Opinion
10-P-1349
10-19-2011
COMMONWEALTH v. AARON K. CALDWELL.
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
Miranda warnings are only necessary where interrogations take place in a custodial setting. Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007). We agree with the Commonwealth that in this case the defendant was not in custody at the time the police officer spoke with him. Consequently no Miranda warnings were required.
As to the admission of the photographs, we have examined them and conclude that, even if the defendant's objection to their admission on grounds that their prejudicial effect outweighed their probative value was properly preserved -- and it appears not to have been -- there was no abuse of the judge's discretion in admitting them.
Finally, an objection to the portion of the closing to which the defendant points was not properly preserved. We therefore review the claim of error to determine whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Sherick, 401 Mass. 302, 303 (1987). The prosecutor's use of the first person in describing who the defendant said had retaliated did not create a substantial risk of a miscarriage of justice. Indeed, having examined the testimony, we think it was a permissible inference that the defendant was among the persons who retaliated; there was no error. Therefore, even under the standard of review for preserved error this would not present a basis for a new trial. Further, were we applying the standard for preserved error, even if we found one, we think the judge's instruction to the jurors that the opening and closing arguments from the lawyers were not evidence and that if the jurors' memories of the testimony differed from that of an attorney's, they should follow their own recollections, would have sufficed to cure it.
Judgments affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),