MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of operating a motor vehicle under the influence of alcohol, second offense. At trial, the prosecutor referred in his opening statement to officers being dispatched based upon a 911 call regarding an “erratic operator,” despite a pretrial ruling precluding the Commonwealth from referencing what was said in the 911 call. The defendant moved for a mistrial, which the judge denied. The defendant now argues that the denial of the mistrial was error, requiring a new trial. We affirm.
Background. On March 9, 2019, a police officer came upon the defendants vehicle stopped in the middle of a dead-end road in Sandwich. The officer observed the defendant back his car into a snowbank while trying to turn around. The officer testified that he backed up his police cruiser to give the defendant more room, but the defendant still almost collided with the cruiser -- stopping just short of its front bumper.
At that point, the defendant got out of the car and walked toward the police cruiser, and the officer also got out of his cruiser. The defendant stated that he was unable to turn the car around. The officer observed that the defendant was unsteady on his feet, had glassy and bloodshot eyes, and was attempting to smoke an unlit cigarette. The officer also saw an open, half-empty can of Budweiser and some nips of Jim Beam in the front seat of the defendants vehicle, and many empty Budweiser cans in the back seat. The officer arrested the defendant. During transport to the police station, the defendant gave off a strong odor of alcohol and described himself as “fucked up.” The defendant was charged with one count of operating under the influence of liquor, second offense, and one count of possession of an open container of alcohol in a motor vehicle.
Just before trial, defense counsel orally moved in limine that the Commonwealth be precluded from “refer[ring] to the reason why the [o]fficer was there,” noting that the 911 caller was not a witness. The judge ruled, “Well, if theres any hearsay, that wouldnt come in․ [T]he [o]fficer can indicate that he went to the scene looking for a motor vehicle.” A prosecutor other than the trial prosecutor agreed that the Commonwealth would not be “offering any hearsay.”
Shortly thereafter, the trial prosecutor began his opening statement as follows:
“Today, I anticipate you are going to hear testimony from a member of your community that, on March 9th, Saturday afternoon, of 2019, officers were dispatched in regards to a telephone call that had come into the emergency operator regarding an erratic operator.”
At this point, the judge stopped the prosecutor and called counsel to sidebar.
At sidebar, the judge reminded the prosecutor that the Commonwealth had previously represented to the judge that it would not reference any statements made in the 911 call. Defense counsel moved for a mistrial at sidebar, which the judge denied. Defense counsel did not request a curative instruction, and the judge did not issue one. After the sidebar, defense counsel again moved for a mistrial, this time in front of the jury. The judge initiated another sidebar, denied the motion, and advised defense counsel not to make such a motion again in front of the jury. The 911 call was not referenced again during trial.
The jury found the defendant guilty of operating under the influence of liquor, and the defendant subsequently pleaded guilty to the second offense portion of the charge.
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This appeal followed.
Discussion. The defendant argues on appeal that the prosecutors reference to the 911 call about an “erratic operator” was “overwhelmingly prejudicial,” and that the judge therefore erred by denying the defendants motion for a mistrial. We disagree.
We review the judges decision to deny a motion for a mistrial for abuse of discretion. See Commonwealth v. Bryant, 482 Mass. 731, 739 (2019); Commonwealth v. Silva, 93 Mass. App. Ct. 609, 614 (2018). The defendant has a heavy burden in arguing that the judge abused his discretion in denying the motion for a mistrial, because “[t]he trial judge is in the best position to assess any potential prejudice and, where possible, to tailor an appropriate remedy short of declaring a mistrial.” Commonwealth v. Martinez, 476 Mass. 186, 197 (2017). As noted, here the thrust of the defendants argument is that it was overwhelmingly prejudicial for the jury to hear during opening that some (unidentified) member of the public had reported that an operator, inferably the defendant, was driving “erratic[ally].”
The reference by the prosecutor was improper, as the judge had previously ruled that the Commonwealth could not mention during trial what was said in the 911 call.
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However, our cases are clear that an improper reference in an opening statement to evidence that will not be admitted need not result in overturning a conviction, “[a]bsent a showing of bad faith or prejudice.” Commonwealth v. Qualls, 440 Mass. 576, 586 (2003).
The defendant made no such showing here. He argues only that the improper reference in opening statement was prejudicial, not that it was made in bad faith.
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The prejudicial impact of an improper argument must be assessed in the context of “the entire argument, the judges instructions to the jury, and the evidence actually introduced at trial.” Commonwealth v. Thomas, 429 Mass. 146, 158 (1999). In doing so, the key inquiry is whether “the force of the prosecutors opening remarks was overwhelmingly prejudicial and likely to leave an indelible imprint on the jurors’ minds,” when considered in the context of the entire trial (quotation and citation omitted). Commonwealth v. Morgan, 449 Mass. 343, 361 (2007).
Here, the prosecutors comment was of minimal consequence in the context of the entire trial. The prosecutor referenced the “erratic operator” statement in the 911 call only once, and it was not mentioned again after the judge admonished the prosecutor at sidebar. Moreover, the jury heard other direct evidence of erratic operation from the officer who encountered the defendant -- including that the defendant backed into a snowbank, almost hit the police cruiser, and ultimately could not turn his car around. The prosecutors reference to an “erratic operator” was much less detailed, and therefore less consequential, than the properly admitted evidence regarding the defendants erratic operation of his vehicle. See Thomas, 429 Mass. at 157-158.
Moreover, we “view the prosecutors remarks not only in light of the whole statement, but also in the context of the judges instructions to the jury.” Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 11 (2000). Here, the judge repeatedly instructed the jury that opening statements were not evidence. Defense counsel did not request a curative instruction,
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and we are not persuaded by the defendants argument on appeal that the judge erred by failing to issue a sua sponte instruction under the circumstances. See Commonwealth v. Auclair, 444 Mass. 348, 357-358 (2005) (no abuse of discretion from absence of curative instruction after motion for mistrial).
Judgment affirmed.
FOOTNOTES
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. The judge found the defendant not responsible as to the possession of an open container charge.
3
. The Commonwealth argues that the prosecutors opening statement did not reference the content of the 911 call. We disagree -- the statement that the car was being operated “erratic[ally]” is substantive, potentially giving rise to the inference that its operator was impaired.
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. A different prosecutor was present when the judge ruled to preclude the hearsay in the 911 call, and that prosecutor agreed not to reference it. This does not excuse the Commonwealth from ensuring that the prosecutor trying the case abides by an order on a pretrial motion. We do not, however, perceive any indication in the record that the trial prosecutor acted in bad faith when he referenced the 911 call.
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. We also note that defense counsel may have made a strategic choice to avoid requesting a curative instruction, to avoid focusing the jurys attention on the reference to the 911 call.