Opinion
14-P-936
04-06-2016
COMMONWEALTH v. DARRELL F. DAY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor and negligent operation of a motor vehicle, and found responsible for possession of an open container of an alcoholic beverage in the passenger area of a motor vehicle. On appeal, he claims error in the prosecutor's closing and in the admission of testimony regarding a bottle of rum observed by the arresting officer in the back seat of the vehicle the defendant was driving. He also contends that his trial counsel was constitutionally ineffective. We discern in the defendant's various claims no cause to disturb the judgments, and affirm, addressing his claims in turn.
1. Improper closing. The defendant's contention that the prosecutor's closing argument was improper is controlled in material respects by Commonwealth v. Gaeten, 15 Mass. App. Ct. 524, 527 (1983). Specifically, we rejected in Gaeten the very argument the defendant makes in the present case: that a prosecutor's use of the words "I suggest" to preface various inferences the jury might draw from the evidence improperly conveys the prosecutor's personal belief or opinion regarding the evidence. In the present case, as in Gaeten, the "statements preceded by 'I suggest' were based on the evidence or fair inferences from it." Ibid. The prosecutor's statements did not express a personal view of the credibility of any witness, or suggest that the prosecutor had independent knowledge of facts bearing on the defendant's guilt. There was no substantial risk of a miscarriage of justice.
Because the defendant did not object to the closing at trial, the claim of error is unpreserved.
2. Bottle of rum evidence. Prior to trial, the defendant moved in limine to preclude evidence of a rum bottle observed by Trooper Doyle in the back seat of the defendant's car at the time the trooper stopped him. The motion was denied by the trial judge, and the trooper was allowed to testify at trial, over the defendant's objection, about his observations of the rum bottle. There was no error.
The defendant's motion in limine rested on a claim that he suffered prejudice by reason of the fact that the bottle itself had been destroyed prior to trial. In a pretrial order on the defendant's motion to suppress, the motion judge found that the bottle had been destroyed pursuant to routine State police practice to destroy evidence after one year, and the Commonwealth had no reason to believe that the evidence was necessary because the defendant defaulted in August, 2010, and did not return to court until May, 2013. Accordingly, the motion judge concluded, the Commonwealth's destruction of the bottle was not in bad faith. Moreover, the motion judge concluded that the defendant had produced no evidence suggesting a reasonable possibility that availability of the bottle itself would produce evidence favorable to the defendant. As the Commonwealth observes, the condition of the rum bottle could not possibly have offered any evidence calling into question whether the defendant was intoxicated at the time he was arrested. Moreover, the presence of the bottle in the back seat was of minor significance on the question of the defendant's intoxication.
Of far greater significance were the trooper's observations of the defendant himself, including his thick and slurred speech, his bloodshot and glassy eyes, the strong odor of alcohol emanating from the defendant, his erratic operation of his motor vehicle, and his inability to complete successfully field sobriety tests administered by the trooper.
3. Ineffective assistance of counsel. The defendant raised a claim of ineffective assistance of counsel in a motion for a new trial that was denied by the trial judge because it was not supported by an affidavit or other evidentiary support. The defendant has not appealed from that ruling; instead he seeks to raise the claim anew, on direct appeal, still without benefit of evidentiary support. Because the defendant did not appeal from the order denying his motion for new trial, it is not properly before us and we need not consider it. In any event, on the basis of the limited record available to us on direct appeal we discern in the defendant's several claims of trial counsel's shortcomings no substantial risk that the defendant was "deprived . . . of an otherwise available, substantial ground of defence," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), or that "better work might have accomplished something material for the defense," Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Instead, it would appear on the present record "that the basic trouble from the defense standpoint was weaknesses in the facts rather than any inadequacy of counsel." Id. at 111. See note 2, supra.
Though the defendant submitted an affidavit he signed himself, it was not part of the trial record and therefore is not properly before us.
Judgments affirmed.
By the Court (Green, Vuono & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 6, 2016.