Commonwealth v. John Agopovich.

• Court: Massachusetts Appeals Court
• Decided: June 14, 2024
• Docket: 22-P-0987
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-987

COMMONWEALTH

vs.

JOHN AGOPOVICH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions of operating a

motor vehicle while under the influence of intoxicating liquor

(OUI), second offense, G. L. c. 90, § 24 (1) (a) (1),1 and

negligent operation of a motor vehicle, G. L. c. 90,

§ 24 (2) (a). He argues that the judge erred by denying his

request for a prior inconsistent statement instruction in

assessing the credibility of the Commonwealth's sole trial

witness, the arresting officer. We affirm.

Discussion. At trial, the defendant's counsel pursued a

theory that the officer had not documented contemporaneous facts

1After the jury found the defendant guilty of OUI, the defendant pleaded guilty to the subsequent offense portion of the charge. very well in his police report and did not independently

remember the events described in his testimony, because three

years had intervened between the night of the defendant's arrest

and the date of trial. Citing a perceived incongruity between

the police report's contents and the officer's testimony, the

defendant asked the trial judge to instruct the jury on

inconsistent statements. The judge denied the request because,

in the judge's view, the trial evidence did not establish any

inconsistencies between what the officer documented in his

report and what he testified to at trial.

As both parties agree, "[t]he failure to give a requested

instruction on the use of prior inconsistent statements in

assessing the credibility of a witness is error if there is

evidence that a witness made prior inconsistent statements."

Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 71 (1995), citing

Commonwealth v. Martin, 19 Mass. App. Ct. 117, 119-120 (1984).

The obligation to instruct only attaches when a statement

"either by what it says or by what it omits to say, affords some

indication that the fact was different from the testimony of the

witness whom it is sought to contradict." Ortiz, supra at 72,

quoting Commonwealth v. West, 312 Mass. 438, 440 (1942). "An

omission from the earlier statement is inconsistent with a later

statement of fact when it would have been natural to include the

fact in the initial statement." Ortiz, supra, citing Foster v.

2 Worthing, 146 Mass. 607, 608 (1888). On appeal, the defendant

contends that the officer's testimony was inconsistent with

prior statements in his police report in two respects.2

First, he contends that the officer testified about the

defendant's driving performance in a manner that was

inconsistent with how he characterized it in his police report.

Specifically, the police report stated that the defendant drove

"dangerously close" to the car ahead of him. During trial, the

officer testified that the defendant drove "dangerously close"

to the car in front of him but added: "I'd say less than a half

a car length behind it." On cross-examination, the officer

acknowledged that the estimation of the distance between the two

cars was not included in his report and that it would have been

an important fact to include. On this basis, the defendant

2 The Commonwealth points out that the defendant alleged some different inconsistencies before the trial judge than those presented here, and argues that we should therefore review any newly-raised inconsistencies for a substantial risk of a miscarriage of justice, rather than for prejudicial error. See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 n.6 (2019), quoting Commonwealth v. Flynn, 362 Mass. 455, 472 (1972) ("It is a long-standing rule of practice that the defendant 'is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to [the appellate] court on a different ground'"). The defendant counters that his objection is preserved by virtue of his more general motion in limine. In light of our determination that there was no inconsistency, and thus no error, we need not resolve this issue.

3 argues that the omission of this detail makes the police report

inconsistent with the officer's trial testimony.

Notwithstanding the officer's agreeable concession, the

estimation of distance was not a significant additional detail,

making its absence in the police report suspicious. Contrast

Ortiz, 39 Mass App. Ct. at 72 (officer's failure to include in

police report important details of drug transaction tended to

undermine credibility of trial testimony). Rather, the

estimation of "less than a half car length behind" was a more

precise description than the general characterization of

"dangerously close." The officer's descriptions of the

defendant's driving performance in the police report and in the

trial testimony were consistent with one another.

Second, the defendant argues that the officer's report and

testimony diverged in their description of the defendant's

performance on field sobriety tests. Specifically, the

defendant contends that the officer testified at trial that the

defendant's "hands were not by his waist and that he did not

walk a straight line during the nine-step walk and turn test"

but that the officer omitted these details in his report. We

note that, as to the hands by waist detail, the officer gave no

such testimony. Rather, defense counsel raised the issue during

cross-examination, asking whether a person performing the test

should keep arms within a few inches of the waist. The officer

4 agreed that arms should be kept down by the side and a failure

to do so would be a cue that he would have noted in his police

report. He acknowledged that he did not note it in his report

because the defendant "didn't display that cue," indicating that

the defendant's arms were down by his side. Likewise, the

officer made no mention of the defendant failing to walk a

straight line until cross-examination when defense counsel asked

whether the defendant walked a straight line. The officer

responded that he did not. When defense counsel attempted to

impeach him with his report, the officer pointed out that he had

written that the defendant "stepped off the line," which

necessarily implies that he did not walk a straight line. There

was no inconsistency between the officer's police report and his

testimony concerning the defendant's performance of field

sobriety tests.

In sum, the officer testified consistently with his police

report; that he used mildly different phrasing and elaborated

when questioned does not suggest that "the fact was different

from the testimony" (citation omitted). Ortiz, 39 Mass. App. at

72. Contrary to the defendant's argument, an instruction on

prior inconsistent statements was not required simply because

the police officer's testimony "did not match the police

report." The question is whether the prior statements were

inconsistent with the trial testimony. The judge properly

5 declined to give the defendant's requested instruction because

he failed to establish any inconsistency.

Judgments affirmed.

By the Court (Desmond, Shin & Singh, JJ.3),

Assistant Clerk

Entered: June 14, 2024.

3 The panelists are listed in order of seniority.