Opinion
14-P-1485
02-23-2016
COMMONWEALTH v. ROBERT M. SOUZA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert M. Souza, appeals from the judgments after a jury convicted him of four counts of violating an abuse prevention order. On appeal he raises one issue, arguing that the trial judge erred by not, sua sponte, giving a curative instruction to the jury regarding the victim's answer to the question, "Why didn't you call the police?" The victim answered, "[B]ecause [the defendant] has always said when he goes in he'll get out, and when he gets out he'll do something." The judge immediately excused the jury and instructed the Commonwealth that the victim should not testify about the defendant's prior threats. The Commonwealth explained to the victim that she could not testify about the defendant's previous threats and the trial proceeded.
The defendant moved for a mistrial, but he did not move to strike the statement or for a curative instruction, and did not object to the final instructions. On appeal he does not argue that judge erred in denying the motion for a mistrial. The defendant argues that his actions were sufficient to preserve the issue of the judge's failure to give a curative instruction. We disagree. See Commonwealth v. Perry, 15 Mass. App. Ct. 932, 933 (1983). The trial judge would not have been sufficiently apprised of the defendant's concern about a curative instruction by his motion for a mistrial, made only after the judge acted to curb the witness. We review, therefore, to determine whether the lack of a curative instruction was error and if so whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 848 (2010).
Whether to give the jury a curative instruction is a matter that is committed to the discretion of the trial judge. Commonwealth v. Qualls, 440 Mass. 576, 584 (2003). The defendant has not demonstrated that the judge abused his discretion. After the victim was instructed not to refer to the defendant's previous threats, she complied. There is no indication in the record that the Commonwealth intentionally elicited the reference. Furthermore, in such circumstances there is a risk that a curative instruction will draw attention to the statement, thus counsel may well have decided not to request a curative instruction. See Commonwealth v. Lao, 460 Mass. 12, 21 (2011).
The statement was, in fact, relevant and admissible. The defendant's theory of the case was that the victim had fabricated the violation of the abuse prevention order. As he recognizes, he "opened the door" to the testimony, particularly in his opening statement when he referred to the victim's failure to telephone the police. See Commonwealth v. Anestal, 463 Mass. 655, 665 (2012) (prior bad act evidence admissible if rebuts defendant's contentions at trial). Even if we were to consider the admission of the statement error, considering the evidence against the defendant, including his confession to the violations during booking, any error did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 23, 2016.