Appellant McCowen Brief - Mass Cases

Mass. 685, 688 (1985); Commonwealth v. Leavitt, 17 Mass.
App. Ct. 585, 590-92 (1984). The prohibition applies to
misconduct not “amounting to indictable crimes.
Commonwealth v. Spare, 353 Mass. 263, 266-67 (1967);
Commonwealth v. Homer, 235 Mass. 526, 534-35 (1920). NO
exception applies here.
Even if an exception did apply, the evidence is
inadmissible where its prejudicial impact outweighs
probative value. Commonwealth v. Errington, 390 Mass.
875, 881-82 (1984) “[S]irnilarity of the other bad acts
evidence to the charged offenses increases the danger
that the jury will confuse the issues necessary to
convict the defendant.” United States v. Lave?lle, 751
F.2d 1226, 1275, 1278 (D.C. Cir. 1985). The trial court
erred when it ruled the defense “opened the door” by
asking why Mason arrested McCowen. Mason’s non-response
recited five non-criminal domestic incidents in McCowen’s
past, evidence ruled inadmissible during pre-trial
motions. App. 13,93-99. Defendants should not be
required to defend against prior bad acts, accusations
not set forth in the indictments. Commonwealth v.
Banuchi, 335 Mass, 649, 654 (1975); Commonwealth v.
Holmes, 157 Mass. 223, 239-40 (1982). The admission of
prior bad acts in this case was error.
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