Commonwealth v. Renand Salvant.

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

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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.

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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.

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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.

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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

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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.

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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.

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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.

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