Opinion
No. 14–P–674.
11-23-2016
COMMONWEALTH v. Joseph LIMONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, following a four-day jury trial, of operating under the influence of intoxicating liquor (OUI) and other offenses arising out of his arrest. He argues that the judge erred in denying his motion for a mistrial after State police troopers testified about certain racially charged statements he made to them. He also challenges several probationary conditions imposed by the judge. We affirm.
Background. During the course of his arrest and booking for OUI, the defendant made numerous offensive statements targeted at various troopers. The defendant filed a motion in limine to preclude the troopers from referring to four specific statements during their testimony. In opposition, the Commonwealth argued that these statements were probative of the defendant's demeanor and the extent of his intoxication at the time of the arrest. The judge noted that the statements had "marginal relevance" to the issue of intoxication, and ruled that each statement could be elicited only once: three statements through the testimony of one trooper and the fourth through the testimony of a second trooper. The judge also ruled that when testifying as to one of the four statements, the witness should omit the defendant's comment, "I'm white."
The motion in limine concerned: (1) calling one trooper a "cunt" and stating, "[I]f you were the last girl on earth, I wouldn't fuck you"; (2) "You motherfuckers, I'm white. I'll kick your fucking ass"; (3) referring to troopers as "Irish motherfuckers"; and (4) referring to troopers as "faggots."
In his opening statement, defense counsel warned the jury that offensive epithets would be part of the testimony and that the defendant was not on trial for those comments. As permitted by the judge's ruling on the motion in limine, the first trooper testified that the defendant called him an "Irish motherfucker." The defendant objected when the second trooper, a sergeant, repeated this testimony. The sergeant went on to testify to certain extremely inflammatory racial and ethnic slurs used by the defendant, which were not the subject of the motion in limine, drawing another objection from defense counsel. Finally, without objection and as permitted by the judge's ruling on the motion in limine, the sergeant testified to the misogynist comments targeted toward one female trooper.
Shortly thereafter, at sidebar, the defendant moved for a mistrial on the basis that the sergeant had impermissibly testified to the particularly inflammatory racial and ethnic slurs. The judge agreed that the sergeant's testimony had exceeded the scope of his ruling on the motion in limine, but denied the motion for a mistrial because the testimony was essentially cumulative of other evidence, which had already made "clear that the defendant was acting very inappropriately and coarsely in every way imaginable."
The judge then gave emphatic curative instructions to the jury, stating three times that the defendant (to quote one of the judge's formulations) "[could] not be found guilty of the three crimes that he is charged with because he used a racial slur, an ethnic slur, or a slur directed at someone's gender," and that the jury could consider the statements only insofar as the jury found they had a bearing on the charges, particularly the OUI charge. He further requested that members of the jury make a note of this instruction in their notebooks, and he took a break in the proceedings to give them time to do so. In his final charge, the judge repeated these instructions twice.
The judge later explained at sidebar that he "had the members of the jury write [his] instruction down so they would have both a visual and the experience of writing it on paper to note it firmly in their minds."
The judge instructed, "You cannot find the defendant guilty because you think he is an unpleasant or offensive or coarse person. You can consider [the defendant's offensive and insulting language] only insofar as you find it has a bearing, it has relevance on the issue of operating an automobile under the influence of liquor."
The jury found the defendant guilty of OUI, assault by means of a dangerous weapon, and malicious destruction of property.
Discussion. a. Testimony concerning racially inflammatory language. The defendant asserts that the judge erred in denying his motion for a mistrial based on the admission of his inflammatory racial and ethnic slurs. "Whether to declare a mistrial is within the trial judge's discretion." Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). Where the motion is based on the jury's exposure to inadmissible evidence, the judge may "rel[y] on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant." Commonwealth v. Amirault, 404 Mass. 221, 232 (1989).
To the extent the defendant argues (for the first time on appeal) that a mistrial should have been ordered due to the testimony about the remarks that the judge had previously ruled admissible, see note 1, supra, there was no error. The judge acted within his broad discretion in determining that those statements were relevant to the issue of intoxication, and in rejecting the defendant's argument that the remarks' probative value was substantially outweighed by the danger of unfair prejudice. See, e.g., Commonwealth v. Bonds, 445 Mass. 821, 831 (2006) ; Mass. G. Evid. § 403 (2016).
Here, the judge promptly and forcefully instructed the jury that they could consider the offensive remarks only as they bore upon the issue of intoxication, and that the defendant could not be convicted based on these remarks alone. The jury are presumed to have followed the judge's instructions "to disregard matters withdrawn from their consideration." Commonwealth v. Helfant, 398 Mass. 214, 228–229 (1986) (quotation omitted). We cannot conclude that in relying on these curative instructions instead of declaring a mistrial, the judge abused his discretion, i.e., that he "made a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014) (quotation omitted).
The defendant also contends that the Commonwealth acted improperly in failing to prevent the sergeant from testifying in contravention of the judge's ruling on the motion in limine, and in failing to disclose particular racial slurs to which he testified. The prosecutor stated on the record that the defendant had notice of the testimony because it was part of the sergeant's grand jury testimony. The specific page of the grand jury minutes the prosecutor cited, however, did not include those particular racial slurs. After inquiring of the prosecutor, the trial judge addressed these allegations at sidebar, declaring, "I perceive no ... inappropriate misbehavior, no ethical misbehavior ... on the part of the Commonwealth." He noted that "witnesses cannot be entirely controlled" and concluded that the testimony was inadvertent, not purposeful circumvention of his ruling by the prosecutor. We see no basis to disturb the judge's conclusion.
b. Sentencing and conditions of probation. During the subsequent offense portion of the bifurcated trial, the judge, sitting jury-waived, found the defendant guilty of OUI, eighth subsequent offense. He sentenced the defendant to a five-year State prison term on the OUI offense, and, with respect to the other two convictions, to concurrent sentences of fifteen years of probation from and after service of the prison sentence. He also imposed several special conditions of probation, two of which the defendant now challenges. Specifically, the defendant was prohibited from operating any vehicle of any type (including those powered by gas, electricity, or battery) and ordered to attend Alcoholics Anonymous (AA) meetings at least five times per week. On appeal, he claims that (1) the probationary terms of fifteen years are disproportionately harsh; (2) the vehicle operation ban is not reasonably related to the goals of sentencing and probation; and (3) the AA condition violates his right of free exercise of religion under the First Amendment to the United States Constitution. None of these arguments was raised at the sentencing hearing.
As neither party has briefed the propriety of raising challenges to probation conditions on direct appeal from a conviction, we assume without deciding that the challenges are properly before us. Compare Commonwealth v. Lapointe, 435 Mass. 455, 458 (2001) (in light of case's prior history, court reached merits of challenges to probation conditions on direct appeal from conviction, while stating, "The better practice would have been for the defendant either to have challenged the probation conditions by means of a motion under Mass. R.Crim. P. 30, 378 Mass. 900 [1979], ... or to have sought review of the challenged conditions before the Appellate Division of the Superior Court").
As to the first two challenged conditions, we agree with the Commonwealth that they are consistent with the goals of rehabilitation of the defendant, deterrence, and protection of the public. See Commonwealth v. Pike, 428 Mass. 393, 403 (1998). Within statutorily-imposed limits, "judges are permitted great latitude in sentencing." Commonwealth v. Power, 420 Mass. 410, 413 (1995), cert. denied, 516 U.S. 1042 (1996). Discretion in fixing the duration of probation is authorized by G.L. c. 276, § 87, as appearing in St.1974, c. 614 (probation may be imposed "for such time and upon such conditions as [the court] deems proper"). Here, the judge carefully weighed the defendant's admitted alcoholism in fashioning his sentences. He declared that the sentences imposed served the purpose of deterring both the defendant and others who might commit similar offenses. The duration of the probationary terms and the ban on operating any type of vehicle are tailored to facilitate the defendant's rehabilitation and to prevent further offenses that would place members of the public in peril.
Finally, with respect to the defendant's challenge to the condition of probation requiring him to attend AA meetings, we conclude that the record is insufficient to evaluate his claim that this religious-based treatment program violates his constitutional rights. Indeed, at sentencing, defense counsel emphasized to the judge that the defendant had consistently attended daily AA meetings during his most recent probationary period, and counsel provided a confirming letter from a human services provider. Counsel then asked the judge for a term of probation that would allow the defendant to "address his issues holistically." After the judge announced the sentences, including the condition of AA attendance, both defense counsel and the defendant himself addressed the judge to take issue with certain aspects of the sentence, but neither of them objected to the AA condition of probation. In these circumstances, the issue, raised for the first time on appeal, is waived. The Supreme Judicial Court recently reached the same conclusion in very similar circumstances, stating:
"While conditions of probation that touch on religion and risk incursion upon constitutionally protected interests should be imposed only with great circumspection, the defendant raised no such concerns before the trial court judge, and there is no information in the record that would allow us to evaluate [the defendant's] claims. Because [the defendant] raises these claims for the first time on appeal, they have been waived. See Commonwealth v. Cowels, 470 Mass. 607, 617 (2015)."
Commonwealth v. Obi, 475 Mass. 541, 549 (2016).
Judgments affirmed.