Opinion
13-P-1823
11-18-2014
COMMONWEALTH v. CHAD BOURGEOIS.
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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a Superior Court jury trial, the defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24 (1)(a)(1). At a later jury-waived trial, the defendant was convicted of the subsequent (fourth) offense portion of the OUI charge, and also was found guilty of operating a motor vehicle while his driver's license was suspended for OUI.
In answers to special questions, the jury found the defendant guilty based upon both the impaired operation theory and the per se theory.
On appeal, the defendant argues: (1) the judge erroneously denied his motion to suppress a statement he made to a State police officer; (2) his trial counsel provided ineffective assistance by failing to impeach a prosecution witness; (3) improprieties in the Commonwealth's opening statement and closing argument created a substantial risk of a miscarriage of justice; (4) there was insufficient evidence to support his conviction of operating after suspension; and (5) the judge erroneously failed to mention the operating after suspension charge in conducting the jury-waiver colloquy prior to the second phase of the case. We affirm in part and reverse in part.
Background. Shortly before 11:00 P.M. on May 17, 2011, the defendant and a companion, Justin Robichaud, were traveling in a motor vehicle that struck another vehicle head-on. When State police arrived to investigate, the defendant was uncooperative and denied driving the vehicle; however, several witnesses at the scene identified him as the driver. Civilian witnesses and the investigating officers observed the defendant to be intoxicated.
The defendant's blood alcohol level later was determined to be between .17 and .18.
The defendant, who had a small cut on his head, was taken to the hospital, where Sergeant John Tasker was deployed to stay with him. At the hearing on the defendant's motion to suppress, Tasker testified that he and the defendant engaged in small talk. After the defendant was found to have no significant injuries, Tasker asked him what happened. The defendant responded by saying, "I don't know. I fucked up."
The defendant sought to have this statement suppressed because he had not received Miranda warnings. The motion judge denied the motion on the ground that the defendant, who already had made arrangements to be picked up by his mother at the emergency room, felt free to leave and was not in custody. As it turned out, the statement did not come in evidence at trial. However, Tasker did testify at trial that he overheard a conversation between the defendant and a nurse, in which the defendant said that he was driving the car at the time of the accident.
Discussion. 1. Motion to suppress. Although counsel acknowledged at oral argument that no statement violating the defendant's rights was admitted at trial, he continued to press the defendant's argument that it was prejudicial error to deny suppression of the statement recounted by Tasker at the suppression hearing. The argument is without merit. Because the statement was never heard by the jury, any error necessarily was harmless beyond a reasonable doubt. See generally Commonwealth v. Fudge, 20 Mass. App. Ct. 382, 386 (1985).
2. Ineffective assistance of counsel. The defendant also contends that his trial counsel was ineffective for failing to impeach Tasker with his prior testimony. Passing on the defendant's failure to raise the issue by the preferred means of filing a motion for a new trial, see Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006), counsel was not ineffective. "Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations," which we ordinarily do not second guess. Commonwealth v. Garvin, 456 Mass. 778, 792 (2010). Here, where cross-examining Tasker with his prior testimony was likely to damage rather than assist the defense, counsel's strategy was not manifestly unreasonable. See Commonwealth v. Jenkins, 458 Mass. 791, 805-806 (2011).
3. Opening statement and closing argument. Because the prosecutor had a good faith basis to believe that Tasker would testify as he did at the suppression hearing, it was not error for her to refer to the anticipated testimony in her opening statement. See Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 544 (2009). While the prosecutor's closing argument included some overstatement and hyperbole, there was no objection, and we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011). "[T]he jury are to be given a measure of sophistication in sorting out excessive claims made in closing argument." Commonwealth v. Frank, 433 Mass. 185, 196 (2001). Furthermore, the jury were instructed on the limited function of closing argument, and the Commonwealth's case was strong.
The defendant argued that, in identifying the defendant as the driver, Robichaud lied and three other witnesses were "honestly mistaken." In responding, the prosecutor asked the jury, "So, does it make sense that Robichaud and all these people are lying, and that it's some vast conspiracy against the defendant that he is on trial for something he didn't do, or did it really just happen the way the witnesses are telling us. Again, you have to make that determination, but I'm suggesting to you that the Commonwealth's witnesses are credible."
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4. Operating after suspension. After independent review, we conclude that the Commonwealth's concession is well-taken and that there was insufficient evidence that the defendant was on notice of the suspension of his license. To prove that element of the offense, the Commonwealth relied solely on a criminal docket that imposed a loss of license without specifying any time period. That was not enough. See and compare Commonwealth v. Oyewole, 84 Mass. App. Ct. 669, 674-675 (2014).
5. Jury-waiver colloquy. Because we reverse the operating after suspension conviction on other grounds, we need not consider whether the jury-waiver colloquy was defective as to that charge.
Conclusion. The judgment on the indictment charging operating a motor vehicle while under the influence of intoxicating liquor (OUI) (fourth offense) is affirmed. The judgment on the indictment charging operating a motor vehicle while the defendant's license was suspended for OUI is reversed, the finding is set aside, and judgment shall enter for the defendant. The case is remanded for resentencing
So ordered.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 18, 2014.