1. NOTICE: Decisions issued by the Appeals Court pursuant to its
rule 1:28 are primarily addressed to the parties and, therefore,
may not fully address the facts of the case or the panel's
decisional rationale. Moreover, rule 1:28 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 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.
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
14-P-624
COMMONWEALTH
vs.
RICHARD J. DEPRIMEO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions in the District
Court of negligent operation of a motor vehicle, G. L. c. 90,
§ 24(2)(a), and a marked lanes violation, G. L. c. 89, § 4A. He
asserts error in the testimony of the police officer who issued
the citation for negligent operation, and ineffective assistance
because his counsel did not move to strike the testimony at
issue. We refer to the facts in our discussion as they pertain
to the issues.
Police officer's testimony. The officer who issued the
citation testified without objection on direct examination that
after the accident underlying the charges, the defendant stated
he had been reaching across the front passenger seat for a cup

2. of coffee while driving. Defense counsel returned to this
subject on cross-examination, and the officer stated:
"Based upon the conditions of the roadway and the actual
roadway itself, I didn't feel it was reasonable for someone
to reach across the seat, and take their eyes from the
road, and put the public at risk."
Defense counsel again elicited the same testimony from the
officer at the end of his cross-examination:
Q. "Just one last thing. Did I understand you
correctly, sir, to say that you didn't believe it
would be reasonable to reach across to the
passenger side for his coffee? Is that what you
said?"
A. "Yes. Not given the conditions of the roadway or
that, ah, the weather at that time."
The defendant argues that this testimony created a
substantial risk of a miscarriage of justice because the officer
was commenting on the ultimate issue in the case. The
commission of one unreasonable act, engaging in distracted
driving, while constituting an element probative of the charge,
is not alone the equivalent of negligent operation.1
Here
however, the question is much closer, as counsel elicited
testimony that incorporated several elements of the charge
1
As the Commonwealth correctly points out, speed, weather
conditions, traffic density, road configuration, and numerous
other factors are pertinent to a conviction for negligent
operation. See Commonwealth v. Gurney, 261 Mass. 309, 312
(1927) (sightlines, opportunity to avoid accident, speed);
Commonwealth v. Charland, 338 Mass. 742, 744 (1959) (speed);
Commonwealth v. Campbell, 394 Mass. 77, 83 (1985) (crossing
center line, speed); Commonwealth v. Burno, 396 Mass. 622, 624
(1986) (number of individuals endangered).
2

3. including weather and road conditions and, more troubling, the
officer opined that the defendant had "put the public at risk."
Assuming, but not deciding, that this testimony invaded the
province of the jury, we conclude that it did not create a
substantial risk of a miscarriage of justice in the context of
the trial evidence viewed in its entirety.
Three other witnesses testified that it was inclement at
the time of the accident, recalling rain, sleet, snow, or some
combination of these. One witness, travelling behind the
defendant, testified that she kept an even distance from his car
and conceded that they were "kind of speeding." She also
testified that the defendant neither used his directional
signals nor activated his brake lights at any time before the
collision. The accident happened at a bend in the road,
entitling the jury to infer negligence from a failure to reduce
speed to an even greater extent than would have been prudent on
a straight stretch. The citing officer testified that "the
roads were wet," and that traffic was "generally heavy."
Finally, while not dispositive, the jury were entitled to take
into consideration that the defendant's car crossed the center
line, went into the oncoming lane and collided with a vehicle
that was traveling in its designated lane.
Cross-examination of defendant. The defendant testified on
his own behalf, and denied that he told the police that he had
3

4. been reaching across the seat for his coffee at the time of the
accident. On cross-examination, the prosecutor confronted the
defendant with the discrepancy between his testimony and that of
the officer, culminating that line of inquiry2
with the question,
"Are you calling Officer Carlson a liar?" No objection was
raised, but the judge interrupted the proceedings at that point.
A sidebar discussion ensued. Thereafter, no further questions
were asked, and the defendant rested.
The question was improper. Commonwealth v. Johnson, 412
Mass. 318, 328 (1992) (attempt to have defendant assess
credibility of other witnesses "obviously improper"). In the
context of the evidence as a whole, however, we are not
2
The relevant exchange was as follows:
Q. "It's fair to say your memory differs
greatly from Officer Carlson --"
A. "Um --"
Q. "-- about the coffee cup?"
A. "Fair to say Officer Carlson made it up. I'm
fair to say. I didn't have a coffee in the
car."
Q. "And now, you heard Officer Carlson's an
eight-year police officer?"
A. "Yes."
Q. "And, he walked up here, he took an oath to
tell the truth?"
A. "Yes."
Q. "And, you're taking that same oath to tell
the truth here today --"
A. "Yes, sir."
Q. "The entire truth?"
A. "Yup."
Q. "So, just so I have it for my understanding,
are you calling Officer Carlson a liar?"
4

5. persuaded that the error created by a single unanswered question
produced a substantial risk of a miscarriage of
justice. Commonwealth v. Ward, 15 Mass. App. Ct. 400, 402 (1983)
("Only one single improper question," to which the answer was
not responsive, did not result in prejudicial error).3
See Commonwealth v. Kines, 37 Mass. App. Ct. 540, 543 (1994).
The judge properly instructed the jury that questions are
not evidence, and that they alone have the responsibility to
resolve conflicts in the evidence and determine the truth for
purposes of their verdict. We conclude that the prosecutor's
error did not result in a substantial risk of a miscarriage of
justice.4
Ineffective assistance. Substantially for the reasons set
forth in our consideration of the defendant's claims of
3
Justice Smith's concluding sentence in Ward bears repeating:
"The fact that we find no prejudicial error in this case,
however, should not be viewed as lessening our condemnation of
the practice employed here." Ward, supra at 402
4
We are also unpersuaded by the defendant's assertion that a
single reference in the prosecutor's closing, that there was "no
mention of any slipping [or] any sliding [or] any other reason
[the defendant] ended up in the entirely other lane of travel,"
taken out of context, constitutes burden shifting which
aggravated the effect of the improper question about the
officer's credibility. The prosecutor stated two sentences
later that his burden was "not to show exactly how or exactly
why [the defendant] failed to use that due care, but that it
happened." We review the closing in its entirety, not
piecemeal. Commonwealth v. Phillips, 452 Mass. 617, 630 (2008).
In any event this was proper commentary on the discrepancy in
testimony between the defendant and the officer. Commonwealth
v. Williams, 450 Mass. 879, 888-889 (2008).
5

6. error, supra, we conclude that the defendant was not prejudiced
by ineffective assistance of counsel. While the cross-
examination of the officer needlessly invited repetition of the
testimony that the defendant had admitted he was reaching for a
coffee cup, the single reference to a fact already in evidence
did not create a substantial risk of a miscarriage of justice
and thus failed to satisfy the second prong of Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974).
The question by defense counsel that elicited the opinion
by the police officer that various factors "put the public at
risk" would have been properly subject to a motion to strike had
one been made. We do not consider this omission to have been
prejudicial in view of the other evidence of negligent operation
recited above. Cf. Commonwealth v. Sepheus, 468 Mass. 160, 172
(2014). We note in addition, that while the omission is in
contrast to counsel's successful objection to opinion testimony
provided on direct examination by the same witness, the record
reveals at least the possibility that eliciting a clear display
of conclusory statements by the police officer would support the
defense strategy pursued in closing argument, namely that the
police officer was biased in favor of the firefighter who was
driving the other car. Thus the claim founders on both prongs
of Saferian, supra. The same result obtains to counsel's
failure to object to the prosecutor's improper, albeit
6

7. unsuccessful, attempt to have the defendant comment on the
truthfulness of the officer's testimony.
Judgments affirmed.
By the Court (Kafker,
Grainger & Agnes, JJ.5
),
Clerk
Entered: January 30, 2015.
5
The panelists are listed in order of seniority.
7