Opinion
No. 15–P–159.
07-21-2016
COMMONWEALTH v. Warren WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the West Roxbury Division of the Boston Municipal Court Department, the defendant was convicted of one count of larceny over $250 from his employer, Home Depot. On appeal, the defendant contends he was unfairly prejudiced by the admission of prior bad acts evidence. Specifically, he asserts that he was unfairly prejudiced by several statements made in succession by a Commonwealth's witness during his testimony on direct examination. We affirm.
We note that under either standard of review—the prejudicial error standard for preserved error or the substantial risk of a miscarriage of justice standard for unpreserved error—the outcome we reach is not altered.
We consider the defendant's challenges in the order in which the testimony was given at trial. The defendant first takes issue with the witness's testimony that he “looked at some of the other times that [the defendant] was working on the register” to establish whether the defendant previously had stolen from the store. After the witness answered the question, defense counsel lodged an objection but did not articulate his reasons. Nevertheless, the judge sustained the objection and removed the information from the jury's consideration. We perceive no error. See Commonwealth v. Ragland, 72 Mass.App.Ct. 815, 837 (2008).
Notably, in the judge's preliminary instructions, the judge charged the jury to disregard testimony elicited in response to a sustained objection. We presume that the jury followed these instructions. See Commonwealth v. Ragland, 72 Mass.App.Ct. 837–838 (2008).
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The witness also testified that he “had an open investigation going” as to the defendant, and “wanted to see if this was an instance where it had happened once or if this was an ongoing issue.” Defense counsel objected to the witness's response. The judge did not rule on the objection. Rather, the judge addressed counsel at sidebar and, when the prosecutor resumed his examination of the witness, he abandoned that line of questioning. The witness's statement did not indicate that the defendant was the subject of an earlier investigation. Nor did it suggest the defendant had stolen before. At most, the jury could reasonably infer from this testimony that the witness wanted to know whether or not the charged conduct was an isolated incident; it does not constitute “evidence that [the] defendant previously has misbehaved, indictably or not.” Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Commonwealth v. Baptista, 86 Mass.App.Ct. 28, 32 (2014) (judge properly denied motion for a mistrial where “[t]he reference was fleeting and vague; it did not apprise the jury of the defendant's prior bad acts”). We perceive no error.
Next, the defendant contends it was improper for the judge to admit testimony that the witness “asked [the defendant] when the first time he stole from the Home Depot was.” Contrary to the defendant's suggestion, this testimony also did not enter in evidence. Rather, the judge struck it from the record and followed up with a contemporaneous curative instruction that met with the defendant's approval. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (where defense counsel “acquiesced in the curative instruction [given after objection made to closing argument] and specifically indicated he was satisfied ... the judge could not know that the defendant considered the curative instruction inadequate, and had no opportunity to clarify further if necessary”). In his final charge to the jury, the judge reiterated that “[a]ny answer [he] struck from the record is not evidence.” Because we presume the jury followed the judge's instructions, we again perceive no error. See Commonwealth v. Roby, 462 Mass. 398, 413 (2012).
Lastly, evidence was presented that the defendant was “very lazy and careless scanning items and allowed several large items to go unscanned” at the beginning of his shift. The witness testified that he asked the defendant whether he “had gotten lazy before.” There was no objection to this testimony. The judge instructed the prosecutor to “move on to the next question” and the witness did not reveal whether the defendant answered his question negatively or affirmatively. The fact that the defendant was asked the question does not, without more, constitute affirmative evidence that the defendant had engaged in prior misconduct. See Anestal, supra, quoting from Helfant, supra.
Therefore, we conclude that whether viewed individually or collectively, the claimed errors do not require reversal of the defendant's conviction.
Judgment affirmed.