Opinion
No. 11–P–1859.
2012-11-19
COMMONWEALTH v. Michael HIGGINS.
By the Court (BERRY, GREEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of driving while intoxicated, fourth offense, in violation of G.L. c. 90, § 24(OUI). At the Commonwealth's request, an additional charge of operating after suspension of license, G.L. c. 90, § 23, had been dismissed.
On appeal, the defendant claims that it was prejudicial error for the prosecutor, during cross-examination, to elicit testimony from the defendant regarding his prior license suspension, notwithstanding the trial judge's subsequent instruction that the jury disregard any reference thereto. We affirm.
The defendant was arrested after crashing his car into a house. When a police officer arrived at the scene, he smelled alcohol on the defendant's breath. The defendant was slurring his speech, stumbling, and had red and glassy eyes. There was an empty alcoholic beverage bottle in a cup holder in the car's center console. At trial, the only disputed issue was whether the defendant was under the influence of intoxicating liquor at the time he was operating the car. During cross-examination of the defendant, the prosecutor asked, over defense counsel's objection, whether the defendant had a driver's license. The defendant responded that he did not. The prosecutor then asked if the defendant's license had been suspended. The defendant answered that it had. Defense counsel again objected. The trial judge sustained the second objection and instructed the jury to disregard the answer pertaining to the suspended license.
On appeal, the defendant claims that the prosecutor's eliciting of this evidence concerning the suspended license was improper. We agree. The testimony had no direct bearing on the defendant's alleged intoxication and would have been relevant only to the dismissed charge of operating after suspension of license.
Nevertheless, any adverse effect of the improper testimony was mitigated by the trial judge's curative instruction and the striking of the suspended license reference. See Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005) (“The jury are presumed to follow instructions to disregard testimony”). Moreover, the evidence that the defendant was intoxicated, summarized above, was overwhelming.
The Commonwealth contends that the suspended license charge was not dismissed until after the court entered the guilty verdict on the OUI. The docket states that the license suspension charge was dismissed “PRIOR TO ARR [arraignment].” We need not address this procedural difference, if there is one, because it is clear that the license suspension charge was not the subject of litigation in this trial: the prosecution did not present direct evidence on that offense, neither counsel argued it in opening or closing, the license suspension offense was not included in the jury instructions, and the jury did not deliberate or return a verdict concerning that offense. In short, from all that appears of record, pretrial at arraignment, the Commonwealth agreed to dismiss the license suspension offense, and, notwithstanding that the formal entry of dismissal entered later, that does not change the context of the issues presented in this appeal.
Judgment affirmed.