PATRICK BUCHANAN & Another v. CITY OF GREENFIELD & Another.

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.

13