Opinion
11-P-373
11-23-2011
COMMONWEALTH v. RICK E. AMADO.
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 December 10, 2008, the defendant, Rick Amado, was convicted of murder in the second degree and arson of a dwelling house. He was acquitted of assault and battery. Amado appeals, arguing that (1) the trial judge erred in denying his motion for a mistrial, and (2) the trial judge allowed an improper question to a witness from the jury. We affirm.
Mistrial. The defendant argues that the judge erred in failing to declare a mistrial upon the defendant's second request for one, because curative instructions could not remedy the prosecutor's reference to improper prior bad act evidence. During the closing argument, the Commonwealth mentioned evidence of a prior altercation between the defendant and the victim. The Commonwealth also mentioned that testimony from the forensic pathologist supported the suggestion that there was a fight a week prior to the murder.
Earlier in the trial, a witness had made a statement suggesting that the witness and the defendant had punched the victim a week prior to the murder. The defendant objected to the statement, and the judge instructed the jury to disregard it. After the Commonwealth's closing statement, the judge again instructed the jury to ignore any references that may have been made to a prior altercation.
To the extent the evidence dealt with the relationship between the parties, we note that it would have been within the discretion of the judge to admit it. See Commonwealth v. Beneche, 458 Mass. 61, 80-81 (2010); Mass.G.Evid. § 404(b), at 38-39 (2011).
A judge's decision to declare a mistrial is within his discretion. See Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). The judge's ruling will not be overturned unless the defendant can show that 'no conscientious judge, acting intelligently, could honestly have taken the view expressed
. . . .' Commonwealth v. Cruz, 456 Mass. 741, 756 (2010). A judge may rely '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).
Here, the judge gave curative instructions to the jury, telling them that they could not consider any evidence of a prior confrontation. The judge further instructed the jury that the attorneys' arguments are not evidence and cannot be considered during the jury's deliberations. There was no abuse of discretion in denying the motion for a mistrial.
Juror's question. The defendant asserts that the trial judge improperly allowed a question from the jury to one of the witnesses, over the defendant's objection, asking whether the witness was right-handed or left-handed. The defendant argues that allowing the question was prejudicial error since it may have suggested to the jury that the witness, the defendant, and the victim had been involved in a fight a week prior to the murder.
Questions from jurors may be allowed in cases where, in the opinion of the trial judge, they are appropriate. Commonwealth v. Urena, 417 Mass. 692, 701-702 (1994). When such questions are allowed, the jury should be given the instructions outlined in Commonwealth v. Britto, 433 Mass. 596, 613-614 (2001). Britto also suggests that after a question from a juror is asked, counsel should be allowed to reexamine the witness, limited to issues raised by the question. Id. at 614. Such questioning serves two purposes. 'First, it cures the admission of any prejudicial questions or answers; and second, it prevents the jury from becoming adversary in its interrogation.' Ibid.
Here, at the beginning of the trial, the jury were properly instructed regarding questioning witnesses. The instruction was given again before deliberations. Counsel was given the opportunity to reexamine the witness after the juror's question, but did not ask any further questions.
Furthermore, the judge instructed the jury on two separate occasions to ignore any reference to a previous altercation between the victim, the witness, and the defendant. The judge's decision to allow the juror's question was permissible.
For these reasons, as well as substantially those in the brief of the Commonwealth, we affirm.
Judgments affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),