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
23-P-929
COMMONWEALTH
vs.
RENAND SALVANT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Boston Municipal Court, the
defendant was convicted of negligent operation of a motor
vehicle in violation of G. L. c. 90, § 24 (2) (a). On appeal,
the defendant challenges the sufficiency of the evidence and
claims that the trial judge committed several errors in the
admission of certain trial testimony, in denying his motion for
a mistrial, and in failing to properly analyze his Batson-Soares
challenge. We affirm.
Factual Background. We summarize the facts based upon the
trial evidence, with certain details reserved for subsequent
discussion of the legal issues. On February 6, 2021, at around
4:40 P.M., the defendant rear-ended another vehicle as he approached a red light at the intersection of Gallivan Boulevard
and Washington Street. The traffic was heavy and there were
many vehicles on the streets because it was rush hour. It is
undisputed that, while the parties had different versions of the
cause of the crash, the defendant attempted to maneuver his car
to the right travel lane to move out from behind a car that was
slowing down for the red light. In doing so, the front of the
defendant's vehicle collided with the rear-end of another
vehicle. The impact was severe enough to cause the defendant's
airbags to deploy and cause significant damage to the other
vehicle.
State police Trooper Brendon Murphy was on his way home
from a detail when he observed the crash scene. He stopped and
took over the investigation from several Boston Police
Department officers who had arrived shortly before Trooper
Murphy. Trooper Murphy observed several signs of possible
impairment: the defendant's eyes were glassy, his speech was
slurred, he repeated himself several times, and he smelled of
alcohol. Trooper Murphy asked the defendant if he had been
drinking, to which the defendant responded "no." Trooper Murphy
formed the suspicion that the defendant was impaired and
conducted roadside assessments of his sobriety. Trooper Matthew
Wabrek arrived on the scene to assist Trooper Murphy and
observed some of the assessments. At the conclusion of those
2 assessments, Trooper Wabrek placed the defendant under arrest
for operating a motor vehicle under the influence of alcohol, in
violation of G. L. c. 90, § 24 (1) (a) (1), and negligent
operation of a motor vehicle, in violation of G. L. c. 90,
§ 24 (2) (a).1 A jury acquitted the defendant of the charge of
operating a motor vehicle under the influence of alcohol and
convicted the defendant of the charge of negligent operation of
a motor vehicle. This appeal followed.
Discussion. 1. Sufficiency of the evidence. We evaluate
the sufficiency of the Commonwealth's evidence to determine
"whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The
evidence may be direct or circumstantial, and we draw all
reasonable inferences in favor of the Commonwealth."
Commonwealth v. Watson, 487 Mass. 156, 162 (2021), quoting
Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).
1 Trooper Wabrek also testified at trial that the defendant smelled of alcohol, and while in the police cruiser, the defendant threatened to punch Trooper Wabrek in the face, and upon arrival to the barracks the defendant used profanities and refused to get out of the cruiser. Once extricated from the back of the cruiser, the defendant refused to answer booking questions.
3 At the close of the evidence, the defendant moved for a
required finding of not guilty. On appeal, the defendant claims
that the judge erred in denying the motion because there was
insufficient evidence to convict him of negligent operation of
motor vehicle. The elements of negligent operation of a motor
vehicle under G. L. c. 90, § 24 (2) (a), are that the defendant
(1) operated a motor vehicle, (2) upon a public way, and (3) did
so negligently so that the lives or safety of the public might
be endangered. See Commonwealth v. Teixeira, 95 Mass. App. Ct.
367, 369 (2019); Commonwealth v. Ross, 92 Mass. App. Ct. 377,
379 (2017). The defendant does not challenge the first two
elements, instead focusing his argument on the claim that the
Commonwealth presented insufficient evidence to prove beyond a
reasonable doubt that he operated the vehicle in a negligent
manner. "Negligence in this context is determined by the same
standard that is employed in tort law." Teixeira, 95 Mass. App.
Ct. at 369, quoting Commonwealth v. Duffy, 62 Mass. App. Ct.
921, 922 n.2 (2004). "The statute requires proof that the
defendant's conduct might have endangered the safety of the
public, not that it, in fact, did." Commonwealth v. Tsonis, 96
Mass. App. Ct. 214, 220 (2019), quoting Teixeira, 95 Mass. App.
Ct. at 369. Moreover, as recently noted in Commonwealth v.
Howe, 103 Mass. App. Ct. 354 (2023), negligent operation can be
found when a person "operate[s] a vehicle in such a way that
4 would endanger the public although no other person is on the
street." Id., quoting Commonwealth v. Constantino, 443 Mass.
521, 526-527 (2005). The fact that an accident occurred does
not automatically give rise to a finding of negligence because
"[t]he mere happening of an accident . . ., where the
circumstances immediately preceding it are left to conjecture,
is not sufficient to prove negligence on the part of the
operator of the vehicle." Howe, supra at 358, quoting Aucella
v. Commonwealth, 406 Mass. 415, 418 (1990).
The Commonwealth presented ample evidence other than just
the collision from which the jury could find beyond a reasonable
doubt that the defendant operated his motor vehicle in a
negligent manner. The defendant rear-ended a motor vehicle that
was stopped at a red light. The jury heard evidence that,
during rush hour, in the city of Boston, at a busy intersection,
the defendant changed lanes to avoid a slower car approaching
the stop light. In so doing, the defendant crashed his vehicle
into another car with such force that the defendant's airbags
deployed and caused significant damage to the other vehicle.
Moreover, the jury heard evidence that the defendant smelled of
alcohol, his eyes were glassy, his speech slurred, he was unable
to successfully perform road assessment tests, and his demeanor
was hostile and belligerent. The evidence of the crash in
combination with the manner in which he drove his car, the
5 severity of the collision, and the evidence of alcohol
consumption was more than sufficient to convict the defendant of
negligent operation of a motor vehicle.
2. Peremptory challenge of juror no. 27. We next address
the defendant's claim that the Commonwealth's peremptory strike
of juror no. 27 was an unconstitutional race-based challenge and
the judge committed error in failing to make a contemporaneous
ruling. During jury selection, juror no. 27 approached sidebar
and stated that sometime between 2020 and 2022 she was involved
in a motor vehicle accident and was criminally charged. Juror
no. 27 also told the trial judge that she had appeared before
him on one occasion while her criminal case was pending and that
she was eventually placed on probation, required to pay a fine,
and ordered to attend AA meetings. Based upon this exchange,
the prosecutor challenged juror no. 27 for cause, arguing that,
because she had been recently charged with a similar crime,
juror no. 27 would be sympathetic to the defendant and not
impartial. The judge denied the for-cause challenge, indicating
that juror no. 27 responded that she could be a fair and
impartial juror. The prosecutor then exercised her last
peremptory challenge on this juror.
Defense counsel challenged the prosecutor's exercise of her
peremptory challenge by stating, in relevant part, "[y]oung
minority female trying to sit on the jury." The judge denied
6 defense counsel's challenge at that point and did not allow
further argument on the issue. At sidebar, outside of the
hearing of the potential jurors, defense counsel insisted that
the judge had to record why his challenge was denied. The judge
responded "[b]ased on the juror's answers that were given forth
with a much detailed question and answer regarding her past and
her history." Jury selection continued and three more jurors
(jurors no. 28, 29, and 31) were selected. The jurors were
sworn in, and then released for the lunch break. When the
jurors had departed the courtroom, defense counsel requested to
be heard on the record and stated:
I did make a Batson-Soares challenge on juror number 27, Your Honor. There was no actual argument as to that. I know my request was denied but we did not go through the steps on that, Your Honor, and I believe that there is a [Batson-Soares] issue here.
The judge recessed for lunch and then, prior to the jurors
entering the courtroom, addressed the defendant's Batson-Soares
challenge. The judge, believing that the defendant had
presented a prima facie case, asked the prosecutor to provide
her race-neutral reason for exercising a peremptory challenge.
The judge then heard from defense counsel and found that the
explanation by the prosecutor was both "adequate" and "genuine"
and allowed the peremptory challenge of juror no. 27.
We review a judge's decision regarding a peremptory
challenge for an abuse of discretion. Commonwealth v. Jackson,
7 486 Mass. 763, 768 (2021). "We grant deference to a judge's
ruling on whether a permissible ground for the peremptory
challenge has been shown and will not disturb it so long as it
is supported by the record." Commonwealth v. Rosa-Roman, 485
Mass. 617, 636 (2020), quoting Commonwealth v. Rodriguez, 431
Mass. 804, 811 (2000).
In a criminal trial, a defendant is entitled to a trial by
an impartial jury and neither party may exercise a peremptory
challenge on the basis of race or other protected classes. See
Commonwealth v. Sanchez, 485 Mass. 491, 493 (2020). If there is
an objection to a peremptory challenge, the trial judge must
follow a three-step, burden shifting analysis. Commonwealth v.
Jackson, 486 Mass. at 768. "[T]o rebut the presumption that the
peremptory challenge is proper, the challenging party 'must make
out a prima facie case' that it was impermissibly based on race
or other protected status 'by showing that the totality of the
relevant facts gives rise to an inference of discriminatory
purpose.'" Commonwealth v. Kozubal, 488 Mass. 575, 580 (2021),
quoting Jackson, supra. Because establishing a prima facie case
of impropriety "is not an onerous task," Commonwealth v. Jones,
477 Mass. 307, 321 (2017), we have urged judges that they should
"think long and hard before they decide to require no
explanation from the prosecutor for the challenge and make no
findings of fact." Sanchez, 485 Mass. at 514, quoting
8 Commonwealth v. Issa, 466 Mass. 1, 11 n.14 (2013). If the prima
facie case has been established, "the burden shifts to the party
exercising the challenge to provide a group-neutral explanation
for it." Sanchez, supra at 493. Finally, the judge must
determine whether the proffered explanation is both adequate and
genuine. Id. An explanation is considered adequate if it is
"clear and reasonably specific" and "personal to the juror and
not based on the juror's group affiliation." Jackson, supra at
779, quoting Commonwealth v. Maldonado, 439 Mass. 460, 464-465
(2003). "An explanation is genuine if it is in fact the reason
for the exercise of the challenge." Jackson, supra.
The case of Commonwealth v. Jackson, 486 Mass. 763 (2020)
is instructive. In Jackson, defense counsel objected to the
prosecutor's peremptory challenge by stating "I make a Soares
challenge. Person of color." Id. at 771. Ultimately, the
Supreme Judicial Court found that the judge did not abuse his
discretion in determining that the defendant failed to carry the
"step-one" burden of production under Batson-Soares. The Court
took note that, where "defense counsel [is] unfocused in his
objection, . . . [s]uch diffuse objections, presented without
specific factual bases for each protected category, make the
already difficult Batson-Soares analysis many times more
complicated to sort out." Id. at 772. The Court explained that
the Batson-Soares test "does not apply to challenges to members
9 of all minority ethnic or racial groups lumped together, but
instead applies to challenges to 'particular, defined groupings
in the community.'" Id., quoting Commonwealth v. Lopes 478
Mass. 593, 600 n.5 (2018).
We agree with the defendant that, in most circumstances,
the Batson-Soares analysis should and is made contemporaneously
with the challenge. And we further note that trial judges are
"strongly encouraged to ask for an explanation as questions are
raised regarding the appropriateness of the challenges." Lopes,
478 Mass. at 598. Here, however, like the unfocused challenge
in Jackson, defense counsel made matters more difficult by
making the statement "young minority female" and expecting that
statement to automatically translate into a Batson-Soares
challenge. A short time later, perhaps realizing that he lacked
specificity in challenging juror no. 27, defense counsel for the
first time articulated the nature of his challenge by
specifically noting that his challenge was indeed under Batson-
Soares. Once properly raised, and before the jurors returned to
the courtroom and the trial started, the judge properly analyzed
the defendant's challenge. The judge turned to the prosecutor
and asked the prosecutor to provide a race neutral reason for
the challenge. The prosecutor's stated reason for exercising a
peremptory challenge was her concern that the defendant was
charged with operating a motor vehicle under the influence of
10 alcohol and the facts involved a motor vehicle accident --
similar to what juror no. 27 had been charged with, had appeared
before the same trial judge for, and had recently been placed on
probation for. The judge concluded that the prosecutor's reason
for exercising the peremptory challenge was both adequate and
genuine. This conclusion was not an abuse of discretion. See
Lopes, 478 Mass. at 601 (presumption of propriety of peremptory
challenges had not been overcome where a juror's "two
significant experiences with the law provided a sufficient and
obvious basis for the prosecutor's peremptory challenge").
Likewise, we see no abuse of discretion in the judge's
determination that the prosecutor's reasoning was both adequate
and genuine.
3. Evidentiary rulings. The defendant contends that the
judge erred in denying his motion to exclude Trooper Murphy as a
witness and then in denying a voir dire examination of Trooper
Murphy prior to trial. He contends that this error was further
compounded by the judge's failure to grant a mistrial once
Trooper Murphy testified to undisclosed statements by the
defendant and the judge's failure to provide a Bowden
instruction. The defendant also contends that the judge erred
in allowing the civilian witness, whose vehicle was rear-ended
by the defendant, to testify that the damage to his car was a
"total loss" and that, due to the impact of the crash, his
11 child's car seat was broken and split in half. We will address
each of these witnesses in turn.
a. Testimony of Trooper Murphy. The Commonwealth notified
the defendant during the discovery process that it had three
potential trial witnesses: the civilian witness involved in the
motor vehicle crash, Trooper Murphy, and Trooper Wabrek. At the
beginning of the trial, defense counsel sought to exclude
Trooper Murphy from testifying because he had not authored a
police report. The defendant argued that since he did not write
a report, Trooper Murphy's trial testimony would result in
unfair surprise and prejudice to his client. He also requested,
if the judge were to deny his motion to exclude Trooper Murphy
as a witness, a voir dire examination be allowed before the
trial began. In response, the judge asked the prosecutor for an
offer of proof. The prosecutor acknowledged that Trooper Wabrek
was the only police officer who wrote a report, even though
Trooper Murphy was the first to arrive on the scene. The
prosecutor stated that he did not expect "any surprises" and
that in addition to what was contained in the police report, he
anticipated that Trooper Murphy would testify about his
observations of the scene including his observations of the
vehicles involved in the crash, his observations of the
defendant's appearance and demeanor, and the reasons why he
asked the defendant to perform roadside assessments. The judge
12 then allowed the Commonwealth to call Trooper Murphy as a
witness and denied the defendant's request for a voir dire.
At trial, the prosecutor asked Trooper Murphy to describe
his initial observations of the defendant. In addition to
testifying about his observations of the defendant's physical
appearance and condition, Trooper Murphy stated that the
defendant admitted that, prior to the accident, he had consumed
alcohol at a family party or family cookout.2 Trooper Murphy
also testified that the defendant declined medical treatment
when offered by him as well as officers of the Boston Police
Department. Defense counsel objected as neither the defendant's
statement about alcohol consumption or denying medical treatment
was provided in discovery requests, and the defendant moved to
strike the testimony.3
The judge, after extensive inquiry with the parties and
thoughtful consideration, instructed the prosecutor not to
inquire any further with Trooper Murphy about the defendant's
statement that he had been consuming alcohol. He then allowed
Trooper Murphy's testimony to stand except as to the statement
2 This statement directly conflicted with the defendant's statement memorialized in Trooper Wabrek's police report denying any consumption of alcohol.
3 Later the defendant renewed his objection and requested a mistrial or, in the alternative, the exclusion of Trooper Murphy's entire testimony.
13 that the defendant admitted to drinking alcohol, which he struck
and instructed the jury to disregard. The judge allowed and
even encouraged defense counsel "wide leeway" to cross-examine
Trooper Murphy about his failure to properly document important
facts.
On the second day of trial, the defendant renewed his
objection and requested a mistrial or, in the alternative, the
exclusion of Trooper Murphy's entire testimony. The judge
denied the motion to strike Trooper Murphy's entire testimony
and reserved ruling on the mistrial until after the jury reached
a verdict. After conducting a hearing, the judge denied the
motion for a mistrial.
When a party violates its discovery obligations, the trial
judge may issue a sanction. Mass. R. Crim. P. 14 (c), as
appearing in 442 Mass. 1518 (2004). The Commonwealth readily
admits that the "late disclosure" of the defendant's statement
about alcohol consumption was a violation of Rule 14. Sanctions
for discovery violations, which are meant to protect a
defendant's right to fair trial, are within the judge's sound
discretion. See Commonwealth v. Edwards, 491 Mass. 1, 8 (2022),
citing Commonwealth v. Frith, 458 Mass. 434, 439 (2010). In
sanctioning a discovery violation, "the court may make a further
order for discovery, grant a continuance, or enter such other
order as it deems just under the circumstances." Mass. R.
14 Crim. P. 14 (c) (1). The court also may exclude evidence for
noncompliance with a discovery order.
We review a decision denying a motion for a mistrial also
under the abuse of discretion standard. Commonwealth v. Lao,
460 Mass. 12, 19 (2011). "The burden of demonstrating an abuse
of discretion is a heavy one." Commonwealth v. Medeiros, 395
Mass. 336, 351 (1985). The trial judge was in the best position
to assess any potential prejudice and to tailor an appropriate
remedy short of declaring a mistrial, where possible. Although
the defendant argues that the prosecutor intentionally elicited
the undisclosed statement, the record makes clear that the
prosecutor did not foresee or anticipate Trooper Murphy's
testimony about the defendant's admission to alcohol
consumption. Moreover, while a curative instruction was not
immediately given, the defendant did not request one. Here, the
trial judge took several steps he deemed adequate to protect the
defendant's right to a fair trial. He allowed considerable
cross-examination of Trooper Murphy, he prohibited the
Commonwealth from eliciting more testimony about the defendant's
admission to alcohol consumption, he struck the previously
elicited testimony to that effect, and he instructed the jury to
disregard it. Further, the defendant's claim that the judge
struck the wrong statement is unfounded. The judge spent
considerable time with defense counsel to ensure that defense
15 counsel understood the consequences of striking the entire
statement by Trooper Murphy. The judge explained that if he
struck all of Trooper Murphy's last answer (as requested by
defense counsel), then defense counsel would not be allowed to
cross-examine him on his failure to properly document the
defendant's statements in a written report. The judge then
instructed the jury to specifically disregard "that last answer.
Disregard that last answer about what [the] defendant said."
There was no error. The jury are presumed to follow
instructions to disregard a particular matter. See Commonwealth
v. Isabelle, 444 Mass. 416, 420 (2005). In fact, given that the
jury acquitted the defendant of the more serious charge of
operating a motor vehicle under the influence of alcohol, the
defendant would be hard pressed to argue otherwise. The
defendant has not shown that the judge abused his discretion.4
Next, the defendant argues that the judge erred in denying
him an opportunity to conduct a voir dire examination of Trooper
Murphy outside of the hearing of the jury. "The decision to
4 As to the statement by Trooper Murphy that the defendant declined medical treatment, we note that the defendant testified at trial that he never spoke to Boston Police officers and that Trooper Murphy never offered him medical treatment for his injuries. We fail to see what, if any, prejudice the defendant suffered from Trooper Murphy's statement about medical attention. Further, the reference by Trooper Murphy about the Boston Police officers offering medical attention was, at best, cumulative.
16 conduct a voir dire examination of a witness rests in the sound
discretion of the trial judge." Commonwealth v. Troche, 493
Mass. 34, 46 (2023), quoting Commonwealth v. Pina, 481 Mass.
413, 431 (2019). The judge's decision "will not be disturbed
unless it constitutes 'a clear error of judgment in weighing the
factors relevant to the decision . . . such that the decision
falls outside the range of reasonable alternatives.'" Pina,
supra, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). We see no abuse of discretion in declining to conduct a
voir dire, as the defendant was on notice that Trooper Murphy
would be called to testify, the Commonwealth made an offer of
proof, and there is no evidence that the prosecutor was aware of
the statement of the defendant's admission of alcohol
consumption before Trooper Murphy testified at trial.
Finally, the defendant argues that because Trooper Murphy
failed to write a report or document pertinent information in
Trooper Wabrek's police report, the judge erred by failing to
give the so-called Bowden instruction.5 There is no error
"because the giving of such an instruction is never required."
See Commonwealth v. Williams, 439 Mass. 678, 687 (2003) ("judge
5 Commonwealth v. Bowden, 379 Mass. 472, 485 (1980). Here, in essence, the defendant requested that the jury be instructed that they could consider, if they found that police investigation inadequate, whether that amounted to reasonable doubt of the defendant's guilt.
17 is not required to instruct on the claimed inadequacy of a
police investigation). "Bowden simply holds that a judge may
not remove the issue from the jury's consideration." Id.,
quoting Commonwealth v. Boateng, 438 Mass. 498, 506–507 (2003).
In this case, by providing defense counsel with wide leeway to
cross-examine Trooper Murphy, the judge did not remove the
inadequacy of the police investigation from consideration by the
jury. We also note that the judge allowed the defendant to
mention the failure of the Trooper Murphy to provide these
statements to the jury in his closing statement.
b. Testimony of civilian witness. The Commonwealth's
first witness at trial was the operator of the vehicle who the
defendant rear-ended. This witness testified that he was
stopped at the red light at the intersection of Gallivan
Boulevard when the defendant hit his car. Specifically, he
testified that the car was "a total loss" and cost $12,000.00 to
repair. The witness also testified that his child's car seat
was broken. The defendant objected, noting that he never
received any photographs of the broken car seat or documents
indicating that the car was a total loss. The objection was
overruled, and the witness testified that the car seat was
broken in the middle and not usable.
The defendant's claim that the Commonwealth violated
Mass. R. Crim. P. 14 by failing to provide him with statements
18 from a civilian witness about the extent of the damage to his
car and to a child's car seat is without merit. There was no
error in the admission of this testimony. The defendant was
aware that the Commonwealth intended to call the civilian
witness, and the defendant has not established that the witness
made any statements that were withheld in violation of Mass. R.
Crim. P. 14.
Judgment affirmed.
By the Court (Desmond, Walsh & Toone, JJ.6),
Clerk
Entered: January 6, 2025.
6 The panelists are listed in order of seniority.