Opinion
No. 11–P–1089.
2012-05-21
COMMONWEALTH v. Mary E. WHITCHER.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in District Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol, G.L. c. 90, § 24(1)( a )(1). In a separate bench trial, she was convicted of operating under the influence, third offense. We affirm.
Background. During direct examination, the prosecutor asked a police officer about certain questions he posed to the defendant during her booking. When the prosecutor inquired whether the officer had asked the defendant if she were pregnant, the defendant objected. This led to an extended side bar discussion, much of which the transcript references as “inaudible.” From what does appear in the transcript, it is evident that the defendant argued that whether she was pregnant was not relevant, and that, in any event, the prejudicial impact of this evidence outweighed any probative value.
The judge apparently initially agreed with this assessment, but, after characterizing the issue as a “very close call,” subsequently changed his mind. He therefore allowed the prosecutor to elicit from the officer that the defendant had acknowledged that she was pregnant. He also allowed the jury to watch a videotape of the booking process, which showed the defendant answering the pregnancy question (among many others).
Contrary to what the Commonwealth argues on appeal, the record also indicates that the defendant made at least some argument that the pregnancy evidence could not be admitted without expert evidence regarding how much a pregnant woman should drink. Given how we rule, we need not reach this issue.
During a side bar discussion about the videotape, the judge explained his view that the pregnancy evidence went to the defendant's mental judgment. The judge did direct the prosecutor not to raise the pregnancy issue in his closing argument, and the prosecutor complied.
The Commonwealth argues that the defendant agreed to show the jury the videotape without the pregnancy question redacted, and therefore waived any objection. This appears to be inconsistent with the record. Immediately after the prosecutor told the judge that the parties had reached an agreement about how much of the videotape could be shown to the jury, the judge himself addressed the pregnancy issue and the defendant again argued (unsuccessfully) why the pregnancy evidence should not be admitted. Toward the end of this discussion, the judge specifically indicated that the defendant's “objection is noted.”
Discussion. Whether the probative value of particular evidence is outweighed by its prejudicial effect is a question that falls to the discretion of the trial judge. Commonwealth v. Tobin, 392 Mass. 604, 613, 467 N.E.2d 826 (1984). In our view, the judge abused that discretion in overruling the defendant's objection to the testimony that she was pregnant. The theory of relevance accepted by the judge-that the defendant's pregnancy went to her mental judgment-is inherently problematic. While the evidence of her having consumed alcohol while pregnant may indeed evince her poor judgment, that largely amounts to improper character evidence. See, e.g., Commonwealth v. Bonds, 445 Mass. 821, 829–830 & n. 12, 840 N.E.2d 939 (2006); Commonwealth v. Stuckich, 450 Mass. 449, 459, 879 N.E.2d 105 (2008). Theoretically, it might be argued that the defendant's continuing to drink despite her being pregnant showed that alcohol had already clouded her judgment and was therefore probative of whether she could safely operate a motor vehicle.
However, that probative value is sufficiently attenuated that we believe it was plainly outweighed by the evidence's potential for prejudice.
The Commonwealth does not actually press this argument on appeal, but instead focuses on lack of prejudice.
Nevertheless, we affirm the conviction because the evidence of the defendant's intoxication was sufficiently strong that we can “say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983). That evidence came in many forms: the defendant's erratic driving;
her repeated unresponsiveness to the officer's requests that she provide her license and registration followed by her producing a credit card to the officer; her admission to the police that she had consumed five drinks;
When the police stopped her vehicle after observing a nonfunctioning headlight, she pulled onto the curb and almost hit a parking meter.
her commenting to the police in declining to take a field sobriety test: “What's the point?”; and police observations that her eyes were bloodshot and glassy, and that she smelled of alcohol, was unsteady on her feet, and had trouble answering questions and completing sentences. In the face of that quantum of evidence, and where the prosecutor made no mention of the defendant's pregnancy during closing argument, we do not believe that the jury's hearing in passing that the defendant was pregnant had any significant impact on the jury's deliberations. Compare Commonwealth v. Valentin, 420 Mass. 263, 270–272, 649 N.E.2d 1079 (1995). Thus, although we agree with the defendant that the evidence that she was pregnant should not have been admitted, we conclude that reversal of her conviction is not warranted.
She initially told the arresting officer that she had one drink, but later admitted to him that she had had three. At her booking, she admitted to having had four drinks, and then-in response to a question about the kinds of drinks she consumed-she listed five.
Judgment affirmed.