COMMONWEALTH vs. BRIAN R. GOURGUE.

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
25-P-1181
COMMONWEALTH
vs.
BRIAN R. GOURGUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a 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).1 The charge stemmed from
a two-car accident, which occurred on a Sunday afternoon in
February 2022. While his appeal was pending, the defendant
filed a motion for a new trial, which was denied by the trial
judge without an evidentiary hearing. The defendant appeals
1 The defendant also was found responsible for two civil
infractions: speeding, G. L. c. 90, § 17, and a marked lanes
violation, G. L. c. 89, § 4A.

2
from the judgment of conviction and the denial of his new trial
motion.2
As we discuss in more detail below, the primary claims of
error arise from the Commonwealth's failure to provide video
footage from a body camera worn by State Police Trooper Thomas
Petitti, who investigated the accident.3 The video footage
depicts the scene of the accident and the camera also recorded
statements by the defendant regarding the cause of the accident.
In his direct appeal and in his new trial motion, the defendant
argues that the judge should have declared a mistrial when the
discovery violation came to light in the middle of the trial.
He also asserts that the evidence was insufficient to convict
him. There is no dispute that the Commonwealth should have
disclosed the video footage prior to trial as part of its
mandatory discovery obligations pursuant to Mass. R. Crim. P.
14, as appearing in 495 Mass. 1501 (2024).4 However, we
conclude, as did the trial judge, that the discovery violation
2 The two appeals were consolidated for briefing and
decision on our own motion.
3 The Commonwealth also failed to produce video footage from
a camera worn by another State Police Trooper, Kyle Pavao, who
also was at the scene, and from Trooper Pavao's dashboard
camera.
4 The Commonwealth does not argue otherwise and commendably
concedes its error.

3
did not substantially prejudice the defendant. We also conclude
that the evidence was sufficient to sustain the Commonwealth's
burden of proof. Consequently, we affirm the conviction and the
order denying the new trial motion.
Background. 1. Facts. We summarize the evidence
presented at trial in the light most favorable to the
Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979). At approximately 3:30 P.M. on February 20, 2022,
Trooper Petitti responded to a report of an accident on Route
140 in Freetown.5 When he arrived, Trooper Petitti saw two cars,
a red Chevrolet Malibu and a silver sport utility vehicle (SUV),
about twenty yards off the road. The cars were touching each
other and had come to rest down an embankment in a wooded area.
Trooper Petitti identified the defendant, who at that time was
standing on the side of the road, as the operator of the Malibu
and Myrlande Remy as the driver of the SUV. Remy had two
passengers, her sister and twelve-year-old nephew. Both
passengers were able to get out of the car, but Remy was trapped
inside with injuries and needed to be extricated by emergency
medical personnel. Trooper Petitti described the traffic as
moderate, and the road as dry and clear. Remy, who estimated
5 The judge's memorandum of decision and order on the
defendant's motion for a new trial incorrectly states that the
accident occurred on February 28, 2022.

4
she was not driving more than fifty miles per hour, testified
that she saw the defendant "going in and out" of traffic in her
rearview mirror before he hit the back of her car "fast and
hard." The defendant lost control of his vehicle and hit Remy's
car again after which both cars "flew" off the road and down
into a ditch. Paul Barr witnessed the accident. He was driving
a few cars behind Remy when the defendant passed him at a high
rate of speed, cut off another car and then "zig zagged out into
the high-speed lane" before it "flipped up on its side, took out
[Remy's] SUV [and] went into the gulley." Barr estimated that
he was driving about seventy miles per hour when the defendant
"flew" by him. According to Barr, the defendant's car "came out
of nowhere" and both cars "flipped over upside down."
2. The video footage. During cross-examination, Trooper
Petitti disclosed that he had been wearing a body camera during
his investigation at the scene of the accident. In response to
a question about whether he had taken any photographs, Trooper
Petitti replied that he had not but there was footage from his
body-worn camera. In response to additional questions, Trooper
Petitti confirmed that the camera had "captured" the scene and
recorded statements made to him by the defendant and other
witnesses. At the conclusion of the trooper's testimony,
defense counsel moved for a mistrial. She informed the judge at

5
sidebar that the Commonwealth had not provided any video footage
and that such evidence would be "incredibly material and
relevant." Although he did not view the video footage at the
time, the judge determined that the footage was not "necessarily
material" and declined to order a mistrial.
Sometime after the trial had concluded, the Commonwealth
produced the video footage from Trooper Petitti's body-worn
camera.6 The footage depicts the two cars in a wooded area side
by side in an upright position and not flipped over as Barr had
testified. The video footage also recorded the defendant's
description of the accident. He said that Remy had "slammed" on
her brakes for no reason and that he tried to "move out [of] the
way," but he "clipped" the back of Remy's car and then the two
cars went off the road.
3. The defendant's motion for a new trial. As previously
noted, the defendant filed a motion for a new trial claiming,
among other things, that the judge should have declared a
mistrial due to the Commonwealth's discovery violation.7 The
6 The video footage was submitted as exhibit 2 to the
defendant's new trial motion. At the same time, the
Commonwealth produced the video footage from Trooper Pavao's
body worn camera and dashboard camera from Trooper Pavao's
vehicle. These two videos were submitted as exhibits 3 and 4.
7 In his new trial motion, the defendant characterizes the
video footage from Trooper Pavao's body-worn camera and
dashboard as newly discovered evidence. We treat the failure to

6
defendant also maintained that the video recording was
exculpatory because it could have been used to impeach the
Commonwealth's witnesses. He further asserted that because he
did not know his statement to Trooper Petitti had been recorded,
he was prevented from making an informed decision about
testifying at trial.
The judge reviewed the video footage and correctly
concluded that it should have been included in pretrial
discovery. As a result, in order to prevail, the defendant was
required to "demonstrate [only] that a substantial basis exists
for claiming prejudice from the nondisclosure." Commonwealth v.
Tucceri, 412 Mass. 401, 412 (1992). The judge then determined
that the defendant had not met his burden because even if the
Commonwealth had provided the video footage in a timely fashion,
the outcome of the trial would not have been any different. See
Commonwealth v. Daye, 411 Mass. 719, 729 (1992) (failure to
provide report prepared by State police officer, which should
have been disclosed, did not entitle defendant to posttrial
relief where court was confident that, if report had been
supplied in timely fashion, report and information it contained
provide these video recordings as a discovery violation, which
inures to the defendant's benefit. See Commonwealth v. Grace,
397 Mass. 303, 305 (1986) ("A defendant seeking a new trial on
the ground of newly discovered evidence must establish . . .
that it casts real doubt on the justice of the conviction").

7
would not have influenced jury deliberations). In reaching his
conclusion, the judge reasoned that none of the video footage
would have been a significant factor in assessing Barr's
credibility because both Trooper Petitti and Remy contradicted
Barr's claim that the vehicles had flipped over.
Regarding the defendant's decision not to testify, the
judge reasoned that because the defendant had not claimed in an
affidavit or otherwise demonstrated that he would have testified
had he viewed the video footage in advance of the trial, he had
not established that he suffered any prejudice. Furthermore,
the judge reasoned that because the "video also records the
[d]efendant giving a largely incoherent explanation to the
trooper of how the accident happened," the video recording was
of little benefit to him.
Lastly, the judge rejected the defendant's claim that the
evidence was insufficient to prove that he operated his vehicle
negligently. He determined that Remy's testimony and the
photographs depicting the damage to the vehicles provided a
sufficient basis from which the jury could find the defendant
guilty of the offense beyond a reasonable doubt.
Discussion. We first address the question whether the
judge abused his discretion when he denied the defendant's
request for a mistrial. See Commonwealth v. Bryant, 482 Mass.

8
731, 739 (2019) (denial of motion for mistrial is reviewed for
abuse of discretion). He did not. To begin with, we note that
defense counsel did not seek a continuance. See Mass. R.
Crim. P. 14.2 (j) (1), 495 Mass. 1510 (2024) (court may grant
continuance for failure to comply with any discovery order).
See also Commonwealth v. Cundriff, 382 Mass. 137, 150 (1980)
(defense counsel should, when faced with delayed disclosure
situations, seek "additional time for investigative purposes").
Nor did defense counsel seek permission to question Trooper
Petitti further with regard to the defendant's statements of
which she was aware.8 In addition, while at the time the
defendant sought a mistrial the contents of the video recordings
was not fully known, defense counsel did not articulate a
sufficient basis for concluding that the defendant was
prejudiced. For example, defense counsel did not argue that the
defendant's planned defense was disrupted in any way. See
Commonwealth v. Baldwin, 385 Mass. 165, 175-176 (1982). Nor was
there any allegation of prosecutorial misconduct, which in some
circumstances may warrant sanctions, a mistrial, or dismissal of
8 Trooper Petitti's report of the incident, which was
provided to the defendant prior to trial, stated that the
defendant told him: "[The silver SUV] 'slammed on their brakes'
and it caused the crash." Defense counsel attempted to
introduce the defendant's statement during cross-examination,
but the prosecutor's objection was sustained.

9
the charges altogether. See generally Commonwealth v. Edwards,
491 Mass. 1, 8, 9 (2022).
We turn next to the defendant's claim that the evidence was
insufficient. In doing so, we "consider the evidence introduced
at trial in the light most favorable to the Commonwealth, and
determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(citation omitted). Commonwealth v. Lagotic, 102 Mass. App. Ct.
405, 407 (2023). "The inferences that support a conviction need
only be reasonable and possible; [they] need not be necessary or
inescapable" (quotation and citation omitted). Commonwealth v.
Howe, 103 Mass. App. Ct. 354, 357 (2023).
Here, the Commonwealth was required to "prove that the
defendant (1) operated a motor vehicle, (2) on a public way, and
(3) [did so] negligently, so that the lives or safety of the
public might be endangered" (citation omitted). Howe, 103 Mass.
App. Ct. at 357. The defendant focuses on the third element and
argues that the evidence did not establish that his conduct
posed an unreasonable risk of harm beyond a reasonable doubt.
To the contrary, testimony that the defendant was speeding,
weaving from one lane to another, using both lanes to pass
vehicles, and driving so close to Remy's car that he clipped it
"hard and fast" causing him to lose control and hit Remy again

10
was more than sufficient for a rational trier of fact to
conclude the lives or safety of others was in danger. "[T]his
was not a case where the Commonwealth relied on the mere
happening of [an] accident to prove negligent operation"
(quotation and citation omitted). Id. at 359. Rather, the
evidence demonstrated that the defendant was driving recklessly
before the accident and that his recklessness was the cause of a
serious incident.
Moreover, contrary to the defendant's assertion, the fact
that the testimony of the witnesses was not consistent in every
respect has no bearing on the question of sufficiency. See
Commonwealth v. Merry, 453 Mass. 653, 662 (2009). In his final
instructions to the jury, the judge made clear that the jurors
themselves "are the sole judges of the credibility of a witness"
and cautioned that any conflicts, discrepancies, or
inconsistencies in the testimony should be examined by them and
resolved by them. Nor is it significant, as the defendant
claims, that the jury asked to be reinstructed on the third
element of negligent operation. There are many reasons for such
a request, and we will not speculate as to what they were here.
In sum, based on the evidence presented in the light most
favorable to the Commonwealth, a rational trier of fact could
have concluded beyond a reasonable doubt that the defendant

11
operated his vehicle in a manner that "might have [and did]
endanger[] the lives and safety of the public." Commonwealth v.
Teixeira, 95 Mass. App. Ct. 367, 370 (2019).
Finally, we turn to the denial of the defendant's motion
for a new trial. In reviewing the denial of a motion for a new
trial, "we examine the motion judge's conclusions only to
determine whether there has been a significant error of law or
other abuses of discretion" (citation omitted). Commonwealth v.
Miller, 101 Mass. App. Ct. 344, 348 (2022). "Where, as here,
the motion judge was the trial judge, [r]eversal for abuse of
discretion is particularly rare" (quotation and citation
omitted). Id.
Given our conclusion that the request for a mistrial was
properly denied and that the evidence was sufficient, it follows
that the judge did not abuse his discretion in denying the new
trial motion on those grounds. We also conclude that the judge
did not abuse his discretion in concluding that the video
footage had little impeachment value. The defendant claimed
that the video recordings would have helped to impeach Barr's
testimony that the cars had flipped over and Remy's testimony
that the traffic was light at the time of the accident.
However, defense counsel effectively highlighted these

12
discrepancies in her closing argument.9 She also made effective
use of the fact that the Commonwealth had failed to provide the
jury with the video footage.10 Additionally, we, like the judge,
are not persuaded that had the defendant viewed the video
footage before trial that it would significantly influenced his
decision to testify or not. Having conducted our own review of
the video recording, we agree with the judge that the defendant
is not portrayed in the best light, and it is doubtful that
9 In addition, contrary to the defendant's assertion, our
independent review of the video footage shows that the traffic
was light and the road clear as the witnesses testified. See
Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018); id. at
646 (affirming "that an appellate court may independently review
documentary evidence").
10 Defense counsel argued:
"You heard that there was camera footage that the trooper
recorded when he came to the scene that day, that he was
recording when he spoke to Mr. Gourgue, that he was
recording when he saw the vehicles, that he recorded the --
he would have recorded the damage to the vehicles, he would
have recorded what they looked like, where they were. He
would have recorded Ms. Remy. He would have recorded his
interactions with Paul Barr. He would have recorded his
interactions with other witnesses on the scene. But we
don't have that video. You're not going to look at that
video. You have to rely on the memories -- the flawed
memories and assumptions from people from over a year ago."

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proper disclosure of the video footage before trial would have
made a difference in his decision.
Judgment affirmed.
Order denying defendant's
motion for new trial
affirmed.
By the Court (Vuono, Meade &
Hillman, JJ.11),
Clerk
Entered: October 13, 2026.
11 The panelists are listed in order of seniority.