Opinion
No. 11–P–2120.
2012-11-26
COMMONWEALTH v. Carol KAMPEN.
By the Court (GRASSO, VUONO & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of two counts of attempted murder after setting fire to her house and barricading herself and her two young children inside. In his opening statement the prosecutor told the jury that he expected the evidence to show that after setting the fire, the defendant told the children “to breathe deep because they will die quicker.” During his direct examination of the elder child, the prosecutor asked if the defendant had “[said] anything to [the children] about breathing smoke.” The defendant objected, and the judge sustained the objection. In spite of this, the witness answered, “Not that I remember.” There was no motion to strike the answer.
The defendant was also convicted of arson and two counts of kidnapping. She has not appealed those convictions.
The defendant now argues that merely by asking the question, the prosecutor so prejudiced the defendant's case as to require reversal of her conviction. However, the defendant's instruction to her sons to inhale smoke came into evidence both through the other child's testimony and through a police officer's testimony that the defendant had admitted making the statement. The judge twice instructed the jury that the evidence consisted of witnesses' answers rather than counsel's questions, and the witness's answer to the question was beneficial to the defendant. Moreover, the evidence of the defendant's guilt was overwhelming independent of the objected-to question. We discern no reason to disturb the verdict.
Judgments affirmed.