Opinion
16-P-43
01-11-2017
COMMONWEALTH v. John P. DROOGAN, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury found the defendant guilty of reckless operation of a motor vehicle and operating under the influence of alcohol. After trial, the defendant stipulated that this was his fifth operating under the influence offense.
The defendant appeals from an order denying his motion for a new trial. The defendant argues that the motion judge, who was also the trial judge, erred in denying the motion because he evaluated an improper question asked by the prosecutor under the wrong standard of review. According to the defendant, the judge should have applied a prejudicial error standard, but instead, applied a "substantial likelihood" of a miscarriage of justice standard.
We address only the question that the defendant challenged in his motion for a new trial.
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Here, the defendant had objected to the question, and the judge immediately sustained the objection. The judge also immediately instructed the jury to disregard the question and that questions were not evidence. The defendant did not move for a mistrial. Nonetheless, we review for prejudicial error, see Commonwealth v. Torres , 86 Mass. App. Ct. 272, 280 (2014), and conclude that there was no error, but if there was, the defendant was not prejudiced.
The question regarding whether the defendant struggled with alcoholism was not improper in light of the evidence at trial. The defendant had testified that he had alcohol with dinner. The prosecutor had, as the motion judge found, a good faith basis for asking the question.
Furthermore, even if the question was improper, the prosecutor did not mention the issue in closing argument, see Commonwealth v. Rebello , 450 Mass. 118, 129 (2007), and the judge, immediately following the question, sustained the defendant's objection and provided the jury with curative instructions, see Commonwealth v. Petersen , 67 Mass. App. Ct. 49, 53-54 (2006). The judge may rely on curative instructions "as an adequate means to correct any error and to remedy any prejudice to the defendant." Commonwealth v. Costa , 69 Mass. App. Ct. 823, 827 (2007). We conclude that there was no error, but if there was, the defendant was not prejudiced.
Order denying motion for new trial affirmed .