RONALD KOGUT and another [Note 1] v. NOREEN TILDON

D'ANGELO, J. This appeal arises from the May 30, 2019 order of the Springfield District Court where, upon conclusion of a jury trial, judgment entered in favor of the defendant-appellee.

The plaintiff-appellant claims on appeal that the trial judge abused his discretion: (1) by sua sponte excluding evidence of a written warning issued to the defendant-appellee by a police officer following the motor vehicle accident that is the subject of this matter; and (2) by instructing the jury on impeachment and rehabilitation during the trial, without a prior objection or a request for a limiting instruction from either party. As to the first issue, we find no error. As to the second, the appellant waived his right to appeal, but in any event, we find that no substantial risk of miscarriage of justice was created by the judge's action. Accordingly, we affirm the entry of judgment in favor of the defendant- appellee.

Background. The appellant in this case is Ronald Kogut ("appellant"), and the appellee is Noreen Tildon ("appellee"). According to the testimony introduced at the trial, on March 30, 2017, the appellee was waiting to turn left at a stop sign as she was leaving the Walmart parking lot in Chicopee, Massachusetts. While she was stopped and before she turned left, the appellee observed two vehicles approaching from her left on the road she was attempting to turn left onto. The first vehicle approaching her had its right directional signal on, indicating that the vehicle would be turning right into the Walmart parking lot that the appellee was about to leave. After observing the front vehicle's right directional signal, the appellee determined that as the oncoming vehicle came to a stop to complete its right-hand turn, it was safe for her to complete her left-hand turn. As the appellee was completing her turn, the second oncoming vehicle struck the rear driver's side of appellee's vehicle. The appellant was a passenger in that second oncoming vehicle. Prior to trial, it was alleged that the Chicopee police department responded to the accident scene and that a police officer issued a written warning to the appellee.

The appellant brought suit alleging that the appellee negligently injured him when her motor vehicle collided with the motor vehicle in which he was riding. A jury trial was scheduled in the Springfield District Court, and immediately prior to the commencement of the trial, the judge heard and ruled on motions in limine.

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The judge inquired as to whether a police officer was expected to testify and whether there would be testimony concerning a motor vehicle citation that had previously been mentioned. The appellant, through counsel, initially stated that the appellee was issued a citation by the Chicopee police department and argued that a citation, although not conclusive, is evidence of negligence and is admissible. Counsel for the appellee pointed out that the appellee was not issued a citation, but rather a written warning, and she objected to the introduction of any evidence of a warning at trial. The trial judge found that the warning was more prejudicial than probative and excluded it.

During trial, while counsel for the appellee was cross-examining the appellant, the appellant's in-court testimony concerning the status of his employment and his income at the time of the accident appeared to conflict with his prior deposition testimony and interrogatory answers. The trial judge sua sponte, without a request for a limiting instruction or an objection, instructed the jury on "impeachment by prior inconsistent statement." The judge instructed the jury that any facts mentioned in the prior deposition testimony or interrogatory answers that had been identified could not be considered as evidence, and could be considered only on the issue of the credibility of the appellant's trial testimony. The judge later, again sua sponte, repeated this same instruction to the jury following allegedly inconsistent testimony given by appellee while she was cross-examined by the appellant's counsel.

During redirect examination of the appellant concerning his income and employment before and after the subject accident, the trial judge again sua sponte instructed the jury on "rehabilitation by prior consistent statement."

Following the conclusion of the evidence, closing arguments, and the judge's instructions on the law, special questions were submitted to the jury. The jury ultimately determined that the appellee was not negligent in the operation of her vehicle, and judgment entered in her favor. The appellant timely filed this appeal to the Appellate Division.

Discussion. As an initial matter, we reject the appellant's request that we liberally construe his appellate brief and all relevant matters more generously because he is representing himself without an attorney. In short, self-represented litigants are bound by the same rules of procedure as litigants represented by counsel. McCormick v. Labor Relations Comm'n, 412 Mass. 164, 170 n.1 (1992); Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985).

The appellant argues that the trial judge abused his discretion by excluding evidence of the written warning issued to the appellee following the accident. We will not disturb a trial judge's evidentiary rulings absent an abuse of discretion. Commonwealth v. Polk, 462 Mass. 23, 32 (2012). We will not interfere with a trial judge's ruling even if on appellate review the court might have reached a different conclusion. We may reverse, however, if such a decision on what is to be admitted in evidence is based on "whimsy, caprice, or arbitrary or idiosyncratic notions" (citation omitted). N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013).

"The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice . . . ." Mass. G. Evid. § 403 (2019). If the evidence in question goes to a central issue in the case, the scale weighs in favor of admitting the evidence. Commonwealth v. Martinez,

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476 Mass. 186, 195 (2017). On appeal, in order to disturb the judge's exercise of discretion, it must be shown that the proffered evidence had some probative value and its exclusion was prejudicial.

In this case, we find the trial judge properly exercised his discretion by excluding the written warning issued to the appellee. Particularly without any indication that a police officer witnessed the subject accident, the introduction of testimony that after the accident a police officer gave the appellee a warning would have created substantial prejudice to the appellee, with little or no probative value for the appellant. Much like a police officer's expression of an opinion or a conclusion in a written report as to whether a motorist is guilty of a motor vehicle offense, a written warning is inadmissible hearsay. See Kelly v. O'Neil, 1 Mass. App. Ct. 313 (1973).

In addition, it is important to note that the appellee was not actually cited for her actions in the underlying accident. If she had been cited, she would have had the opportunity to contest her citation and pursue an appeal of any adverse ruling. See G.L. c. 90C, § 3. See also Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 6-7 (1988). However, a motorist has no ability to contest a written warning. Therefore, there was no "decision" or "judicial finding" of a civil motor vehicle infraction or breach of statute by the appellee. On this basis alone, the trial judge did not abuse his discretion when he excluded the warning from evidence.

With regard to the assertion that the trial judge in some fashion acted improperly in even raising the issue of police testimony and/or a citation, we point out that a judge may deal with potential evidence on his or her own motion. The standard of review, moreover, is the same whether evidence is excluded on objection or on the judge's own motion, unless the judge exhibits bias in acting on his own motion. Commonwealth v. Haley, 363 Mass. 513, 518-519 (1973).

Although the judge invited the parties to address the issue of the admissibility of a citation or a written warning after various motions in limine filed by the parties were resolved, the judge clearly had the authority to do so, and he showed no bias in making his decision. After the appellee made an objection, both parties were heard, and the question was correctly decided. As such, the trial judge did not abuse his discretion by excluding evidence of the written warning given to the appellee by the Chicopee police department following the underlying accident.

The appellant further argues that the trial judge committed reversible error by instructing the jury on impeachment and rehabilitation during the trial. As to this claim, we first note that the appellant's counsel did not object to the jury instructions on impeachment or rehabilitation at any time during the trial. "When, at trial, a party fails to object to a given jury instruction, that party waives his right to pursue the matter on appeal." Jenkins v. Ellis, 2008 Mass. App. Div. 109, 111, citing Jarry v. Corsaro, 40 Mass. App. Ct. 601, 603 (1996). See also Mass. R. Civ. P. 51(b). Appellant's objections to those instructions were thus waived.

In any event, were we to reach the issue, we find no substantial risk of a miscarriage of justice. See Commonwealth v. Mercado, 456 Mass. 198, 205 n.14 (2010) (where there has been no objection at trial to criminal jury instruction that was provided, appellate court's review is limited solely to whether instruction created substantial likelihood of miscarriage of justice); Commonwealth v. Nardi, 452 Mass. 379, 394 (2008) (same); Von Richthofen v. Dana-Farber Cancer Instit., No. 07-P-1555 (Mass. App. Ct. Dec. 24, 2008) (unpublished Rule 1:28 opinion) (reviewing unpreserved

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error in civil jury instruction in dicta for substantial injustice). After reviewing the record before us, we find that the appellant is correct in his suggestion that trial judge should have waited for an objection or a request for a limiting instruction before instructing the jury on his own. However, we also find that the judge's instructions on impeachment and rehabilitation did not create a substantial likelihood of a miscarriage of justice in this case.

Without an objection or a limiting instruction, a prior inconsistent statement may be considered as substantive evidence. See Commonwealth v. Niemic, 483 Mass. 571, 581 & n.15 (2019) (holding that prior inconsistent statement made under oath may be admissible not just to impeach trial testimony, but also for its truth). See also Mass. G. Evid. § 613 (2019); Commonwealth v. Luce, 399 Mass. 479, 482 (1987). Here, without the judge's intervention, the answers to interrogatories and deposition testimony in question would have come in for all purposes. By providing jury instructions on impeachment and rehabilitation sua sponte without a prior objection or a request by one of the parties, the trial judge prohibited the jury from considering the statements as substantive evidence.

At no time, however, did the judge direct the jury as to any particular inference they should draw from the allegedly conflicting testimony. Moreover, the trial judge correctly explained the law concerning impeachment and rehabilitation and the manner in which a jury may consider testimony a witness provides in court and prior out-of-court testimony.

In addition, as noted above, the testimony in question concerned the appellant's employment history and income before and after the accident, not the accident itself. In light of the fact that the jury did not even reach the special questions the parties submitted concerning causation and damages, finding that the appellee was not negligent, it is hard to see how the trial judge's instructions could have created a substantial likelihood of a miscarriage of justice in this case. Even if the trial judge had not instructed the jury on impeachment and rehabilitation, there is nothing to suggest that the jury as fact finders would have come to a different conclusion more favorable to the appellant. [Note 3]

In summary, we find no error in the trial judge's decision to preclude the appellant from introducing evidence of a written warning from a police officer; we find no evidence of judicial bias; and we determine that the appellant waived the issue of the judge's instructions on impeachment and rehabilitation, but that these instructions, in any event, did not cause a substantial risk of a miscarriage of justice. For these reasons, the judgment of the District Court in favor of the appellee is affirmed.