Opinion
13-P-1976
12-03-2014
COMMONWEALTH v. CHRISTOPHER WHITE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction of larceny over $250, the defendant contends that the evidence was insufficient to support the conviction. Specifically, he contends that the Commonwealth's evidence did not establish that the stolen property had a value in excess of $250. We discern no cause to disturb the judgment and affirm.
The defendant was also convicted of use of a motor vehicle without authorization. He does not challenge that conviction on appeal.
As a threshold matter, we observe that there is no merit to the defendant's contention that the trial judge erred in admitting the victim's testimony that the items left in the vehicle stolen by the defendant, which were never recovered, had a value in excess of $250. As the trial judge observed at the time the victim gave such testimony, the defendant raised no objection. It is axiomatic that the admission of testimony to which no objection is raised ordinarily is not error. See, e.g., Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192 (2002). Without an objection, such testimony is admitted for all purposes and may be given such probative effect as the finder of fact deems appropriate. See Abraham v. Woburn, 383 Mass. 724, 726 n.1 (1981). See generally Mass. G. Evid. § 103(a)(1) (2014).
In limited circumstances, such as where there is reason to question the voluntariness of a statement under the humane practices rule, a trial judge has an affirmative obligation to intervene in the absence of an objection before admitting the evidence. No such special circumstances, however, apply to the present case.
The rule is particularly appropriate in circumstances such as those present here, where the unpreserved challenge to the admission of evidence is based on a claim that the foundation supporting admission was inadequate. If timely objection is raised at the time evidence is offered, the party offering the evidence has an opportunity to submit additional evidence to address any shortcomings in the foundation submitted to that point.
Because the defendant did not object to the victim's testimony that the stolen items had a value in excess of $250, there was no error in its admission, and the trial judge was entitled to credit it. Accordingly, that testimony alone dispenses with the defendant's contention that the evidence of value was insufficient.
Because no objection was made to the testimony, we need not address the Commonwealth's contention that the foundation was adequate to allow admission of the evidence, even had an objection been raised.
Commonwealth v. Dion, 31 Mass. App. Ct. 168, 175 (1991), is not to the contrary. In that case, the court observed that a finding based on legally insufficient evidence is inherently serious enough to give rise to a substantial risk of a miscarriage of justice. Ibid. However, sufficiency of the evidence is assessed on the basis of all evidence admitted at trial, including even evidence admitted in error. See, e.g., Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010), and cases cited. Consistent with that premise, the court in Dion assessed the sufficiency of the evidence admitted at trial; it did not consider whether evidence admitted without objection but challenged on appeal contributed to the guilty verdict.
We reiterate that there ordinarily is no error in the admission of evidence to which no objection is raised.
We are likewise unpersuaded by the defendant's resort to Commonwealth v. Myer, 38 Mass. App. Ct. 140, 143 (1995). In that case, the defendant objected at trial to the evidence forming the basis for his challenge on appeal. The court concluded that the objection was untimely, but that a timely objection would have been overruled in any event.
Judgment affirmed.
By the Court (Green, Rubin &
The panel is listed in order of seniority.
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Clerk Entered: December 3, 2014.