Commonwealth v. Roger Stacy.

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-904

COMMONWEALTH

vs.

ROGER STACY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the District Court, a jury found the

defendant guilty of operating a motor vehicle while under the

influence of alcohol. G. L. c. 90, § 24 (1) (a) (1).

Thereafter, in a jury-waived trial, a judge found that this was

the defendant's fourth such offense. The defendant moved for a

new trial, which, after a nonevidentiary hearing, the same judge

denied. The defendant now appeals from both the judgment of

conviction and the order denying his new trial motion. We

affirm.

Discussion. The defendant raises essentially two arguments

on appeal. First, the defendant asserts that the judge abused

his discretion in precluding the defendant's girlfriend from
testifying, which the defendant challenged both at trial and in

his new trial motion. 1 Second, the defendant contends that the

prosecutor's closing argument referred to facts not in evidence

and misstated the evidence, thereby creating a substantial risk

of miscarriage of justice.

1. Girlfriend's testimony. a. Exclusion at trial. In

their discretion, judges may "allow the exclusion of witnesses

not listed on a pretrial conference report." Commonwealth v.

Durning, 406 Mass. 485, 495 (1990). But, before prohibiting a

witness from testifying, the judge must "make explicit his

findings" regarding the five factors outlined in Durning.

Commonwealth v. Reynolds, 429 Mass. 388, 400 (1999). Those

factors are: "(1) prevention of surprise; (2) evidence of bad

faith . . . ; (3) prejudice to the other party caused by the

testimony; (4) the effectiveness of less severe sanctions; and

(5) the materiality of the testimony to the outcome of the

case." 2 Durning, supra at 496.

Here, on the morning of the first day of trial, the judge

barred the girlfriend from testifying "based on [defense

1 By the time of trial, the defendant and his girlfriend had
married. For clarity, we refer to her as his girlfriend
throughout.

2 These factors are sometimes referred to as Chappee
factors, after the first Massachusetts case to adopt them. See
Commonwealth v. Chappee, 397 Mass. 508, 518 (1986).

2
counsel's] failure to comply with [the witness disclosure

requirements of] Rule 14," but the judge did not make explicit

findings regarding the Durning factors. Mass. R. Crim. P.

14 (a) (1) (B), as amended, 444 Mass. 1501 (2005). While we

agree with the defendant that the judge erred by not making such

findings, we nevertheless conclude that the defendant was not

prejudiced.

"An error is not prejudicial if it 'did not influence the

jury, or had but very slight effect'; however, if we cannot find

'with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error,' then it is

prejudicial." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005),

quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

The defendant argues that the exclusion of his girlfriend's

testimony was prejudicial because her testimony would have cast

doubt on the trooper's testimony that the defendant smelled of

alcohol.

Defense counsel's proffer on the morning of trial, however,

was that the girlfriend "was not a fact witness" but would

merely "corroborate a couple of details." According to counsel,

she would testify that "the defendant worked [on the day of the

arrest] for ten hours at a job in Salem; he's a cement finisher.

He was at the Amazon plant; every day when he comes home, he

3
stinks of chemicals" and that she "makes him take his clothes

off in the hallway and get in the shower before he comes in the

house."

This proffered testimony was cumulative, because the

defendant himself testified to the same details, which were in

any event not exculpatory. See Durning, 406 Mass. at 498 ("The

defendant's right to call his own witnesses does not extend so

far as to require a judge to allow the presentation of

cumulative or collateral evidence in contravention of a pretrial

conference report"). Counsel never suggested that the

girlfriend would testify the fumes on the defendant had an odor

similar to alcohol, so as to support an argument that the

trooper was mistaken as to what he smelled. Counsel did not

suggest she was a percipient witness or that she had any

personal knowledge of the defendant's condition or actions

immediately before or during his interaction with the trooper.

The defendant also argues on appeal that his girlfriend's

testimony, even on the proffered details, would have bolstered

his credibility, making her exclusion prejudicial. What this

overlooks is that his ongoing relationship with his girlfriend

would have made her appear biased in his favor, substantially

decreasing any benefit from her testimony. See Commonwealth v.

Rarick, 87 Mass. App. Ct. 349, 354 n.7 (2015) (jury entitled to

disregard or assign little weight to romantic partner's

4
testimony); Commonwealth v. Omonira, 59 Mass. App. Ct. 200, 207

(2003) (jury entitled to discount testimony of defendant's

spouse and child).

This case is not like Commonwealth v. Dranka, 46 Mass. App.

Ct. 38 (1998), on which the defendant relies. In Dranka, a case

concerning an alleged rape, the court held it error to bar a

physician from testifying that he had performed a vasectomy on

the defendant and had then tested the defendant and found him

incapable of producing sperm. Id. at 40. The physician would

have corroborated the defendant's testimony on those important

points. Id. at 43.

Here, in contrast, the girlfriend had an obvious bias and

could have corroborated the defendant's testimony only on minor

issues that had no discernible bearing on whether he was

intoxicated at the time of his interaction with the trooper.

Counsel did not suggest the girlfriend could testify to whether

the defendant smelled of alcohol, whether his speech was

slurred, whether his eyes were glassy and bloodshot, or whether

he failed field sobriety tests -- all of which factors the

trooper testified to as evidence that the defendant was

intoxicated. Thus, in this case, although the judge erred in

not making express Durning findings, we are confident that "the

judgment was not substantially swayed by the error" (citation

5
omitted), Cruz, 445 Mass. at 591, i.e., that the defendant was

not prejudiced by the exclusion of his girlfriend's testimony.

b. Motion for new trial. In his motion for a new trial,

the defendant pressed the issue of the exclusion of his

girlfriend's testimony. The defendant submitted an affidavit of

counsel stating that the girlfriend could have offered certain

additional details beyond those proffered at trial. The

affidavit also offered additional evidence on certain of the

Durning factors.

At the trial level, a motion for new trial should be

granted if "it appears that justice may not have been done."

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).

On appeal of the denial of a motion for new trial, we review for

"a significant error of law or other abuse of discretion," and

we "extend[] special deference to the action of a motion judge

who was also the trial judge," as was the case here.

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

The defendant argues that the judge abused his discretion

in denying the motion, because counsel's affidavit showed even

more strongly that the Durning factors weighed in favor of

admitting the girlfriend's testimony. While several Durning

factors may well weigh in the defendant's favor, the affidavit

did not show that the additional details to which the girlfriend

6
could have testified would have been any more material than what

counsel proffered at trial.

According to the affidavit, the girlfriend would

corroborate that the defendant had "called her after his motor

vehicle ran out of gas and told her that he needed to look for a

mile marker or sign to direct her to the location where she

could have picked him up." She would also corroborate that it

"was the day before Thanksgiving and that she and the defendant

had plans of spending the holiday together," and that "the

defendant was a construction laborer and his clothing and body

often had a strong industrial/chemically smell after he finished

his workday." The affidavit does not suggest the girlfriend

would have testified either that the smell on the defendant

could have been confused with alcohol or that the defendant did

not seem intoxicated based on his speech or behavior during his

telephone call to her. Indeed, the affidavit does not suggest

that the girlfriend's testimony could have added anything

material to what was already in evidence at trial. 3

Because the exclusion of the girlfriend's testimony did not

prejudice the defendant, i.e., did not create a risk that

"justice may not have been done," Mass. R. Crim. P. 30 (b), the

3 Because of our conclusion, we need not address the
Commonwealth's additional argument that some of the proffered
testimony would have been inadmissible hearsay.

7
judge acted within his discretion by denying the motion for a

new trial.

The defendant further contends that the judge abused his

discretion by not holding an evidentiary hearing before ruling

on the motion. "The decision to hold an evidentiary hearing on

a motion for a new trial is left largely to the sound discretion

of the judge. Only when the motion and affidavits raise a

'substantial issue' is an evidentiary hearing required"

(quotation and citation omitted). Commonwealth v. Vaughn, 471

Mass. 398, 404 (2015). "In determining whether a 'substantial

issue' meriting an evidentiary hearing . . . has been raised, we

look not only at the seriousness of the issue asserted, but also

to the adequacy of the defendant's showing on the issue raised."

Id., quoting Commonwealth v. Stewart, 383 Mass. 253, 257-258

(1981).

Here, the defendant's motion for a new trial and affidavit

did not identify any disputed factual issue that required an

evidentiary hearing to resolve. Even if the judge took as

entirely true the affidavit's proffer of how the girlfriend

could have testified, it was still within the judge's discretion

to deny the motion. See Vaughn, 471 Mass. at 404. An

evidentiary hearing would have served no real purpose, and so

the judge did not abuse his discretion by ruling on the motion

without conducting such a hearing.

8
2. Closing argument. The defendant argues that the

Commonwealth's closing argument was improper. Because the

defendant did not object at the time, we review to consider

whether any error created a substantial risk of miscarriage of

justice. See Commonwealth v. Randolph, 438 Mass. 290, 297-298

(2002). That question turns on whether we have "a serious doubt

whether the result of the trial might have been different had

the error not been made." Commonwealth v. LeFave, 430 Mass.

169, 174 (1999).

The defendant contends that the prosecutor referred to

facts not in evidence, by arguing that "[s]omeone who's been

drinking does not smell like diesel, they smell like an

alcoholic beverage." The defendant ignores that in his own

closing argument, defense counsel called on the jury to "use

[their] common sense[:] the smell of alcohol, the smell of

fumes; [the trooper] smelled something [and] based upon that,

and based upon field sobriety tests . . . formed the opinion

that [the defendant] was operating under the influence of

alcohol." Once the defendant suggested, without evidentiary

support, that diesel fumes and alcohol may smell alike, the

Commonwealth was entitled to reply. See Commonwealth v. Smith,

404 Mass. 1, 7 (1989) (prosecutor entitled to make fair reply to

defendant's closing argument).

9
Although the defendant's brief also suggests that the

prosecutor "misstated the evidence," the brief immediately

shifts gears to argue only that the prosecutor "misstated what

[the defendant's] factual argument actually was" (emphasis

added). We see no support for the suggestion that the

prosecutor misstated the defendant's testimony or any other

aspect of the evidence itself. And, as just discussed, the

prosecutor's argument was a fair reply to the defendant's own

closing argument, which implied that the trooper had mistaken

the smell of diesel fumes for the smell of alcohol.

10
Accordingly, the defendant has shown no error in the

Commonwealth's closing argument, much less one that created a

substantial risk of miscarriage of justice.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Henry, Sacks &
Singh, JJ. 4),

Clerk

Entered: January 29, 2025.

4 The panelists are listed in order of seniority.

11