Opinion
14-P-970
10-02-2015
COMMONWEALTH v. TERRENCE F. EBLING, JR.
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
Terrence F. Ebling, Jr., was charged with leaving the scene of a property damage accident and operating with a suspended license (subsequent offense) after he crashed into another vehicle on August 28, 2013, while driving a borrowed Volkswagen. At a jury trial, after the close of the Commonwealth's evidence and after the close of all of the evidence, the defendant moved for required findings of not guilty on these counts, but the trial judge denied his motions. The defendant ultimately was convicted of both crimes. He then pleaded guilty to the subsequent offense portion of the operating with a suspended license charge. He now appeals his convictions claiming (1) that there was insufficient evidence to prove that he was the driver of the Volkswagen at the time of the accident, and (2) that the prosecutor made improper statements during his closing argument that prejudiced the defendant's case. We affirm.
The defendant also was charged with operating a motor vehicle while under the influence (OUI), third offense, but was acquitted of the OUI offense.
A. Sufficiency of the evidence. In reviewing the sufficiency of the evidence in a criminal case "we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). The Commonwealth need not "prove that the defendant had the exclusive opportunity to commit the crimes, and while the inferences need not be inescapable or necessary, . . . the evidence must be such as to convince a jury beyond a reasonable doubt that the defendant, and no one else, committed the offences charged." Commonwealth v. Shea, 324 Mass. 710, 713 (1949) (citations omitted).
Here the Commonwealth produced sufficient evidence for the jury to find the defendant guilty of both charges. For example, there was testimony that the defendant borrowed the Volkswagen and the only key from the owner's father, Franklin Moody, approximately one hour before the accident. The defendant did not return the key on the day of the accident. Moody learned about the accident soon after it occurred, and he provided the defendant's first name and a description of the defendant's clothes to the police, reporting that he had just loaned the defendant the Volkswagen. The police located the defendant at his apartment complex, just one mile or less from the accident scene, within forty-five minutes of the accident. One of the responding officers testified that he had observed abrasions on the defendant's arms and that the defendant matched an eyewitness's general description of the Volkswagen's driver.
The defendant was sweating profusely when police questioned him, and he proceeded to offer three inconsistent stories about his whereabouts that day. Providing false statements to the officers can be interpreted as consciousness of guilt. See Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014). The evidence of the defendant's consciousness of guilt, together with the other evidence presented at trial, was sufficient to establish his guilt. See Commonwealth v. Swartz, 343 Mass. 709, 713 (1962), and cases cited.
B. Prosecutor's closing argument. During the prosecutor's closing argument he stated that defense counsel had asked the jury "to look for doubt, to search it out, to try to find it, moreover, to manufacture it." In total, the prosecutor made four references to manufacturing doubt during his closing argument. Defense counsel timely objected, "preserv[ing] the defendant's right of appeal." Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005), citing Commonwealth v. Cancel, 394 Mass. 567, 574 (1985). Defense counsel claimed that the phrase "manufacturing doubt" impermissibly shifted the evidentiary burden to the defendant to prove his innocence. The trial judge overruled the objection. Defense counsel moved for a mistrial, which the judge denied. The trial judge instructed on the burden of proof, closing arguments, and reasonable doubt, explaining that the law does not require the defendant to present evidence or to prove anything. There were no objections to the judge's instructions.
The prosecutor made the following statements in his closing argument:
"Sometimes it's just straight. Sometimes there isn't a twist ending. You may be a fan of legal shows, legal thrillers. Any attorney that tells you that they don't like them is lying. They are excellent. They are a lot of fun. You get to guess what the surprise ending is going to be because you know there is going to be a twist. That's what keeps your attention. There is no twist. Terrence Ebling's twin brother that he never knew at birth is not going to come through those doors plotting that he was going to set him up for this crime, waiting for thirty years because he never had a brotherly love. It's not going to happen. Sometimes it's easy as A leads to B, leads to C. The green Volkswagen was Lasheika Moody's. It was stored at her father's house, Franklin Moody, who had the only keys. Franklin Moody gave those keys to Terrence Ebling, his sister's boyfriend. A, B, to C. With all due respect to defense counsel who is an excellent attorney did a great job advocating, he's asking you to look for doubt, to search it out, to try to find it, moreover, to manufacture it. He wants you to look up here when it's right in front of you. . . .
"So the question you have to ask yourself is, why would Mr. Moody lie about all this? First of all, does he have a surplus of white, bald men friends in their mid-thirties that he could pass the blame on? Is somebody closer to him than Terrence Ebling that he doesn't want to get that person in trouble, he wants to get Terrence Ebling in trouble? It doesn't add up or make sense. It's about manufacturing doubt, looking for a twist ending that isn't there. That's what this case is about. . . .
"But why would [Franklin Moody] put the police down the wrong direction? There was major damage that was done to his daughter's car? Remember, two cars were totaled that day. Thomas Marley who, as you heard from Lasheika Moody, is suing her insurance company and Lasheika Moody. That's the one whose insurance went up. Why would her own father make it up to protect this anonymous white, bald person that could have been the driver instead of just telling the truth? When he was asked if he had an open, suspended license, he said, 'Yes.' When he was asked did he tell his daughter about him driving the car, he said, 'No,' he never told her. Did he come off believable? Did it look like he was hiding anything? Not manufacturing doubt . . . ." (Emphases supplied.)
In Commonwealth v. Weaver, the Supreme Judicial Court ruled that when a prosecutor alleged during closing arguments that defense counsel's role was to "create doubts in [the] minds" of the jurors, such behavior was "highly improper," but it could be cured by appropriate instructions to the jury. 400 Mass. 612, 615-616 (1987). Although there are contextual differences in the prosecution's arguments in Weaver versus the instant case, with the prosecutor here stressing the specific facts rather than the role of defense counsel, because of the similarity of the phrases "create doubts" and "manufacturing doubt," we will assume without deciding that the prosecutor's comments here were improper. See ibid. We therefore consider whether the judge's instructions were nonetheless curative as in Weaver. See id. at 616. The trial judge in the instant case gave appropriate jury instructions about the nonevidentiary nature of closing arguments and the parties' evidentiary burdens at trial. Upon "consider[ation of] the prosecutor's entire argument, as well as the judge's instructions to the jury and the evidence presented at trial," and further noting defense counsel's failure to object to the jury instructions, we hold that the judge's instructions were sufficient to cure any prejudice caused by the prosecutor's statements. Ibid., and cases cited.
In reaching our holding, we take note that although defense counsel renewed his motion for a mistrial in response to the judge's jury instruction on reasonable doubt, claiming that some words used were too similar to the phrase "manufacturing doubt," counsel ultimately said that he was satisfied with the jury instructions and that the reasonable doubt instruction was correct. Furthermore, defense counsel "did not object [to the instructions,] and there was no request for a further instruction from the judge, an indication from experienced trial counsel that the judge's response was appropriate to mitigate any prejudice." Commonwealth v. Evans, 439 Mass. 184, 194 (2003), citing Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
Judgments affirmed.
By the Court (Kafker, C.J., Trainor & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 2, 2015.