COMMONWEALTH v. REGO (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury found the defendant, Scott F. Rego, guilty of two counts of felony assault and battery with a dangerous weapon, G. L. c. 265, § 15A (b), as well as a civil rights violation, G. L. c. 265, § 37. On appeal, the defendant contends that the prosecutor's repeated use of improper questions, designed to elicit excluded or inadmissible evidence, violated his right to a fair trial. We affirm.

Discussion. 1. Hate crime. We summarize the facts as the jury may have found them. The defendant was accused of engaging in an unprovoked attack with a beer bottle on a man and using a derogatory term for gay men as he did so. The man went to the police station to make a report and then returned home. At trial, the prosecutor asked him, “What happened when you got home?” He replied, “I was pretty shaken up at home, too, and I wanted – because no one said, you know, that this was a hate crime or anything.”

The defendant had filed a pretrial motion in limine, which was allowed, to bar the use of the phrase “hate crime.” Defense counsel objected at trial and the judge immediately struck the answer and told the witness to listen to the question. The prosecutor asked another question and the witness again used the term “hate crime.” The objection was renewed, and the answer was struck. We review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (“an error is nonprejudicial only ‘if ․ the error did not influence the jury, or but had a very slight effect.’ ”).

The defendant claims that the prosecutor's questions constituted a deliberate attempt to elicit the prohibited phrase “hate crime” from the witness. The record does not support this contention. The questions were proper; the answers were not. See Commonwealth v. Almele, 474 Mass. 1018, 1019 (2016). The judge properly sustained the defendant's objections and struck the answers. In pretrial instructions to the jury, the judge instructed that when an objection was sustained “[y]ou are to disregard that question and you are not to speculate as to what the answer might have been. In the same way, you are to disregard any evidence that I tell you is stricken from the record.” “Jurors are presumed to follow a judge's instructions, including instructions to disregard certain testimony” (quotation and citations omitted). Commonwealth v. Caldwell, 459 Mass. 271, 278 (2011). Any error occasioned by the improper answer was cured by the judge's prompt action.

2. Inadmissible inquiries. During the course of trial, the prosecutor asked two questions that called for either hearsay or speculation. The judge sustained the defendant's objections and struck the one answer that was given. On appeal, the defendant contends that these questions were part of a strategy to try the case by innuendo.

No claim of bad faith was made at trial. Consequently, there are no findings by the trial judge and nothing other than the bare record upon which to evaluate this assertion. While we agree that a prosecutor's questions must have both a good faith and an evidentiary basis, see Commonwealth v. Santiago, 458 Mass. 405, 411-412 (2010), we cannot say that the questions were asked in bad faith. Moreover, all objections were sustained, and “[t]he judge also instructed the jury that questions asked during the trial are not evidence. The jury are presumed to follow the judge's instructions.” Commonwealth v. Johnson, 441 Mass. 1, 7 (2004).

Judgments affirmed.