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Defense urges new trial after witness' outburst; commonwealth says curative instruction sufficed
Summary
In Commonwealth v. Devizon Lopez Vera Gularte, defense counsel argued the trial judge abused discretion by allowing a witness' uncontradicted outburst and failing to grant a mistrial; the commonwealth told the appeals panel curative instructions cured any error. The panel also questioned counsel about a request to impound parts of the record.
Defense attorney Carl Soucecki told the three-justice panel that testimony heard by the jury — including an uncontradicted outburst from the complainant and a remark about the defendant pulling down victims’ pants — introduced impermissible propensity evidence and tainted the trial.
Soucecki said trial counsel objected, the judge struck the last question and answer and gave a curative instruction, but then permitted the complainant to interject “yes, there is,” which Soucecki said left jurors with the impression the defendant was a serial offender and warranted a mistrial.
The panel pressed Soucecki on why the later admonitions and the strike were insufficient. He replied that the curative instruction and the judge’s subsequent remarks implied other allegations existed, and that jurors were left to “sit with that information” during a 30-minute recess.
Assistant District Attorney Ryan McCrory answered that the trial judge properly exercised discretion in relying on curative instructions rather than a mistrial, citing appellate authority that an instruction to disregard can functionally cure exposure to inadmissible testimony. McCrory told the court the jury heard far more inflammatory but admissible testimony about the charged conduct and that prior cases support treating the instruction as equivalent to striking testimony when appropriate.
The panel also questioned defense counsel about seeking to impound portions of the appellate record (citing the rule the parties referenced as section 100(c)/“JF”) and whether automatic sealing applied given a superior-court disposition that remained publicly available. Counsel said the impoundment motion sought to protect privileged material tied to motions in limine and the prejudicial effects of introduced prior-bad-act assertions; the commonwealth disagreed that public availability in the trial court defeated impoundment here.
After extended questioning and statutory discussion, both sides rested and the case was submitted to the court. The panel asked no further questions about next steps on impoundment timing.
