Opinion
18-P-1374
03-13-2020
COMMONWEALTH v. Geoffrey MATTHEWS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI), G. L. c. 90, § 24 (1) (a ) (1). On appeal, the defendant argues that certain comments made by the prosecutor in his opening statement and closing argument were unduly prejudicial. He also argues that the evidence was insufficient to prove that his ability to operate a motor vehicle safely was impaired by the consumption of alcohol.
The defendant also was found responsible for speeding, G. L. c. 90, § 18.
Background. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At approximately 1:40 A.M. , on May 24, 2015, Lieutenant Christopher Flanagan of the Norwood Police Department was on patrol on Route 1 in Norwood when he observed the car in front of him drift between the fog line and the center of the road and abruptly change lanes. Lieutenant Flanagan followed the vehicle and activated the overhead lights of his cruiser when the driver, later identified as the defendant, accelerated to sixty miles per hour. The posted speed limit was forty-five miles per hour. The defendant slowed down, but did not pull over until Lieutenant Flanagan activated the cruiser's siren. Lieutenant Flanagan approached the car. He detected an odor of alcohol and observed that the defendant's eyes were glassy. In response to Lieutenant Flanagan's question, the defendant admitted that he had had one beer. The defendant did not have his driver's license or vehicle registration with him. Lieutenant Flanagan then conducted a number of field sobriety tests. The defendant's performance was inconsistent, and Lieutenant Flanagan eventually concluded that the defendant was under the influence of alcohol. The defendant was arrested and transported to the police station.
Discussion. 1. Sufficiency of evidence. To sustain a conviction of OUI, the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol. See G. L. c. 90, § 24 (1) (a ) (1). Only the third element is in dispute. "To establish that the defendant was under the influence, the Commonwealth must prove a diminished capacity to operate safely." Commonwealth v. AdonSoto, 475 Mass. 497, 510 (2016).
At trial, the defendant stipulated that he had been operating a motor vehicle on a public way.
The Commonwealth presented sufficient evidence of diminished capacity. To begin with, there was evidence that the defendant drove unsafely. In addition to drifting within the lane of traffic, he drove fifteen miles per hour over the posted speed limit. Furthermore, Lieutenant Flanagan testified that the defendant had glassy eyes and that he detected an odor of alcohol. These observations support a finding of impaired driving. See AdonSoto, 475 Mass. at 510 (citing cases). The defendant also performed poorly on some of the field sobriety tests. Although the defendant emphasizes that he performed some of the tests well, the assessment of the weight of this evidence was properly left for the jury.
2. The prosecutor's remarks. The defendant contends that the prosecutor misstated what the evidence would prove when he said in his opening statements that the defendant admitted to having "at least one beer." The defendant's objection to the comment was overruled. Although it is true that the evidence was that the defendant admitted to having consumed one beer, we conclude that in view of the context of the remark and the judge's instruction to the jury that opening statements are not evidence, the misstatement was not so prejudicial as to warrant reversal of the defendant's conviction. See Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). See also Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 869 (2007).
We similarly conclude that the prosecutor's remarks in his closing argument, which implied that the defendant had more than one beer, does not warrant reversal. The prosecutor said:
"[T]he officer ... asks the defendant whether or not he consumed alcohol, and the testimony was the defendant stated he had a beer.
"I would argue, and under the circumstances take your common knowledge of a person in that situation, late at night, you've been drinking, your response to a police officer is I had one beer. And I would argue that the consumption of some alcohol would be a credible response, but the determination of exactly how much alcohol a person consumes, I would leave to you as the finder of fact whether or not the amount represented was accurate."
The defendant did not object, and even if we were to assume error, there was no substantial risk of miscarriage of justice. See Commonwealth v. Womack, 457 Mass. 268, 273 (2010). The jury could reasonably infer that the defendant, who had glassy eyes and could not successfully complete all the field sobriety tests, had consumed more than one beer. In addition, the judge correctly instructed the jury that closing arguments are not evidence. Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 236-237 (2013).
Also, we see no error in the prosecutor's statements regarding the officer having followed the defendant for about one-half mile, the defendant not having pulled over in a fluid manner, and the officer having escorted the defendant to the back of his vehicle.
--------
Judgment affirmed.