Opinion
12-P-762
12-03-2014
COMMONWEALTH v. JOSEPH KAIZER.
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
The defendant appeals from his convictions of operating a motor vehicle negligently while under the influence of narcotic drugs or depressants and causing serious bodily injury, G. L. c. 90, § 24L; and child endangerment while operating under the influence, G. L. c. 90, § 24V. The defendant also argues that he was improperly fined for two civil infractions. Addressing each of the defendant's claims in turn, we affirm.
1. Testimony concerning the effect of the accident on the witness. Part of the Commonwealth's evidence consisted of the testimony of a witness who claimed that she was on foot when the defendant struck her and her son with his vehicle. On cross-examination, the defendant questioned the witness about the related civil suit. On redirect examination, the prosecutor then questioned the witness about the effects the car accident had on her and her son. The defendant contends this evidence had little or no probative value and was prejudicial because it appealed to the jury's sympathies. We disagree.
The witness testified: "It affected me emotionally. Initially I was waking up at night having nightmares. Also just thinking that, it affected me that what if I didn't survive -- for my children -- " After an objection was overruled, she went on: "[C]hildren be without a mother. That went through my mind. Would wake me up at night. Also affected my -- my son Connor. He was in a cast that didn't let him do his everyday living that he is used to. Also affected him emotionally. When we cross the street together, I have flashbacks. Something that will be a scar of my life for the remainder of my life. And I know it affects more than just me, but I can't say that."
The parties dispute whether the defendant's claim of error is preserved. We consider the claim preserved, as the defendant objected in the middle of the statement which he now argues was erroneously admitted.
"Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge." Commonwealth v. Smiley, 431 Mass. 477, 484 (2000), quoting from Commonwealth v. Valentin, 420 Mass. 263, 270 (1995). We will uphold the judge's determination absent palpable error. Ibid. Here, the prosecutor's questioning, to which the defendant opened the door, simply gave context for the monetary damages the victims had recovered -- information that had also been elicited on cross-examination. We perceive no abuse of discretion. See Commonwealth v. Arriaga, 438 Mass. 556, 577 (2003); Commonwealth v. Ridge, 455 Mass. 307, 324 (2009) (noting the Commonwealth's "right to rebut" adverse inferences developed during cross-examination).
Moreover, the judge limited any potential prejudice by restricting the scope of the redirect examination and by instructing the jury not to decide the case based on sympathy.
When the prosecutor asked how the accident affected the mother's "family," the judge sustained an objection on the basis that the question should be restricted to the mother and son, rather than the entire family. The judge also limited the examination to the nature of the two victims' injuries and the ways in which the injuries had affected them, rather than allowing the prosecutor to make broader "efforts to justify the amount of the recovery." In addition, the judge properly instructed the jury not to decide the case based on "sympathy, anger, passion, prejudice" or on "likes or dislikes for anyone involved."
2. Drug recognition expert's testimony. A police sergeant who is also a drug recognition expert examined the defendant on the day of the accident. The officer testified to his opinion that the defendant was "impaired by a CNS depressant and a narcotic analgesic" and was "unable to operate a motor vehicle safely." For the first time on appeal, the defendant challenges these statements as an improper comment on the defendant's guilt. See Commonwealth v. Hesketh, 386 Mass. 153, 161-162 (1982).
We see no error in the admission of the officer's opinion testimony as to the defendant's impairment. See, e.g., Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012) (lay witnesses may testify that defendant appeared intoxicated). However, the officer should not have been permitted to go so far as to opine that the defendant was unable to drive safely. See Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013). The improper comment notwithstanding, we perceive no substantial risk of a miscarriage of justice. See id. at 545 (similar testimony deemed nonprejudicial in light of overwhelming evidence and proper jury instructions). The jury here heard extensive testimony regarding the defendant's symptoms of impairment and the physical evidence of his drug abuse. They also heard overwhelming evidence of the defendant's unsafe operation of a vehicle, including several witnesses who observed the defendant strike two pedestrians in the light of day. The judge also instructed the jury about their right to reject or accept the expert testimony and their duty to determine the case independently.
3. Closing argument. The defendant argues, also for the first time on appeal, that the prosecutor's closing argument was improper because it disparaged the defendant's expert witnesses. Examining the challenged statements in light of the entire argument, the judge's instructions, and the evidence at trial, we conclude there was no substantial risk of a miscarriage of justice. See Commonwealth v. Miller, 457 Mass. 69, 79 (2010). While some of the comments may have been poorly phrased, the thrust of the prosecutor's argument was a legitimate challenge to the defense witnesses' credibility. See Commonwealth v. Cosme, 410 Mass. 746, 754 (1991) (comments about defense witnesses were "tasteless and improper" but did not require reversal); Commonwealth v. Simmons, 20 Mass. App. Ct. 366, 371 (1985) ("[T]he prosecutor had a valid point to make but simply expressed the point in an inappropriate manner"). The fact that the defendant did not object provides "some indication that the tone, manner, and substance" of the argument was not unfairly prejudicial. Commonwealth v. Toro, 395 Mass. 354, 360 (1985). Furthermore, the judge repeatedly instructed the jury that closing arguments are not evidence and that they were the sole judges of witness credibility.
The defendant objects to the following statements: "[A]n ancient philosopher saying is what [sic] wise men speak because they have something to say, and fools speak because they feel that they have to say something. And what I want to talk about is the defense witnesses that were presented in this case." "[B]oth witnesses that testified for the defense . . . they said things on cross-examination that they wouldn't have otherwise if I didn't ask them directly." "[One of the defense witnesses] isn't giving you the truth. This witness is trying to win a case because, in fact, she's a lawyer."
The prosecutor's statement that a defense witness's testimony "doesn't make any sense to me" was a fleeting reference and created no substantial risk of a miscarriage of justice. See Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 173 (2001) (certain erroneous closing remarks "are de minimis and do not individually or cumulatively suggest a substantial risk of a miscarriage of justice"). We likewise reject the defendant's contention that any errors in combination created a substantial risk of a miscarriage of justice.
4. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was sufficient to support the jury's finding that the mother sustained a "serious bodily injury," defined as a "substantial impairment of some bodily function for a substantial period of time." See Commonwealth v. Marinho, 464 Mass. 115, 118 (2013), and cases cited (both temporary vision loss and broken jaw qualify as serious bodily injuries within meaning of assault and battery statute). The mother's injuries included a head laceration which required sutures and resulted in a permanent bald spot, a left wrist fracture, a major contusion on the left leg which she described as "extremely swollen" and "very painful," and road rash on her knees and back. She was initially unable to walk. She was hospitalized overnight, and was out of work for more than several weeks. Her condition required physical therapy. She also testified that the accident affected her daily life because it required her to cease various athletic activities.
General Laws c. 90, § 24L(1), prohibits operation of a motor vehicle on a public way while under the influence of, inter alia, narcotic drugs or depressants that "causes serious bodily injury." "For the purposes of this section 'serious bodily injury' shall mean bodily injury which creates a substantial risk of death or which involves either total disability or the loss or substantial impairment of some bodily function for a substantial period of time" (emphasis added). G. L. c. 90, § 24L(3), inserted by St. 1986, c. 620, § 17.
We further conclude there was sufficient evidence to support the jury's finding of child endangerment. While there were no direct observations of the defendant's eleven year old daughter inside the car at the time of the accident, the circumstantial evidence that she was a passenger was substantial. See Commonwealth v. Arce, 467 Mass. 329, 333 (2014). The police observed the young child at the scene immediately following the accident. The jury could have easily inferred that the daughter's presence at the scene contemporaneously with the accident could only have been as a result of her riding in the vehicle with the defendant. See ibid., quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989) (an inference "need only be reasonable and possible; it need not be necessary or inescapable").
5. Civil infractions. After the trial, the judge found the defendant responsible for two civil traffic infractions. The defendant argues these infractions are not criminal offenses but offers no valid authority for why the judge would lack authority to address them. We see no error. See Commonwealth v. Pelletier, 449 Mass. 392, 393 (2007) (civil infractions included in criminal complaint for "procedural purposes only").
The judge imposed a $100 fine for a marked lanes violation, G. L. c. 89, § 4A; and a $35 fine for a failure to slow, G. L. c. 90, § 14.
The defendant also claims the adjudication of the civil infractions violated G. L. c. 90C, § 3(C). As the Commonwealth sets forth in its brief in footnote 26 at pages 47-48, the provisions concerning the clerk-magistrate of the District Court are inapplicable in a Superior Court proceeding. The defendant also claims violation of G. L. c. 90C, § 3(C)(2), which allows violators to request a noncriminal hearing conducted by the judge who presides over the criminal trial. However, the judge did hear argument regarding the defendant's civil infractions.
Judgments affirmed.
Findings of responsible affirmed.
By the Court (Fecteau, Sullivan & Maldonado, JJ.),
The panel is listed in order of seniority.
Clerk Entered: December 3, 2014.