Opinion
No. 11–P–962.
2012-11-13
COMMONWEALTH v. Scott M. CHAPLIN.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions, following a jury-waived trial, for three counts of larceny of a firearm in violation of G.L. c. 266, § 30(1), and one count of breaking and entering a building in the daytime with intent to commit a felony in violation of G.L. c. 266, § 18. The defendant contends that it was error for the judge to admit in evidence a complete videotape interview of him by police, generally on the basis that the questions by police were inadmissible hearsay given his denial of the accusations that were being made, and thus prejudicial. Specifically, he complains of the admission of several statements the officer made during questioning of the defendant to the effect that a witness had positively identified him as the driver of the vehicle seen leaving the scene of the break-in.
In addition, he avers that it was error to admit the officer's statement that “I've looked at your record, you've been here before,” since it constitutes improper bad act evidence. First, we disagree with the defendant's averment that his claims of error were preserved by objection. While there was a discussion amongst counsel and the judge prior to the commencement of trial, in the nature of a motion in limine, trial counsel did not object when the videotape was offered in evidence other than to make a general comment about redactions; instead, he stated that he was willing to submit to the discretion of the judge, who he conceded would know what to consider and what to exclude from consideration. Additionally, the judge invited counsel to point out specific statements of concern but trial counsel made no such particularized objection. In any event, even if we were to consider the claim of error preserved, we discern no prejudice.
At trial, the officer acknowledged that his statements to that effect during the interview were false, and the witness who saw the vehicle leaving the scene also testified that he had not identified the defendant to police at that time.
It is well settled that accusatory statements by police during an interrogation are hearsay and inadmissible against a defendant where the defendant has denied the accusations. See Commonwealth v. Locke, 335 Mass. 106, 115 (1956). See also Commonwealth v. Cruz, 373 Mass. 676, 691 (1977) ( “[A]ccusatory questions followed by unequivocal denials are to be excluded from evidence”). Such statements are admissible “only if [the defendant] admits them or gives an equivocal reply which has the flavor of an admission.” Locke, supra (citations omitted). “Unless it is admissible under a different theory, a criminal defendant's denial of an accusation should be excluded as hearsay.” Commonwealth v. Henry, 37 Mass.App.Ct. 429, 432–433 (1994).
Here, however, the defendant's statements were not an unequivocal denial; instead, he admitted using his car both before and after the critical time period, and offered an explanation that an individual known to him only by a street name had borrowed his car and thereafter allowed two others unknown to the defendant to use it during the time at which this offense occurred. Moreover, as we have observed (see note 1, supra ), other evidence adduced at trial made clear that the officer's statements during the interview were not true, making it unlikely that the judge, sitting without a jury, would have accorded them probative weight. See Commonwealth v. Kerns, 449 Mass. 641, 655 (2007) (“[W]hen a case is tried without a jury ... it is presumed that the judge as trier of fact applies correct legal principles” [citation omitted] ). Given these circumstances, we are confident that the judge was not influenced, even slightly, by these accusatory statements of the police officer; thus, their admission furnishes no cause to disturb the judgment.
While it perhaps would also have been preferable to redact the officer's statement that he had seen the defendant's record and that he's “been here before,” we are also satisfied that such a generalized statement had no influence on the judge, especially since she also would have had the defendant's explanation of his good conduct in excess of twenty years.
Judgments affirmed.