Opinion
21-P-794
10-31-2022
COMMONWEALTH v. KAYLA M. SORDELLO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a jury trial in the Boston Municipal Court, the defendant was convicted of reckless operation of a motor vehicle in violation of G. L. c. 90, § 24 (2) (a). On appeal, she argues that she was prejudiced by improper comments made by the prosecutor in his opening and closing statements and that her conviction should be vacated as a result. We affirm.
Discussion.
1. Opening statement.
The defendant's conviction stemmed from an incident during which the police saw the defendant driving her car away from a party with a passenger hanging partially outside of the side window of her moving vehicle. During his opening statement, the prosecutor asked the jury to put themselves in the position of a safe driver or pedestrian and to consider the impact of reckless driving on "you, [and] on the community." We agree with the defendant that this statement amounted to an improper "invitation to the jury to put themselves in the position of the victim." Commonwealth v. Jordan, 49 Mass.App.Ct. 802, 816 (2000). See Commonwealth v. Croken, 432 Mass. 266, 268 (2000), quoting Commonwealth v. Fazio, 375 Mass. 451, 454 (1978) ("The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence").
"Because there was no objection to the prosecutor's opening statement, we review the defendant's claim only to ascertain whether any error created a substantial risk of a miscarriage of justice." Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 56 (2009). An error will not create a substantial risk of a miscarriage of justice unless we are left with "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). "The opening remarks 'must be judged in light of the entire [statement], the judge's instructions to the jury, and the evidence actually introduced at trial.'" Commonwealth v. Boyajian, 68 Mass.App.Ct. 866, 869 (2007), quoting Commonwealth v. Jones, 439 Mass. 249, 260-261 (2003) .
We apply this standard to the portions of the opening statement summarized above. In doing so, we consider that both before the opening and in his final charge, the judge stressed the limited purpose of the opening statements and repeatedly cautioned the jury that "opening statements and the closing arguments of the lawyers are not a substitute for the evidence." Moreover, as discussed infra, the judge instructed the jury not to put themselves in the shoes of anyone involved in this case. Any risk of a miscarriage of justice created by the prosecutor's remarks during the opening statement was at least blunted by these instructions. See Fazio, 375 Mass. at 458 (judge's repeated instructions regarding limited purpose and effect of opening sufficient to remedy potential prejudice created by improper remarks in opening statement); Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 51 (2003) (same). See also Commonwealth v. Kolenovic, 478 Mass. 189, 201 (2017) (jury presumed to follow judge's instructions).
Additionally, the evidence of the defendant's guilt in this case was, although not overwhelming, strong. The arresting officer observed the defendant driving in traffic with a person hanging out the front passenger's side window. At trial, the defendant testified and confirmed this account, although she contended that she "tried to tell [the passenger] to get back inside." Despite the flaws in the prosecutor's opening statement, the strength of the Commonwealth's case mitigated any resulting risk of a miscarriage of justice. See Boyajian, 68 Mass.App.Ct. at 869-870 (improprieties in prosecutor's opening statement did not create substantial risk of miscarriage of justice in light of "strong evidence at trial" and judge's instructions).
Finally, we consider the defendant's failure to object to the prosecutor's opening statement as a "further indication that the remark was not unfairly prejudicial in tone, manner, or substance." Oliveira, 74 Mass. App Ct. at 56.
2. Closing argument.
In his closing argument, the prosecutor again asked the jury to put themselves in the shoes of someone affected by reckless driving. This, like the prosecutor's opening statement to the same effect, was improper. See Jordan, 49 Mass.App.Ct. at 816. We likewise conclude that the prosecutor overstepped in his argument that defense counsel mischaracterized the evidence in his closing argument.
Specifically, the prosecutor targeted defense counsel's contention that any dangerous conduct was the fault of the defendant's passenger, and that the defendant driver did not do anything wrong. The prosecutor stated: "My brother, Defense Counsel, he's suggesting that the Defendant, at no point, did anything wrong. She followed the law. She, she pulled out safely. She went, proceeded safely. And, that is just a gross misrepresentation of the evidence that you heard today."
As in assessing improprieties in a prosecutor's opening statement, "[i]n analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.'" Commonwealth v. Dancy, 75 Mass.App.Ct. 175, 189-190 (2009), quoting Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). Our analysis is guided by considerations including "(i) whether the defendant objected; (ii) whether the error was limited to collateral issues or went to the heart of the case; (iii) what specific or general instructions the judge gave to the jury to mitigate the mistake; and (iv) whether the error possibly made a difference in the jury's conclusion." Commonwealth v. Moore, 489 Mass. 735, 752 (2022).
Beginning with the first of these factors, we note that although the defendant's counsel objected to the prosecutor's closing during a sidebar with the judge after closing arguments, the judge promptly gave the jury the following curative instruction to which counsel did not object:
Because the defendant's counsel did not object to the curative instructions, our review is again only for a substantial risk of miscarriage of justice. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).
"You heard . . . the two closings. I keep on mentioning closing arguments are just that, they're arguments. And, you're not to put yourselves in the shoes of any particular party involved in this case. You have to stick to what allegedly took place on this particular day, not about the community or what happens in general. This particular set of allegations. I can't stress that enough."
The defendant points us to Commonwealth v. Gallego, 27 Mass.App.Ct. 714 (1989) to say that boilerplate instructions are insufficient even where the defendant does not subsequently object. In contrast to the instructions at issue in Gallego, however, the trial judge's instructions in this case cannot reasonably be called "entirely bland," or characterized as merely boilerplate. Id. at 720. Moreover, the prosecutor's comments in closing here were not on a level with Gallego, where this court doubted any instruction could have sufficed to cure the potential prejudice resulting from them. Id.
Next, the objectionable portions of the prosecutor's closing went to collateral issues -- the jurors' personal concerns about unsafe driving in their communities and the trustworthiness of defense counsel -- rather than to the heart of the case -- whether the defendant committed the crime alleged against her. Without minimizing the impropriety of the argument, "[t]he jury have the ability to discount hyperbole and other improper statements." Commonwealth v. Santiago, 425 Mass. 491, 495 (1997).
Finally, the judge's preliminary instructions to the jury and his final charge, as well as his forceful and pointed curative instruction, all mitigated the impact of the improper argument. See Santiago, 425 Mass. at 495 ("the trial judge's instructions are generally adequate to cure errors in the arguments"); Commonwealth v. Fitzgerald, 376 Mass. 402, 419 (1978) (judge's instructions, including that arguments of counsel were not evidence, "sufficiently negated" prejudice resulting from prosecutor's improper argument).
Considering the factors discussed above, and again viewing the case in its totality, we are satisfied that the improper argument did not create a substantial risk of a miscarriage of justice in this case.
3. Cumulative effect of improper argument.
Lastly, the defendant argues that even if the individual errors did not require reversal, the cumulative effect of those errors does so. The argument is not without some force. Although we consider it a close question, after careful consideration, we conclude that the judge's instructions were sufficient to reduce any risk of a miscarriage of justice to something less than the "substantial risk" that would call for reversal.
The defendant refers in generalized terms throughout her brief to "sustained objections [that] were ignored by the prosecutor and not clarified by the trial judge," and directs us to consider their aggregate effect. Aside from an example of allegedly "unfairly suggestive questions [by the prosecutor] containing distorted facts" not borne out by the transcript, these references lack the specificity required to allow us to analyze these claims. The defendant likewise fails to provide any argument or authority supporting her contention that the judge erred in failing to declare a mistrial based on the prosecutor's improper argument.
Judgment affirmed.
The panelists are listed in order of seniority.