Opinion
13-P-1682
01-30-2015
COMMONWEALTH v. RICHARD J. CAUTELA.
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
The defendant, Richard J. Cautela, was charged with: (1) operating under the influence of intoxicating liquor in violation of G. L. c. 90, § 24(1)(a)(1); (2) negligent operation of a motor vehicle in violation of G. L. c. 90, § 24(2)(a); and (3) two civil infractions, one marked lanes violation and one speeding violation. A jury acquitted the defendant of operating under the influence, but convicted him of negligent operation of a motor vehicle. He was also found responsible for the two civil infractions. On appeal, the defendant argues that his conviction should be vacated due to the admission of unfairly prejudicial evidence at trial and errors in the prosecutor's closing argument. We affirm.
1. Evidentiary issue. The defendant argues that the judge erred in admitting Officer Trefry's testimony that when asked about his marital status while being booked at the police station, the defendant "chuckled" and replied, "She's a whore." The defendant objected to this testimony and properly preserved this issue for appeal. Therefore, if we determine the admission of this testimony to be error, we apply harmless error analysis and ask whether the error influenced the jury, or had but a very slight effect. Commonwealth v. Hrabak, 440 Mass. 650, 656 (2004).
The Commonwealth contends that the evidence is relevant, as the defendant's statement suggested that he was intoxicated. While "[t]he relevance threshold for the admission of evidence is low," Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004), we also entrust the trial judge with the determination whether the proffered evidence's probative value is substantially outweighed by the "unfairly prejudicial effect it might have on the jury." Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 24 (1990).
Testimony regarding the defendant's comment presents a close case, as its probative value was low, even on the issue of intoxication, and its inclusion in evidence had potential to inflame the passions of the jury. See Commonwealth v. Berry, 420 Mass. 95, 109 (1995). However, even if we were to determine that the judge erred in admitting this testimony, the record before us indicates that the error was harmless. Integral to our decision is the fact that the defendant was acquitted on his operating under the influence charge. This indicates that the jurors were careful in their consideration of the evidence and were not substantially swayed by the testimony in question. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987); Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997). There was also ample evidence to support the negligent operation charge. The defendant was driving over sixty miles per hour, when the speed limit was thirty-five miles per hour, and he straddled the double yellow center line, drifted back into his lane, and straddled the center line again.
2. Prosecutor's closing argument. Next, the defendant argues that the prosecutor made a total of seven improper statements during her closing argument. Given that the defendant failed to object to these statements at trial, we review his claim to determine whether there was error and, if so, whether such error created a substantial risk of a miscarriage of justice. Commonwealth v. Shanley, 455 Mass. 752, 773 (2010).
Central to substantial risk analysis is whether we are persuaded that the error did not materially influence the defendant's guilty verdict. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Six of the seven challenged statements were made in reference to the consumption of alcohol and the defendant's operating under the influence charge. Because the defendant was acquitted on that charge, however, it is clear that these statements could not have materially influenced the verdict, even if we were to assume that they were made in error. Thus, these statements did not create a substantial risk of a miscarriage of justice.
As for the remaining challenged remark, the prosecutor stated: "What else did Officer Trefry testify to? That twice he saw this defendant . . . make what he called marked lane violations, that the defendant's vehicle was straddling the yellow line. Now understandably, there's been some controversy as to whether or not this happened." The defendant contends that this remark misstated the evidence and misled the jury.
While the defendant is correct in pointing out that Officer Trefry did not specifically testify that the defendant made "marked lane violations," this minor misstatement of the officer's testimony did not give rise to a substantial risk of a miscarriage of justice. Our conclusion is supported by the defendant's failure to challenge the statement at trial. "The failure of counsel to object to statements made by a prosecutor during the closing is a matter to which we attach significance," as it is "a sign that what was said sounded less exciting at trial than appellate counsel now would have it seem," and serves as "some indication that the tone [and] manner . . . of the now challenged aspect of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Leach, 73 Mass. App. Ct. 758, 768 (2009) (quotations omitted). Moreover, the judge's instruction that the jurors rely on their own recollections of the evidence, rather than the attorneys' opening and closing arguments, mitigated any such error. Ibid. Hence, the prosecutor's closing statement posed no substantial risk of a miscarriage of justice.
Conclusion. For the reasons articulated above, we affirm the defendant's conviction.
Judgment affirmed.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 30, 2015.