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Appeals Court of Massachusetts.



Decided: November 30, 2021

By the Court (Blake, Massing & Ditkoff, JJ.1)


The defendant, Courtney D. Gardner, was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI) after a jury trial in the District Court. On appeal, the defendant argues that the judge's decision not to mark a video recording (video) as an exhibit and his failure to dismiss a juror for cause both amounted to reversible error. We affirm.

1. The video. The defense prepared a three-minute video of the route the defendant had been driving when Reading Police Sergeant Patrick Silva pulled her over on suspicion of OUI. The jury viewed the video in its entirety during defense counsel's cross-examination of Silva. Silva stated that the video fairly and accurately depicted the path the defendant's car followed, except for the fact that the video was made during daylight hours and the arrest occurred at night. Because of the difference in lighting conditions, the judge did not permit the video to be marked as an exhibit. See Commonwealth v. Weichell, 390 Mass. 62, 77-78 (1983). It was marked for identification instead.

The defendant contends that the exclusion of the video was error that infringed on her constitutional and statutory rights to present a defense. See Commonwealth v. Vardinski, 438 Mass. 444, 449 n.11 (2003) (“the right to present a defense ․ encompasses the ability to produce documentary evidence”). “However, a defendant is not necessarily deprived of the right to present [her] theory of defense simply because the judge excludes a piece of evidence supporting such theory.” Commonwealth v. Jones, 464 Mass. 16, 19 n.5 (2012). The judge's decision not to admit the video did not interfere with the defendant's ability to present her defense in this case. To the contrary, defense counsel was able to make all the points he sought to establish through the video notwithstanding the evidentiary ruling.

Using the video, defense counsel elicited two key concessions from Silva. First, Silva agreed that traffic signals were present at intersections along the route. He acknowledged that his observations of the defendant quickly slowing down and accelerating, which was one of the reasons he pulled her over, might have been explained by the fact that she was approaching intersections. Second, Silva admitted that in the section of the road where he observed the defendant's car straddling both lanes of traffic, no white lane lines were visible.

In addition, even though the judge had excluded the video from evidence, both defense counsel and the prosecutor referred to it in closing arguments. Defense counsel noted that the jurors had watched the video while Silva was testifying, and that Silva “testified that the markings on that lane were pretty rubbed off.” The prosecutor referred to the video to argue that the route was a public way, and later conceded “there's no dispute that there's portions of the roadway, as you're able to see [on the video] and as Sergeant Silva was even describing, that that roadway was not in tip top shape, that there were portions of those lane markings that had disappeared.”

Even if the jury understood the judge's instruction, “Don't consider any item that was marked for identification but was never received into evidence as an exhibit,” to mean that they had to put aside their memory of the video, the presence of traffic signals and the poor lane markings were in evidence through Silva's testimony. Thus, “exclusion of the proffered [video] did not prevent the defendant from presenting [her] theory of defense, i.e., that [s]he did not operate [her] vehicle while under the influence of alcohol.” Jones, 464 Mass. at 19 n.5. Likewise, even if the judge erred or abused his discretion in declining to admit the video, its exclusion did not prejudice the defendant. See Commonwealth v. Corliss, 470 Mass. 443, 456-457 (2015); Commonwealth v. McGrath, 358 Mass. 814, 815 (1971).

2. For-cause challenge of juror. The defendant argues that she is entitled to a new trial because the judge erroneously declined to dismiss juror number twelve for cause. Specifically, she argues that the juror's responses to the judge's questions during voir dire raised concerns about the juror's ability to understand English. The defendant also asserts that the judge denied her for-cause challenge with “not so much as a single question to the juror to ensure that the juror possessed sufficient command of the English language to attend to the evidence.”

The record plainly belies the defendant's contentions. Noting that the juror was “from outside of the United States,” but spoke “pretty strong English,” the judge directly asked the juror whether she felt “comfortable having a proceeding, an important proceeding in English?” The juror responded, “Yes. I feel comfortable. I've been here for 20 years, and I work for a company I travel a lot. I communicated with a lot of people.”

A trial judge's broad discretion in the jury selection process “extends to a judge's determination whether a juror is competent to serve.” Commonwealth v. Heywood, 484 Mass. 43, 45 (2020). The judge had the opportunity to observe the juror's demeanor and assess her credibility -- as well as her English language proficiency. See Commonwealth v. Ferguson, 425 Mass. 349, 352-353 (1997). Accordingly, we defer to the judge's determination that the juror's answers to certain questions, which defense counsel characterized as “nonresponsive,” were “due to [the judge's] phrasing of the questions.” The judge did not abuse his discretion in determining that the juror was competent to serve. See Heywood, supra.2

Judgment affirmed.


2.   Given this conclusion, we need not determine whether the defendant “has adequately shown that [s]he would have exercised a proper peremptory challenge, had another been available, to exclude” the juror. Commonwealth v. Auguste, 414 Mass. 51, 58 (1992).

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