Commonwealth v. Ritchie

97 Mass.App.Ct. 1102

140 N.E.3d 952 (Table)

COMMONWEALTH

v.Leland RITCHIE.

19-P-320

Appeals Court of Massachusetts.

Entered: February 7, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol.² On appeal, he claims his prearrest silence and portions of his booking video recording were improperly admitted in evidence. We affirm.

1. Prearrest silence. In the Commonwealth's opening statement, the prosecutor described several events that preceded the defendant's arrest. Among those events, the prosecutor stated that when the responding police officer asked whether the defendant had consumed any alcohol that evening, the defendant "just stared back. The[ ] [officer] asked him a number of times and all he did was stare at [him]." There was no objection to these comments. At trial, without objection, the responding officer testified to similar effect that the defendant just stared at him when twice asked if he had consumed any alcohol. The defendant did not testify, and the prosecutor made no mention of the defendant's nonresponsive stares in his closing argument. The defendant claims the officer's testimony was an improper comment on his prearrest silence, which created a substantial risk of a miscarriage of justice. We disagree.

Based on our common-law rules of evidence, the Supreme Judicial Court has noted that "impeachment of a defendant with the fact of his prearrest silence should be approached with caution." Commonwealth v. Thompson, 431 Mass. 108, 117, cert. denied, 531 U.S. 864 (2000), quoting Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982). The court has further noted that such evidence is of "extremely limited probative worth." Nickerson, supra at 61 n.6, quoting People v. Conyers, 52 N.Y.2d 454, 458 (1981).

Here, the responding officer was properly conducting an investigation of a probably intoxicated driver with a standard threshold inquiry of whether the defendant had been drinking alcohol. See Commonwealth v. Cameron, 44 Mass. App. Ct. 912, 914 (1998). Although the defendant did not respond to the inquiry, the evidence was not used to impeach him, but rather to set the evidentiary stage for the defendant's eventual arrest. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting McCormick on Evidence § 249, at 734 (3d ed. 1984) ("an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct"). Indeed, the defendant did not testify. See Commonwealth v. Habarek, 402 Mass. 105, 110 (1998). Despite the absence of misuse, the defendant's silence left the possibility that it might have been interpreted by the jury as consciousness of guilt. See Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 655 (2008). At the very least, such evidence is of "extremely limited probative worth" (citation omitted). Nickerson, 386 Mass. at 61 n.6.

Even if the defendant's lack of response should have been kept from the jury, given the overwhelming evidence of his guilt,³ any improper or unfairly prejudicial inference that could have been drawn from the defendant's prearrest silence did not create a substantial risk of a miscarriage of justice.⁴ Moreover, the defendant's prearrest silence did not affect the defendant's attempt (through cross-examination) to explain his condition as a byproduct of being a diabetic suffering from neuropathy, a claim that lacked a firm evidentiary basis.

2. Booking video recording. The defendant also claims that the judge abused his discretion by denying his pretrial request to redact a portion of his booking video recording (video) in which he repeatedly states that he knew a bail bondsman. We disagree.

The defendant argued that the jury might infer he had a criminal history because he knew a bail bondsman. The Commonwealth countered, and the judge apparently agreed, that the repetitive nature of the defendant's behavior was indicative of the defendant's intoxication.

Because the defendant objected, we review the judge's decision to admit this portion of the video for prejudicial error. See Commonwealth v. Mulgrave, 472 Mass. 170, 176 (2015). As part of the review, we are cognizant of the judge's discretion to decide whether evidence is admissible by determining whether its probative value outweighs the risk of undue prejudice. See Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 822 (2019). We will leave the judge's exercise of discretion undisturbed absent "palpable error." Commonwealth v. Khan, 92 Mass. App. Ct. 487, 495 (2017).

Booking video recordings are "on balance, a reliable evidentiary resource." Commonwealth v. Mahoney, 400 Mass. 524, 527 (1987), quoting Commonwealth v. Harvey, 397 Mass. 351, 359 (1986). Here, the defendant's repeated statement that he knew a bail bondsman was probative evidence of his intoxicated state as depicted on the video. Contrary to the defendant's claim, the defendant's repeated statement that he knew a bail bondsman was not prior bad act evidence in and of itself. Although one could infer the genesis of the defendant's knowledge as vesting in his past use of the bondsman's services because he had been charged with a crime, that is but one inference. As the judge stated, "[A]s we go through life, we know people with different occupations," pointing to an equally plausible innocent explanation of the defendant's...