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-564
PATRICK BUCHANAN & another1
vs.
CITY OF GREENFIELD & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, the city of Greenfield and Greenfield
Police Chief Robert Haigh, appeal from a Superior Court
judgment, entered following a sixteen-day jury trial, finding
the defendants liable for discrimination on the basis of race
and retaliation in violation of G. L. c. 151B, in connection
with the employment of the plaintiff, Patrick Buchanan, a former
Greenfield police officer. On appeal, the defendants claim that
they are entitled to a new trial because the judge erred in
denying (1) the defendants' motions for mistrial, due to the
1 Todd Dodge, who did not participate in this appeal.
2 Robert Haigh. admission of evidence of a confederate flag displayed by a
member of the Greenfield Police Department who was neither a
party to the action, nor a decision maker with respect to the
plaintiff's employment; (2) the defendants' motion for a new
trial on the basis of the judge's allegedly hostile treatment of
defense counsel in the presence of the jury; and (3) the
defendants' motion for a new trial on the basis of the judge's
allegedly erroneous exclusion from evidence of certain
statements made in the course of a settlement discussion between
Todd Dodge and Robert Haigh during the trial. We affirm.3
Discussion. 1. The confederate flag. The defendants
claim that the judge abused his discretion in denying their
motions for a mistrial based upon the admission of evidence
regarding a confederate flag displayed by Sergeant McCarthy on
his private property. We agree with the defendants that the
flag was not relevant. Ultimately, the judge ruled that the
flag should not have been admitted and gave a curative
instruction to the jury. Nonetheless, the defendants contend
that the judge's instruction to the jury to disregard such
evidence was inadequate, and that such evidence amounted to a
"'bell' that [could not] be unrung." We disagree.
3 In view of the resolution we reach, we need not consider the issues the plaintiff raises in his cross appeal.
2 "[I]n a civil case, a mistrial is generally regarded as the
most drastic remedy and should be reserved for the most grievous
error where prejudice cannot otherwise be removed" (quotation
omitted). Fitzpatrick v. Wendy's Old Fashioned Hamburgers of
N.Y., Inc., 487 Mass. 507, 513 (2021). We review the denial of
a motion for a mistrial for an abuse of discretion.
Commonwealth v. Doughty, 491 Mass. 788, 796 (2023). "A trial
judge is in the best position to determine whether a mistrial,
an extreme measure available to a trial judge to address error,
is necessary, or whether a less drastic measure, such as a
curative instruction, is adequate." Commonwealth v. Amran, 471
Mass. 354, 360 (2015). "When a jury have been exposed to
inadmissible evidence, the judge may rely on a curative
instruction to 'correct any error and to remedy any prejudice.'"
Commonwealth v. Durand, 475 Mass. 657, 668 (2016), cert. denied,
583 U.S. 896 (2017), quoting Commonwealth v. Kilburn, 426 Mass.
31, 38 (1997), S.C., 438 Mass. 356 (2003). A prompt curative
instruction is generally sufficient to eliminate the necessity
of a new trial. See Durand, supra, quoting Commonwealth v.
Garrey, 436 Mass. 422, 435 (2002). Ultimately, however, the
question is whether a curative instruction will remedy the
prejudice that would otherwise be caused by the evidence's
erroneous admission. See Garrey, supra.
3 Here, the judge's curative instruction to disregard all
evidence related to the confederate flag allegedly displayed by
Sergeant McCarthy, provided to the jury on May 2, 2022, while
tardy,4 sufficiently remedied any prejudice that otherwise would
have been caused by its admission. Prior to the curative
instruction, the judge ruled on April 13, 2022, that the
evidence of the flag was admissible solely for the purpose of
establishing racial animus harbored by Sergeant McCarthy, and
not for others at the Greenfield Police Department, nor as
comparator evidence. The defendants acknowledge that Sergeant
McCarthy was not a decision maker with respect to the
plaintiff's employment, and was not involved in initiating the
2015 internal investigation of the plaintiff, aside from his
initial reporting of the matter to his superior. Therefore,
even in the absence of a curative instruction, the implication
that Sergeant McCarthy harbored racial animus, based upon his
display of the confederate flag, need not be viewed as
significantly prejudicial vis-à-vis the motivation for the
actions taken by the defendants.
Notwithstanding the above, the judge instructed the jury
not to consider in any manner the testimony regarding Sergeant
4 Testimony regarding the flag was first admitted on the second day of the trial, April 12, 2022.
4 McCarthy's display of the confederate flag. The jury is
presumed to follow the judge's curative instructions. See
Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 490 (2004). "The
admission of incompetent evidence is no ground for a new trial
if before the case is given to the jury they are instructed to
disregard it, and if there is no reason to apprehend that it
finally did prejudice their minds" (quotation omitted).
Stricker v. Scott, 283 Mass. 12, 14 (1933). The defendants have
not raised any basis to support the conclusion that the jury
failed to follow the judge's curative instruction. Rather, in
their brief the defendants assert in conclusory fashion that
"[t]he instruction was too little and too late to cure the
prejudice." To the contrary, the jury answered "no" to question
3 of the special jury verdict. This question addressed the role
of racial animus in Haigh's initiation of the internal
investigation into the plaintiff's 2015 traffic stop, i.e., the
primary event at issue that tangentially involved Sergeant
McCarthy. The only one out of seven assertedly adverse
employment actions that the jury found was not "motivated by
racial animus" was Haigh's initiation of the 2015 investigation.
This supports the conclusion that the jury did follow the
judge's curative instruction. The judge did not abuse his
discretion in denying the defendants' motions for a mistrial.
5 2. The judge's conduct. Next, the defendants claim that
the judge erred in denying their motion for a new trial because
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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-564
PATRICK BUCHANAN & another1
vs.
CITY OF GREENFIELD & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, the city of Greenfield and Greenfield
Police Chief Robert Haigh, appeal from a Superior Court
judgment, entered following a sixteen-day jury trial, finding
the defendants liable for discrimination on the basis of race
and retaliation in violation of G. L. c. 151B, in connection
with the employment of the plaintiff, Patrick Buchanan, a former
Greenfield police officer. On appeal, the defendants claim that
they are entitled to a new trial because the judge erred in
denying (1) the defendants' motions for mistrial, due to the
1 Todd Dodge, who did not participate in this appeal.
2 Robert Haigh. admission of evidence of a confederate flag displayed by a
member of the Greenfield Police Department who was neither a
party to the action, nor a decision maker with respect to the
plaintiff's employment; (2) the defendants' motion for a new
trial on the basis of the judge's allegedly hostile treatment of
defense counsel in the presence of the jury; and (3) the
defendants' motion for a new trial on the basis of the judge's
allegedly erroneous exclusion from evidence of certain
statements made in the course of a settlement discussion between
Todd Dodge and Robert Haigh during the trial. We affirm.3
Discussion. 1. The confederate flag. The defendants
claim that the judge abused his discretion in denying their
motions for a mistrial based upon the admission of evidence
regarding a confederate flag displayed by Sergeant McCarthy on
his private property. We agree with the defendants that the
flag was not relevant. Ultimately, the judge ruled that the
flag should not have been admitted and gave a curative
instruction to the jury. Nonetheless, the defendants contend
that the judge's instruction to the jury to disregard such
evidence was inadequate, and that such evidence amounted to a
"'bell' that [could not] be unrung." We disagree.
3 In view of the resolution we reach, we need not consider the issues the plaintiff raises in his cross appeal.
2 "[I]n a civil case, a mistrial is generally regarded as the
most drastic remedy and should be reserved for the most grievous
error where prejudice cannot otherwise be removed" (quotation
omitted). Fitzpatrick v. Wendy's Old Fashioned Hamburgers of
N.Y., Inc., 487 Mass. 507, 513 (2021). We review the denial of
a motion for a mistrial for an abuse of discretion.
Commonwealth v. Doughty, 491 Mass. 788, 796 (2023). "A trial
judge is in the best position to determine whether a mistrial,
an extreme measure available to a trial judge to address error,
is necessary, or whether a less drastic measure, such as a
curative instruction, is adequate." Commonwealth v. Amran, 471
Mass. 354, 360 (2015). "When a jury have been exposed to
inadmissible evidence, the judge may rely on a curative
instruction to 'correct any error and to remedy any prejudice.'"
Commonwealth v. Durand, 475 Mass. 657, 668 (2016), cert. denied,
583 U.S. 896 (2017), quoting Commonwealth v. Kilburn, 426 Mass.
31, 38 (1997), S.C., 438 Mass. 356 (2003). A prompt curative
instruction is generally sufficient to eliminate the necessity
of a new trial. See Durand, supra, quoting Commonwealth v.
Garrey, 436 Mass. 422, 435 (2002). Ultimately, however, the
question is whether a curative instruction will remedy the
prejudice that would otherwise be caused by the evidence's
erroneous admission. See Garrey, supra.
3 Here, the judge's curative instruction to disregard all
evidence related to the confederate flag allegedly displayed by
Sergeant McCarthy, provided to the jury on May 2, 2022, while
tardy,4 sufficiently remedied any prejudice that otherwise would
have been caused by its admission. Prior to the curative
instruction, the judge ruled on April 13, 2022, that the
evidence of the flag was admissible solely for the purpose of
establishing racial animus harbored by Sergeant McCarthy, and
not for others at the Greenfield Police Department, nor as
comparator evidence. The defendants acknowledge that Sergeant
McCarthy was not a decision maker with respect to the
plaintiff's employment, and was not involved in initiating the
2015 internal investigation of the plaintiff, aside from his
initial reporting of the matter to his superior. Therefore,
even in the absence of a curative instruction, the implication
that Sergeant McCarthy harbored racial animus, based upon his
display of the confederate flag, need not be viewed as
significantly prejudicial vis-à-vis the motivation for the
actions taken by the defendants.
Notwithstanding the above, the judge instructed the jury
not to consider in any manner the testimony regarding Sergeant
4 Testimony regarding the flag was first admitted on the second day of the trial, April 12, 2022.
4 McCarthy's display of the confederate flag. The jury is
presumed to follow the judge's curative instructions. See
Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 490 (2004). "The
admission of incompetent evidence is no ground for a new trial
if before the case is given to the jury they are instructed to
disregard it, and if there is no reason to apprehend that it
finally did prejudice their minds" (quotation omitted).
Stricker v. Scott, 283 Mass. 12, 14 (1933). The defendants have
not raised any basis to support the conclusion that the jury
failed to follow the judge's curative instruction. Rather, in
their brief the defendants assert in conclusory fashion that
"[t]he instruction was too little and too late to cure the
prejudice." To the contrary, the jury answered "no" to question
3 of the special jury verdict. This question addressed the role
of racial animus in Haigh's initiation of the internal
investigation into the plaintiff's 2015 traffic stop, i.e., the
primary event at issue that tangentially involved Sergeant
McCarthy. The only one out of seven assertedly adverse
employment actions that the jury found was not "motivated by
racial animus" was Haigh's initiation of the 2015 investigation.
This supports the conclusion that the jury did follow the
judge's curative instruction. The judge did not abuse his
discretion in denying the defendants' motions for a mistrial.
5 2. The judge's conduct. Next, the defendants claim that
the judge erred in denying their motion for a new trial because
"[t]he judge's hostile and contentious treatment of defense
counsel throughout the trial created an unacceptable appearance
of partiality that prejudiced the defendants."5
We review the denial of a motion for new trial "for a
significant error of law or abuse of discretion." Commonwealth
v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022). "Special
deference" is given to a motion judge who was also the trial
judge, as was the case here. Commonwealth v. Nieves, 429 Mass.
763, 771 (1999). A new trial is not warranted when "the judge's
remarks complained of by the defendant[s] were in keeping with
the judge's role of controlling the conduct of the trial and
were not improperly critical of defense counsel." Commonwealth
v. Hogan, 426 Mass. 424, 432-433 (1998). Moreover, the trial
judge has the discretion to admonish defense counsel when
appropriate to maintain decorum. Id. at 432.
Here, the judge's remarks were not improperly critical of
defense counsel. First, the defendants claim that the judge
improperly admonished defense counsel during his opening
5 At oral argument, counsel for the defendants conceded that the judge's alleged partiality did not infect any particular ruling below. Rather, the defendants contend that the jury was influenced by the judge's "demonstra[tion] of hostility towards [defense counsel]."
6 statement; however, such admonishment was appropriate to
maintain decorum after defense counsel had said to plaintiff
Todd Dodge, "don't shake your head, Todd." Second, the
defendants claim that the judge acted in a prejudicially hostile
manner towards defense counsel in front of the jury when the
judge stated, "[defense] counsel is not to correct me"; however,
this remark was consistent with the judge's role of controlling
the conduct of the trial, as it was made after defense counsel
had repeated for a second time his disagreement with the judge
regarding the absence of certain evidence in the record. Third,
the defendants claim that the judge improperly admonished
defense counsel by stating, "[o]nce again, please no side
comments." This remark was not improperly critical and was
consistent with the judge's role of controlling the conduct of
the trial. Fourth, the defendants claim that the judge acted in
a prejudicially hostile manner towards defense counsel when he
stated, "[o]nce again, these causal [sic] side comments are
inappropriate, okay. This is not the first time I've had to
admonish you. Stop it." Again, this remark was appropriate
under the circumstances to maintain decorum. Finally, the
defendants claim that the judge acted in a prejudicially hostile
manner towards defense counsel when he (1) stated, "Attorney
Kesten. You are repeatedly cutting off this witness. . . .
Pose a question; then you answer"; and (2) purportedly "stormed
7 off,"6 into chambers after calling a recess.7 The judge's
instruction to defense counsel to allow the witness to answer
his questions was consistent with the judge's role in
controlling the conduct of the trial and was not improperly
critical. See Commonwealth v. Russ, 232 Mass. 58, 78-79 (1919)
(limits of cross-examination, including whether to require
witness to give yes or no answer, ordinarily rest in sound
discretion of trial judge). As the judge made clear at sidebar,
if defense counsel wanted only a yes or no answer, counsel could
ask the witness to answer in that manner; counsel then did so,
and the witness complied.
Notwithstanding the general propriety of the judge's
conduct throughout the trial, we note that the judge instructed
the jury that they "shall [not] . . . be influenced by any
personal likes or dislikes you have come to feel toward any
party or attorney," and that they "are not to consider anything
6 The tone of this interaction is unclear from the record. While the judge later apologized to defense counsel at a sidebar after the trial resumed, the judge stated in his ruling on the defendants' motion for a new trial that such apology was made in an effort "to restore civility to the proceeding." We note that defense counsel reciprocated the apology by stating, "I lost my cool and I'm sorry."
7 The defendants also claim that the judge was improperly critical of defense counsel in referring to his conduct as "not only unethical, but . . . inappropriate." However, as acknowledged by the defendants in their brief, this comment was made during a sidebar, and not in the presence of the jury.
8 [the judge] may have done or said as reflecting any opinion as
to how you should decide this case." See Hogan, 426 Mass. at
433, citing Commonwealth v. Keniston, 423 Mass. 304, 310-311
(1996) (providing jury instruction to disregard judge's conduct
weighs against finding sufficient prejudice to warrant new
trial). Although at times the judge might have exercised
greater restraint in the face of defense counsel's somewhat
provocative conduct, the judge did not commit a significant
error of law or abuse his discretion in denying the defendants'
motion for a new trial on the basis of his purported appearance
of partiality in front of the jury.8
3. The settlement discussion. Finally, the defendants
claim that the judge erred in excluding evidence of certain
statements made during a private discussion between Todd Dodge
and Robert Haigh during the trial. We disagree.
First, the defendants contend that the discussion between
Dodge and Haigh did not amount to settlement negotiations.
"[W]hether a particular discussion is in fact a settlement offer
8 The defendants also claim that the judge erred in denying the motion for a new trial because, in denying such motion, the judge "analyzed the case as if the [p]laintiffs had pled and articulated a 'cat's paw' theory [of relevance regarding the confederate flag]." However, we need not address this argument because, as discussed, supra, the judge properly provided the jury with a curative instruction to disregard any evidence regarding the flag.
9 may require the resolution of conflicting testimony and is a
preliminary question for the trial judge." Marchand v. Murray,
27 Mass. App. Ct. 611, 615 (1989). The judge's "determination
is conclusive if there is evidence to support it." Fauci v.
Mulready, 337 Mass. 532, 540 (1958). Cf. Commonwealth v. Gray,
80 Mass. App. Ct. 98, 101 (2011) (whether statement in booking
memo was admission by party opponent "is a preliminary question
of fact for the judge" and such determination "will be upheld if
there is evidence to support it"). Here, sufficient evidence
was elicited during the voir dire hearing to support the judge's
conclusion that the conversation between Haigh and Dodge
amounted to settlement negotiations.9
Next, the defendants contend that, even if the discussion
amounted to settlement negotiations, the judge erred in
excluding from evidence the statements of fact made during the
course of such negotiation. The evidentiary privilege
applicable to statements of fact made during settlement
9 The parties' counsel had discussed a settlement on the day prior, and approved of the parties' conversation at issue. During the conversation, Dodge suggested to Haigh a particular dollar amount to resolve the litigation. Haigh testified at the voir dire hearing that Dodge had said during the discussion, "[y]ou are going to be found guilty of being a racist, and you are over. I don't want to see that happen." Haigh then proceeded to testify that he had asked Dodge, "[h]ow are we going to fix this," to which Dodge allegedly responded, "I need X amount of dollars in my pocket clear, and I'm out of here today. This is over. I'm done."
10 negotiations has been described as follows: "[e]vidence of the
following is not admissible -- on behalf of any party -- either
to prove or disprove the validity or amount of a disputed claim:
. . . (2) conduct or a statement made during [settlement]
negotiations about the claim."10 Mass. G. Evid. § 408(a) (2024).
See Morea v. Cosco, Inc., 422 Mass. 601, 603-604 (1996). "This
rule is founded in policy, that there may be no discouragement
to amicable adjustment of disputes, by a fear, that if not
completed, the party amicably disposed may be injured"
(quotation omitted). Strauss v. Skurnik, 227 Mass. 173, 175
(1917). However, this evidentiary privilege is subject to
exceptions. Evidence of a compromise negotiation may be
admitted for a purpose other than to prove or disprove the
validity or amount of the claim, such as to impeach the
credibility of a witness. See Mass. G. Evid. § 408(b). See
also Zucco v. Kane, 439 Mass. 503, 510 (2003).
The defendants claim that certain statements of fact made
by Dodge during the compromise negotiation were admissible for
the alternative purpose of impeaching his credibility as a
witness. Even if Dodge's statements were admissible for this
alternative purpose, and even if the judge abused his discretion
10The defendants incorrectly claim that "factual statements made during the course of settlement negotiations are admissible."
11 in excluding them, neither of which questions we need decide,
the error would not be grounds for a new trial because it would
not be "inconsistent with substantial justice." Mass. R. Civ.
P. 61, 365 Mass. 829 (1974). In ruling on the defendants'
motion for a new trial, the judge correctly noted that the jury
had heard a substantial amount of evidence, including evidence
of disparate treatment between the plaintiff and comparator
officers, from which to infer racial bias, aside from Dodge's
testimony. Thus, "[w]e are satisfied 'with substantial
confidence that the error[, if any,] would not have made a
material difference.'" Mason v. Coleman, 447 Mass. 177, 188
(2006), quoting DeJesus v. Yogel, 404 Mass. 44, 49 (1989).
Conclusion. For the foregoing reasons, the amended final
judgment, entered November 21, 2022, is affirmed. The order
12 entered January 25, 2023, denying the defendants' motion to
correct judgment, is affirmed.11
So ordered.
By the Court (Meade, Sacks & Hodgens, JJ.12),
Clerk
Entered: February 5, 2025.
11The plaintiff's request for appellate attorney's fees and costs, pursuant to G. L. c. 151B, § 9, is allowed. In accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiff may, within fourteen days of the issuance of the decision in this matter, submit an application for attorney's fees with the appropriate supporting materials. The defendants shall have fourteen days thereafter to file a response to that application.
12 The panelists are listed in order of seniority.