Opinion
15-P-79
02-19-2016
COMMONWEALTH v. RONALD E. BRODEUR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ronald E. Brodeur, appeals from his convictions of disorderly conduct and indecent exposure in violation of G. L. c. 272, § 53. Both convictions stem from an incident during which the defendant exposed his penis and scrotum to Catherine Caney while he licked his lips and crouched up and down outside a Pride Gas Station (gas station). The defendant contends that his convictions should be set aside and a new trial ordered because the judge improperly ruled on the admission of certain evidence. We affirm.
The defendant also challenges a condition of his probation. However, it has been represented to this court that the defendant has completed the terms of his probation. Therefore, this issue is moot. See Lockhart v. Attorney Gen., 390 Mass. 780, 783-784 (1984); Commonwealth v. Anastos, 438 Mass. 846, 849-850 (2003).
Discussion. The defendant makes several challenges to the admission of evidence. We will first review the preserved errors under the prejudicial error standard. See Commonwealth v. Vuthy Seng, 456 Mass. 490, 502 (2010). Next, we will review the unpreserved errors to determine if they created a substantial risk of a miscarriage of justice. See Commonwealth v. Belcher, 446 Mass. 693, 696 (2006). A judge's evidentiary rulings are reviewed for abuse of discretion. Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278 (2014). A "judge's discretionary decision constitutes an abuse of discretion [when] . . . the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
An error is not prejudicial if it "did not influence the jury, or had but very slight effect . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, [then] it is impossible to conclude that substantial rights were not affected." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
This standard requires us to determine "if we have a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
A. Preserved. 1. Officer Eric Raymond's testimony. Officer Eric Raymond (Officer Raymond) testified as to why he was dispatched to the gas station. Officer Raymond testified that he received a call from dispatch that a man in an orange shirt and cargo pants was exposing himself near the gas station. The defendant objected to this testimony and the judge overruled the objection. The judge made no error in allowing this testimony because a police officer is permitted "to explain the state of police knowledge." Commonwealth v. Rosario, 430 Mass. 505, 508 (1999). See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting from Commonwealth v. Miller, 361 Mass. 644, 659 (1972) ("Arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct").
Even if we assume that this testimony went beyond "testimony [which] must be limited to the facts required to establish the officer's state of knowledge," Commonwealth v. Rosario, 430 Mass. 505, 509 (1999), Officer Raymond's testimony was cumulative of Caney's properly admitted testimony and caused no unfair prejudice to the defendant. See Commonwealth v. Esteves, 429 Mass. 636, 640 (1990) ("[A]dmission of inadmissible hearsay may not prejudice the defendant if it is cumulative of other properly admitted evidence").
2. Caney's testimony. Caney testified that her friend and the gas station's cashier saw the defendant expose himself and that the cashier brought the defendant to her attention by pointing him out. Both of these statements were objected to and sustained. After the second objection was sustained, the judge gave a curative instruction. "The jury are presumed to follow the judge's instructions," Commonwealth v. Maynard, 436 Mass. 558, 571 (2002), when "[t]he judge's instructions were clear." Commonwealth v. Helfant, 398 Mass. 214, 228 (1986). Consequently, there was no risk of unfair prejudice to the defendant from Caney's testimony.
B. Unpreserved. 1. Officer Raymond's testimony. The defendant argues, and the Commonwealth concedes, that the unobjected to portion of Officer Raymond's testimony in which he recounted portions of Caney's statements to him was inadmissible hearsay. The inadmissible hearsay did not rise to a substantial risk of a miscarriage of justice because Officer Raymond's statements were cumulative of Caney's testimony. See Commonwealth v. Esteves, 429 Mass. 636, 640 (1990).
2. Caney's testimony. The defendant argues that Caney's testimony regarding her friend's nonattendance at court and refusal to provide a statement to Officer Raymond, as well as Caney's testimony that the cashier's statement drew her attention to the defendant outside the gas station, was inadmissible hearsay. We conclude that these statements did not rise to a substantial risk of a miscarriage of justice. As to Caney's friend not being in court, this did not go to the ultimate issue of the case and her lack of appearance did not bolster the credibility of any of the witnesses. The statement made by the cashier, which brought to Caney's attention that the defendant was exposing his penis and genitals outside the gas station, was properly allowed on nonhearsay grounds, as it showed the effect on the listener, Caney. See Commonwealth v. Daley, 55 Mass. App. Ct. 88, 94 n.9 (2002) (passerby's remark ["Hey, are you all right"], if offered as assertion that victim was in distress, would be hearsay, but if offered to explain why defendant fled, would not be hearsay). The statement by the cashier to Caney was used to show what caused Caney to look outside, not for the truth of the matter asserted.
Although similar testimony was objected to on direct examination, there was no objection during redirect. The prosecutor asked, "So why didn't you say something to the cashier?" Caney responded, "She did say something to me. She's the one who brought it to my attention."
Judgments affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 19, 2016.