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Com. v. Quinn6/18/2004
r improper argument requires reversal in any particular case, we consider whether the defendant seasonably objected, whether the error went 'to the heart of the case,' whether the judge's instructions mitigated the error, and *336 whether the error 'possibly ma [d]e a difference in the jury's conclusions.' " Commonwealth v. McCoy, 59 Mass.App.Ct. 284, 293, 795 N.E.2d 1183 (2003), quoting from Commonwealth v. Kozec, 399 Mass. 514, 518, 505 N.E.2d 519 (1987). See Commonwealth v. Santiago, 425 Mass. at 500, 681 N.E.2d 1205. We think that the error was prejudicial. The judge did not give a curative instruction. See Commonwealth v. Sevieri, 21 Mass.App.Ct. at 754, 490 N.E.2d 481. The Commonwealth's case was not overwhelming [FN3] and the main issue for the jury to decide was credibility. [FN4] In these circumstances, we cannot say either that the prosecutor's argument "had but very slight effect," or that the "judgment was not substantially swayed by [that improper argument]." Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983), quoting from Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
FN3. The defendant and the prosecutor referred to a videotape of the defendant's booking at the police station, which was admitted at trial and viewed by the jury. We have viewed the videotape. Of concern to us, but apparently unremarkable to the parties or the judge, is that the videotape depicts the defendant's refusal to take a breathalyzer examination. As far as we can determine from the record, it appears that the jury viewed the entire videotape, including the defendant's refusal to take the breathalyzer. It is improper to admit such evidence. Commonwealth v.
Seymour, 39 Mass.App.Ct. 672, 677, 660 N.E.2d 679 (1996).
FN4. In light of the result we reach, we need not consider the defendant's arguments that (1) during his cross-examination of the defendant, not objected to, the prosecutor pursued a line of questions bordering on vouching for the police officer; and (2) that defense counsel failed to challenge the admission of the defendant's statement that he had one drink that day, or request an instruction as to the voluntariness of the statement.
Judgment reversed.
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