Opinion
No. 11–P–950.
2012-11-5
COMMONWEALTH v. Daniel Scott HUNT.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in District Court, the defendant was convicted of receiving a stolen motor vehicle, G.L. c. 266, § 28( a ). His lead argument on appeal is that he is entitled to a new trial based on an error that the prosecutor made during her opening statement. Because we agree, we reverse.
Background. While investigating an apparently unrelated matter, a police officer observed a car being driven by a man wearing a light-colored hat. After learning that the car had been reported stolen, the police officer doubled back to the car, which was at this time parked. The defendant, who was wearing a light-colored hat, was found standing outside the vehicle in close proximity to it. The keys to the vehicle were discovered near him on the ground. The defendant's defense was that he was merely an innocent passerby who happened to be in the wrong place at the wrong time. After the police returned the car to the victim, the victim pointed out that there was a key on her key chain that did not belong to her. That key was attached to a supermarket courtesy card. Through a statement made to police by Vinnie Ferlisi (apparently an employee of the supermarket), the police learned that the courtesy card belonged to the defendant. Prior to the trial, the defendant filed a motion in limine that, inter alia, sought to exclude police witnesses from testifying as to what Ferlisi told them (on hearsay grounds). On the day of trial, the judge allowed the motion with respect to Ferlisi's out-of-court statements. The prosecutor in fact assented to the motion with respect to those statements, and she noted that Ferlisi himself was unavailable to testify. Nevertheless, during her opening statement, the prosecutor told the jury that the police took the courtesy tag to the grocery store that had issued it and “it came back to [the defendant].” The defendant immediately asked for a mistrial, which was denied. The defendant then requested that the judge instruct the jury to disregard the prosecutor's reference to the courtesy tag. The judge instead gave a general instruction that opening statements do not constitute evidence.
Discussion. In an opening statement, a prosecutor may state “anything she reasonably, and in good faith, expect[s] to prove.” Commonwealth v. Qualls, 440 Mass. 576, 586 (2003), citing Commonwealth v. Errington, 390 Mass. 875, 883 (1984). At the time the prosecutor made her opening statement here, she was aware that evidence linking the defendant to the courtesy card would not be forthcoming. The Commonwealth concedes that the prosecutor's reference to that evidence was error,
but argues that the error was harmless. The question we face is whether the prosecutor's misstatement was of such potential prejudice that the defendant's timely request for a mistrial should have been granted. We agree with the defendant that it was.
Emphasizing the prosecutor's knowledge that the evidence would not be coming in, the defendant argues that the error could not have been made in good faith. The Commonwealth characterizes the error as “negligent” and “inadvertent,” and it argues that the prosecutor likely forgot that the evidence would not be admitted. For purposes of resolving this appeal, it is sufficient to note that the prosecutor could not have reasonably believed that the evidence would be forthcoming.
Although the Commonwealth had a robust case based on evidence properly admitted at trial, such proof was not overwhelming. It was up to the jury to determine whether reasonable doubt remained as to whether the defendant was the innocent passerby he claimed to be. Proof that the defendant's courtesy card had been put on the victim's key ring by itself would have eviscerated the innocent passerby defense. Moreover, this was a one-day trial in which the jury retired to deliberate less than three hours after hearing the prosecutor's reference to the devastating (but absent) evidence. Under these circumstances, even with the judge's instruction that opening statements should not be taken as evidence, we cannot say with any confidence that the prosecutor's misstatement could not have influenced the jury's verdict. This is one of those rare cases where an error in the prosecutor's opening statement was “irretrievably and fatally prejudicial to the defendant in the circumstances.” Commonwealth v. Bearse, 358 Mass. 481, 487 (1970). The defendant is therefore entitled to a new trial.
The defendant also argues that a sign-in sheet from the victim's place of work was improperly admitted under the business record statute. G.L. c. 233, § 78. That record showed that on the date that the victim's keys were taken from her workplace, someone signed in at that workplace using the same name as the defendant. The defendant argues, inter alia, that the sign-in sheet could not be considered sufficiently reliable absent a showing that someone at the workplace was verifying the identity of those signing it. That argument was recently rejected by the Supreme Judicial Court in analogous circumstances. Commonwealth v. Siny Van Tran, 460 Mass. 535, 551 (2011) (airline records properly admitted “not as proof of the defendants' actual identities as the passengers listed on the flight documents, but simply for the purpose of showing that the statements were made by someone, even, perhaps, a person being untruthful, who held themselves out to be these men”). The defendant additionally argues that the Commonwealth did not demonstrate that the sign-in sheet otherwise qualified as a business record. For example, he argues that the victim herself was not qualified to testify as to the manner in which the sign-in sheet records were kept. We do not reach such arguments because it is not clear that the Commonwealth will seek to introduce the document in the same manner in any retrial.
Judgment reversed.
Verdict set aside.