Opinion
14-P-624
01-30-2015
COMMONWEALTH v. RICHARD J. DEPRIMEO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions in the District Court of negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a), and a marked lanes violation, G. L. c. 89, § 4A. He asserts error in the testimony of the police officer who issued the citation for negligent operation, and ineffective assistance because his counsel did not move to strike the testimony at issue. We refer to the facts in our discussion as they pertain to the issues.
Police officer's testimony. The officer who issued the citation testified without objection on direct examination that after the accident underlying the charges, the defendant stated he had been reaching across the front passenger seat for a cup of coffee while driving. Defense counsel returned to this subject on cross-examination, and the officer stated:
"Based upon the conditions of the roadway and the actual roadway itself, I didn't feel it was reasonable for someone to reach across the seat, and take their eyes from the road, and put the public at risk."Defense counsel again elicited the same testimony from the officer at the end of his cross-examination:
Q. "Just one last thing. Did I understand you correctly, sir, to say that you didn't believe it would be reasonable to reach across to the passenger side for his coffee? Is that what you said?"
A. "Yes. Not given the conditions of the roadway or that, ah, the weather at that time."
The defendant argues that this testimony created a substantial risk of a miscarriage of justice because the officer was commenting on the ultimate issue in the case. The commission of one unreasonable act, engaging in distracted driving, while constituting an element probative of the charge, is not alone the equivalent of negligent operation. Here however, the question is much closer, as counsel elicited testimony that incorporated several elements of the charge including weather and road conditions and, more troubling, the officer opined that the defendant had "put the public at risk." Assuming, but not deciding, that this testimony invaded the province of the jury, we conclude that it did not create a substantial risk of a miscarriage of justice in the context of the trial evidence viewed in its entirety.
As the Commonwealth correctly points out, speed, weather conditions, traffic density, road configuration, and numerous other factors are pertinent to a conviction for negligent operation. See Commonwealth v. Gurney, 261 Mass. 309, 312 (1927) (sightlines, opportunity to avoid accident, speed); Commonwealth v. Charland, 338 Mass. 742, 744 (1959) (speed); Commonwealth v. Campbell, 394 Mass. 77, 83 (1985) (crossing center line, speed); Commonwealth v. Burno, 396 Mass. 622, 624 (1986) (number of individuals endangered).
Three other witnesses testified that it was inclement at the time of the accident, recalling rain, sleet, snow, or some combination of these. One witness, travelling behind the defendant, testified that she kept an even distance from his car and conceded that they were "kind of speeding." She also testified that the defendant neither used his directional signals nor activated his brake lights at any time before the collision. The accident happened at a bend in the road, entitling the jury to infer negligence from a failure to reduce speed to an even greater extent than would have been prudent on a straight stretch. The citing officer testified that "the roads were wet," and that traffic was "generally heavy." Finally, while not dispositive, the jury were entitled to take into consideration that the defendant's car crossed the center line, went into the oncoming lane and collided with a vehicle that was traveling in its designated lane.
Cross-examination of defendant. The defendant testified on his own behalf, and denied that he told the police that he had been reaching across the seat for his coffee at the time of the accident. On cross-examination, the prosecutor confronted the defendant with the discrepancy between his testimony and that of the officer, culminating that line of inquiry with the question, "Are you calling Officer Carlson a liar?" No objection was raised, but the judge interrupted the proceedings at that point. A sidebar discussion ensued. Thereafter, no further questions were asked, and the defendant rested.
The relevant exchange was as follows:
Q. "It's fair to say your memory differs greatly from Officer Carlson --"
A. "Um --"
Q. "-- about the coffee cup?"
A. "Fair to say Officer Carlson made it up. I'm fair to say. I didn't have a coffee in the car."
Q. "And now, you heard Officer Carlson's an eight-year police officer?"
A. "Yes."
Q. "And, he walked up here, he took an oath to tell the truth?"
A. "Yes."
Q. "And, you're taking that same oath to tell the truth here today --"
A. "Yes, sir."
Q. "The entire truth?"
A. "Yup."
Q. "So, just so I have it for my understanding, are you calling Officer Carlson a liar?"
The question was improper. Commonwealth v. Johnson, 412 Mass. 318, 328 (1992) (attempt to have defendant assess credibility of other witnesses "obviously improper"). In the context of the evidence as a whole, however, we are not persuaded that the error created by a single unanswered question produced a substantial risk of a miscarriage of justice. Commonwealth v. Ward, 15 Mass. App. Ct. 400, 402 (1983) ("Only one single improper question," to which the answer was not responsive, did not result in prejudicial error). See Commonwealth v. Kines, 37 Mass. App. Ct. 540, 543 (1994).
Justice Smith's concluding sentence in Ward bears repeating: "The fact that we find no prejudicial error in this case, however, should not be viewed as lessening our condemnation of the practice employed here." Ward, supra at 402
The judge properly instructed the jury that questions are not evidence, and that they alone have the responsibility to resolve conflicts in the evidence and determine the truth for purposes of their verdict. We conclude that the prosecutor's error did not result in a substantial risk of a miscarriage of justice.
We are also unpersuaded by the defendant's assertion that a single reference in the prosecutor's closing, that there was "no mention of any slipping [or] any sliding [or] any other reason [the defendant] ended up in the entirely other lane of travel," taken out of context, constitutes burden shifting which aggravated the effect of the improper question about the officer's credibility. The prosecutor stated two sentences later that his burden was "not to show exactly how or exactly why [the defendant] failed to use that due care, but that it happened." We review the closing in its entirety, not piecemeal. Commonwealth v. Phillips, 452 Mass. 617, 630 (2008). In any event this was proper commentary on the discrepancy in testimony between the defendant and the officer. Commonwealth v. Williams, 450 Mass. 879, 888-889 (2008).
Ineffective assistance. Substantially for the reasons set forth in our consideration of the defendant's claims of error, supra, we conclude that the defendant was not prejudiced by ineffective assistance of counsel. While the cross-examination of the officer needlessly invited repetition of the testimony that the defendant had admitted he was reaching for a coffee cup, the single reference to a fact already in evidence did not create a substantial risk of a miscarriage of justice and thus failed to satisfy the second prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The question by defense counsel that elicited the opinion by the police officer that various factors "put the public at risk" would have been properly subject to a motion to strike had one been made. We do not consider this omission to have been prejudicial in view of the other evidence of negligent operation recited above. Cf. Commonwealth v. Sepheus, 468 Mass. 160, 172 (2014). We note in addition, that while the omission is in contrast to counsel's successful objection to opinion testimony provided on direct examination by the same witness, the record reveals at least the possibility that eliciting a clear display of conclusory statements by the police officer would support the defense strategy pursued in closing argument, namely that the police officer was biased in favor of the firefighter who was driving the other car. Thus the claim founders on both prongs of Saferian, supra. The same result obtains to counsel's failure to object to the prosecutor's improper, albeit unsuccessful, attempt to have the defendant comment on the truthfulness of the officer's testimony.
Judgments affirmed.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 30, 2015.