Opinion
No. 11–P–420.
2013-01-28
COMMONWEALTH v. Leander F. CHUTE.
By the Court (KANTROWITZ, BERRY & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of operating under the influence of intoxicating liquor, G.L.c. 90, § 24. On appeal, the defendant advances two arguments: first, that the trial judge erred in allowing a trooper's testimony relating to the contents of a police radio dispatch, and that this error created a substantial risk of miscarriage of justice; and second, that the trial judge's refusal to give a curative instruction relating to an alleged misstatement in the prosecutor's closing argument was prejudicial error. We affirm.
The defendant was also found responsible for three traffic violations. They were filed with the defendant's consent.
The challenged radio dispatch testimony offered by the trooper was as follows: “I was dispatched by the Shelburne State [p]olice [b]arracks, [d]esk [o]fficer Trooper Eric Bowman to look for a certain vehicle described as a black Dodge Dakota pickup truck, bearing New Hampshire registration 2707092.... [T]he vehicle was advised to Trooper Bowman to be traveling southbound on [r]oute 91 from Vermont.”
There was no defense objection to the testimony. On appeal, the defendant claims that this testimony was impermissible hearsay. We disagree. The trooper's testimony fell within the permissible scope of explaining “the state of police knowledge which impelled the approach to the defendant.” Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). “[A]n arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct.” Ibid. There was no error.
We reject the defendant's contention that the trooper's testimony concerning the radio broadcast violated Sixth Amendment rights of confrontation. First, as noted, the radio broadcast information provided context for the trooper's action, and the basis for the police notice and knowledge. It was not substantive evidence offered for the truth thereof. Second, the trooper was a witness subject to cross-examination concerning the radio broadcast.
Next, the defendant argues that it was prejudicial error where, following a defense objection, the judge declined to give a curative instruction concerning what the defendant submits was an error in the prosecutor's closing argument. We see no such error warranting a curative instruction. The defendant contends that the prosecutor erroneously stated in closing that the defendant left his home between 3:00 P.M. and 4:00 P.M. on the day of his arrest, which conflicts with the testimony of the defendant's son. The defendant's description of the closing reference is not accurate. The prosecutor stated only that the defendant's son “saw” the defendant at the defendant's home at some point between 3:00 P.M. and 4:00 P.M.—not that the defendant left the home at that time. The prosecutor's statement accurately reflects the testimony of the defendant's son. Hence, no curative instruction was required.
Judgment affirmed.