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-698

COMMONWEALTH

vs.

RENE ALYSON BARRETT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant was

convicted of negligent operation of a motor vehicle in violation 

of G. L. c. 90, § 24 (2) (a), and acquitted of operating under 

the influence of liquor in violation of G. L. c. 90, § 24 (1) 

(a) (1).1 On appeal, she argues that she was prejudiced by an 

error in the prosecutor's opening statement. We affirm.

Background. We summarize the facts the jury could have 

found. While monitoring traffic on Route 20 at 1:40 A.M., a 

police officer in Auburn saw a Hyundai Santa Fe driving at what 

he estimated to be seventy miles per hour in a forty mile per 

hour zone. After he caught up to the vehicle, the officer 

1 In addition, the defendant was found responsible for a speeding 

violation under G. L. c. 90, § 17, but not responsible for a 

marked lane violation under G. L. c. 89, § 4A.
2

maintained a speed of seventy miles per hour. After the officer 

activated his cruiser's lights, the Hyundai continued without 

stopping for about one mile. The driver of the Hyundai, later 

identified as the defendant, was unable to stay in the proper 

lane and crossed the white fog line on the side of the road.

After the officer activated his siren and the defendant 

pulled the Hyundai over, the officer noticed that the 

defendant's eyes were red, glassy, and bloodshot, and he noticed 

a strong odor of alcohol. While answering the officer's 

questions, the defendant's speech was slurred, and the officer 

could not fully understand her. She denied that she had had 

anything to drink. After exiting the vehicle, the defendant was 

unsteady on her feet and unable to walk in a straight line or 

maintain her balance. The officer concluded she was "drunk,"

placed her under arrest, and transported her to the station.

Discussion. Prior to trial, the judge allowed the 

defendant's motion in limine which, consistent with Commonwealth

v. Canty, 466 Mass. 535, 544 (2013), sought to exclude opinion 

testimony from the arresting officer on whether the defendant 

was operating her vehicle while under the influence of alcohol. 

During his opening statement, however, the prosecutor stated 

that the officer "form[ed] an opinion" that the defendant "was 

operating under the influence." At sidebar, the trial judge 

admonished the prosecutor for this violation of his ruling and 
3

asked defense counsel if he wanted a mistrial. Defense counsel 

responded: "That's a tough spot for me obviously, but I think 

I'd ask for a stronger curative instruction . . . if the Court 

could consider excluding . . . a final opinion on this . . . 

that would certainly cure the issue." The judge declined to 

exclude the officer's opinion testimony altogether and instead 

proceeded to instruct the jury that opening statements are not 

evidence.

The Commonwealth acknowledges, and we agree, that the 

prosecutor should not have mentioned evidence that the judge had 

already ruled would be inadmissible under Canty. See 

Commonwealth v. Sylvia, 456 Mass. 182, 188 (2010) (prosecutor's 

opening statement must be based on reasonable and good faith

expectation of what evidence will show). The defendant does not 

argue that the misstatement was made in bad faith. Nonetheless, 

it should not have been made and, because the defendant objected 

and requested a curative instruction, we review for prejudicial 

error. Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 50 

(2003). "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 
4

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

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

We conclude that the jury were not substantially swayed by 

the prosecutor's error. First, the judge immediately instructed 

the jury that opening statements are not evidence. See Deloney, 

59 Mass. App. Ct. at 51, citing Commonwealth v. Simpson, 434 

Mass. 570, 584 (2001) ("Any possible prejudice was cured by the 

judge's instruction that opening statements are not evidence"). 

The judge in fact gave this instruction three times during the 

trial: before opening statements, following the prosecutor's 

error, and at the conclusion of the trial. We presume that 

jurors follow a judge's clear instructions. Commonwealth v. 

Helfant, 398 Mass. 214, 228 (1986).

Second, the arresting officer testified in full compliance 

with Canty and the trial judge's pretrial order. Specifically, 

he stated that he formed an opinion that the defendant was drunk 

based on her appearance, unsteadiness, demeanor, and odor of 

alcohol, but he did not offer an opinion on whether she had 

operated her vehicle while under the influence of alcohol.

The absence of prejudicial error is further demonstrated by 

the defendant's acquittal of operating under the influence -–

the violation most directly implicated by the prosecutor's 

error. This partial acquittal shows that the jury were not 

swept away by prejudice or emotion, but rather "able to sort 
5

out" the different requirements for each offense charged. 

Commonwealth v. Rock, 429 Mass. 609, 616 (1999). Nor was a 

finding of intoxication required to establish that the defendant 

was guilty of the negligent operation charge. See Commonwealth

v. Duffy, 62 Mass. App. Ct. 921, 921 (2004) (for negligent 

operation "the Commonwealth must prove that the defendant [1]

operated a motor vehicle, [2] upon a public way, [3] [recklessly 

or] negligently so that the lives or safety of the public might 

be endangered"). To the contrary, the jury could have found the 

defendant guilty of this offense based on the substantial 

evidence presented that did not involve intoxication, including 

her high rate of speed, delay in stopping the vehicle, and 

marked lane violations.

The defendant further argues that the trial judge should 

have issued a "stronger" remedy to the prosecutor's error by 

prohibiting the officer from offering opinion testimony about 

the defendant's intoxication. Because such testimony is 

expressly allowed under Canty, however, the judge did not abuse 

his discretion by declining this request and instead instructing 

the jury that opening statements are not evidence. In the 

alternative, the defendant contends that the judge should have 

declared a mistrial, even though defense counsel declined to 

request one when asked by the judge. "As this claim is raised 

for the first time on appeal, we review to determine whether, if 
6

error, it created a substantial risk of a miscarriage of 

justice." Commonwealth v. Pereira, 100 Mass. App. Ct. 411, 421 

(2021). The decision whether to declare a mistrial is within 

the discretion of the judge, "who is in the best position to 

determine whether or not anything has happened likely to affect 

the justice of the verdict" (citation omitted). Commonwealth v. 

Costa, 69 Mass. App. Ct. 823, 826-827 (2007). See Commonwealth

v. Amran, 471 Mass. 354, 360 (2015) ("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"). Here, the judge's failure to 

declare a mistrial sua sponte did not result in a substantial 

risk of a miscarriage of justice because he issued a prompt and 

forceful curative instruction in response to the prosecutor's 

error and the jury did not hear the inadmissible opinion 

testimony at trial. Commonwealth v. Nutter, 87 Mass. App. Ct. 

260, 266-267 (2015); Costa, supra at 827.

Judgment affirmed.

By the Court (Vuono, 

Wolohojian & Toone, JJ.2),

Assistant Clerk

Entered: March 6, 2024.

2 The panelists are listed in order of seniority.