .

2023Such review "requires us to consider, among other factors: '[1] the importance of the evidence in the prosecution's case; [2] the relationship between the evidence and the premise of the defense; [3] who introduced the issue at trial; [4] the frequency of the reference; [5] whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; [6] the availability or effect of curative instructions; and [7] the weight or quantum of evidence of guilt.'" Commonwealth v. Seino, 479 Mass. 463, 467-468 (2018), quoting Dagraca, supra at 553 .

2019To determine whether erroneously admitted evidence was harmless, we consider factors such as 'the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.'" Commonwealth v. Neves, 474 Mass. 355, 365-366 (2016), quoting Tyree, supra at 701 .

2016To determine whether erroneously admitted evidence was harmless, we consider factors such as “the importance of the evidence in the prosecution’s case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted *366 evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.” Commonwealth v. Tyree, 455 Mass. 676, 701 (2010) (Tyree), quoting Commonwealths.

2010See Commonwealth v. Sinnott, 399 Mass. 863 , 872 n.8 (1987). 5 The Supreme Judicial Court has enumerated the following factors that may be considered when making such a determination: “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions.” Commonwealth v. Isabelle, 444 Mass. 416, 419 (2005), quoting from Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).

2010Some of the factors to consider include: “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency *299 of the reference; and (5) the availability or effect of curative instructions.” Commonwealth v. Isabelle, 444 Mass. 416, 419 (2005), quoting from Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).

2020Id. at 270, 273 . 12The defendant claims that the admission of this evidence "harmed" his claim of self-defense because it rendered his testimony at trial less credible.

2009Beyond objecting to the certificates, the premise of the defense was not so much the nature of the substance that the defendant tried to swallow, but whether the defendant possessed it for personal use, possibly during what counsel referred to as a “cocaine binge.” See Commonwealth v. Diaz, 453 Mass. 266, 274 (2009).

2026In evaluating whether the admission of evidence was harmless beyond a reasonable doubt, "we examine factors such as 'the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.'" Id., quoting Commonwealth v. Mendes, 463 Mass. 353, 359 (2012).

2026In evaluating whether the admission of evidence was harmless beyond a reasonable doubt, "we examine factors such as 'the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.'" Id., quoting Commonwealth v. Mendes, 463 Mass. 353, 359 (2012).

2023Such review "requires us to consider, among other factors: '[1] the importance of the evidence in the prosecution's case; [2] the relationship between the evidence and the premise of the defense; [3] who introduced the issue at trial; [4] the frequency of the reference; [5] whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; [6] the availability or effect of curative instructions; and [7] the weight or quantum of evidence of guilt.'" Commonwealth v. Seino, 479 Mass. 463, 467-468 (2018), quoting Dagraca, supra at 553 .

2021Our review under this standard considers a number of factors, including "[1] the importance of the evidence in the prosecution's case; [2] the relationship between the evidence and the premise of the defense; [3] who introduced the issue at trial; [4] the frequency of the reference; [5] whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; [6] the availability or effect of curative instructions; and [7] the weight or quantum of evidence of guilt." Commonwealth v. Seino, 479 Mass. 463, 467-468 (2018), quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (

2018See Flebotte, supra. The difference between the two standards is not of kind but of degree.

2010Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994); Commonwealth v. Locke, supra. We conclude there was no prejudice in the admission of the accusation and denial evidence. 3.

2011See Commonwealth v. Rosario, 430 Mass. 505 , 511 n.6 (1999); Commonwealth v. Westbrooks, 19 Mass. App. Ct. 417, 421 (2011).

2010See Commonwealth v. Rosario, 430 Mass. 505 , 511-512 & n.6 (1999); Commonwealth v. Waite, 422 Mass. 792 , 801 n.9 (1996).

2023"In short, we analyze the case to see whether the error might have had an effect on the jury or contributed to the verdicts, and whether the Commonwealth's evidence was '"merely cumulative" of evidence properly before the jury,' Commonwealth v. Sinnott, [ 399 Mass. 863 , 872 n.8 (1987),] or was overwhelming 19 without the erroneously admitted evidence." Dagraca, 447 Mass. at 553 , citing Perez, 411 Mass. at 260 .

2010See Commonwealth v. Sinnott, 399 Mass. 863 , 872 n.8 (1987). 5 The Supreme Judicial Court has enumerated the following factors that may be considered when making such a determination: “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions.” Commonwealth v. Isabelle, 444 Mass. 416, 419 (2005), quoting from Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).

2023"In short, we analyze the case to see whether the error might have had an effect on the jury or contributed to the verdicts, and whether the Commonwealth's evidence was '"merely cumulative" of evidence properly before the jury,' Commonwealth v. Sinnott, [ 399 Mass. 863 , 872 n.8 (1987),] or was overwhelming 19 without the erroneously admitted evidence." Dagraca, 447 Mass. at 553 , citing Perez, 411 Mass. at 260 .

2009In determining whether the error was harmless beyond a reasonable doubt, we ask “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Commonwealth v. Perez, 411 Mass. 249, 260 (1991), quoting from Chapman v. California, supra. For making this determination, the Supreme Judicial Court has provided a scoreboard, intended to be neither exclusive nor exhaustive, against which such a determination can be tested: “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the wei

2018In determining whether an error is prejudicial "we examine various factors, including the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt." Dagraca, supra at 553 .13 Here, the defense was based on casting doubt on the composition of the substance before Dookhan

2009In determining whether the error was harmless beyond a reasonable doubt, we ask “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Commonwealth v. Perez, 411 Mass. 249, 260 (1991), quoting from Chapman v. California, supra. For making this determination, the Supreme Judicial Court has provided a scoreboard, intended to be neither exclusive nor exhaustive, against which such a determination can be tested: “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the wei

2016In undertaking this analysis we consider a number of factors, including “the importance of the evidence in the pros *538 ecution’s case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.” Hoyt, supra at 155 , quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).

2014See Hoyt, 461 Mass. at 155 , quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).

2016See Johnston, 467 Mass. at 690 & n.5; Commonwealth v. Letkowski, 469 Mass. 603 , 617 n.22, 619 (2014). 19 *477 “We proceed to analyze this case under the Mahcli factors, keeping in mind our standard that in addressing an error of this nature ‘reversal is the norm, not the exception.’ ” Chase, 70 Mass. App. Ct. at 834 , quoting from DePace, 433 Mass. at 385 .

2005Commonwealth v. DePace, 433 Mass. 379, 384 (2001), S.C., 442 Mass. 739 (2004), cert. denied, 125 S. Ct. 1842 (2005), quoting Commonwealth v. Mahdi, supra at 696-697 .

2015Under the harm *473 less error standard, “we consider ‘the importance of the evidence in the prosecution’s case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.’ ” Thomas , 469 Mass. at 552a, quoting Commonwealth v. Santos, 463 Mass. 273, 287 (2012).

2014In making this determination, “we consider ‘the importance of the evidence in the prosecution’s case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.’ ” Id., quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).

2026"To prove the crime of [OUI] . . . , the Commonwealth was required to establish that the defendant (1) physically operated a vehicle; (2) on a public way; (3) while under the influence of a narcotic drug." Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018). "[T]he phrase 'under the influence' refers to impairment, . . . [t]hus, 'in a prosecution for [OUI], the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of [a narcotic drug] diminished the defendant's ability to operate a motor vehicle safely." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (

2026"To prove the crime of [OUI] . . . , the Commonwealth was required to establish that the defendant (1) physically operated a vehicle; (2) on a public way; (3) while under the influence of a narcotic drug." Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018). "[T]he phrase 'under the influence' refers to impairment, . . . [t]hus, 'in a prosecution for [OUI], the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of [a narcotic drug] diminished the defendant's ability to operate a motor vehicle safely." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (

2026"To prove the crime of [OUI] . . . , the Commonwealth was required to establish that the defendant (1) physically operated a vehicle; (2) on a public way; (3) while under the influence of a narcotic drug." Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018). "[T]he phrase 'under the influence' refers to impairment, . . . [t]hus, 'in a prosecution for [OUI], the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of [a narcotic drug] diminished the defendant's ability to operate a motor vehicle safely." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (

2024"Factors the court considers in determining whether the erroneous admission of particular evidence is harmless include the importance of the evidence to the prosecution's case as well as to the premise of the defense; the frequency of reference to that evidence; and the weight of evidence of the defendant's guilt." Commonwealth v. Molina, 467 Mass. 65, 79 (2014).

2024Cf. Commonwealth v. Jones, 477 Mass. 307, 327-328 (2017) (where defendant elicited "considerable evidence creating the impression of full cooperation with the police," he "open[ed] the door" to evidence that he refused to appear before victim for identification).

2023In the context of improperly admitted evidence, we have said that relevant factors to consider in determining whether an error is harmless beyond a reasonable doubt include "(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative 50 instructions." Commonwealth v. McNulty, 458 Mass. 305, 320 (2010), quoting Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983).

2019To determine whether erroneously admitted evidence was harmless, we consider factors such as 'the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt.'" Commonwealth v. Neves, 474 Mass. 355, 365-366 (2016), quoting Tyree, supra at 701 .

2018In determining whether an error is prejudicial "we examine various factors, including the importance of the evidence in the prosecution's case; the relationship between the evidence and the premise of the defense; who introduced the issue at trial; the frequency of the reference; whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; the availability or effect of curative instructions; and the weight or quantum of evidence of guilt." Dagraca, supra at 553 .13 Here, the defense was based on casting doubt on the composition of the substance before Dookhan

2016See, e.g., Commonwealth v. Peixoto, 430 Mass. 654, 661 (2000) (concluding that error in introduction of evidence of defendant’s reluctance to speak with police without counsel was harmless where strength of Commonwealth’s case was substantial, “truly objectionable part of the exchange came from” defendant’s own testimony, defendant eventually gave statement to police, prosecutor did not dwell on challenged evidence, and judge gave “explicit and thorough” curative instruction). i. The relationship between the evidence and the premise of the defense.

2016See Johnston, 467 Mass. at 690 & n.5; Commonwealth v. Letkowski, 469 Mass. 603 , 617 n.22, 619 (2014). 19 *477 “We proceed to analyze this case under the Mahcli factors, keeping in mind our standard that in addressing an error of this nature ‘reversal is the norm, not the exception.’ ” Chase, 70 Mass. App. Ct. at 834 , quoting from DePace, 433 Mass. at 385 .