Opinion
No. 12–P–95.
2013-01-18
COMMONWEALTH v. Gelissa OBJIO.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the Boston Municipal Court of operating under the influence of intoxicating liquor, second offense, in violation of G.L. c. 90, § 24. On appeal, the defendant argues that (1) the trial judge should have granted a mistrial after the arresting officer improperly referred to an attempt to conduct a field sobriety test, (2) the prosecutor misstated key evidence relating to the defendant's intoxication during his opening and closing statements, and (3) the defendant's trial counsel provided ineffective assistance by failing to object to the prosecutor's misstatements. We affirm.
Reference to field sobriety test. The defendant asserts, correctly, that the arresting officer's reference to an attempted field sobriety test created an inference that runs afoul of case law excluding such evidence. See Commonwealth v. McGrail, 419 Mass. 774, 779–780 (1995). She argues that this error warranted a mistrial. The Supreme Judicial Court has held that indirect testimony regarding a defendant's refusal to submit to a sobriety test constitutes reversible error only when the accused was prejudiced by the error. See Commonwealth v. Conroy, 396 Mass. 266, 269 (1985). We concur with the Commonwealth that the jury questions concerning a “blood alcohol test” do not indicate a focus on field sobriety testing
and are not probative of any prejudice caused by the officer's testimony. As we have acknowledged on prior occasions, “there is wide-spread public information and common knowledge about breathalyzer testing.” Commonwealth v. Gibson, 82 Mass.App.Ct. 834, 836 (2012), quoting from Commonwealth v. Downs, 53 Mass.App.Ct. 195, 199 (2001). Given that the contested evidence in this case concerned a field sobriety test and not a “blood alcohol test,” we do not believe the jury's questions are proof that the jury seriously considered the single unresponsive answer to an unobjectionable question in rendering its verdict. In addition, the officer's reference to the field sobriety test appears to have been inadvertent and not part of a tactical maneuver by the Commonwealth. See Commonwealth v. Conroy, supra at 269–270. In light of the overwhelming evidence that the defendant was intoxicated, see infra, we perceive no error sufficient to warrant reversal.
“Field sobriety tests are dexterity tests” conducted by law enforcement officers at the roadside to determine whether a motorist is under the influence of alcohol. Commonwealth v. McGrail, supra at 777 n. 7. The tests may include reciting the alphabet, walking heel-to-toe, touching the tip of the nose, standing on one foot, and counting backwards. See Commonwealth v. Downs, 53 Mass.App.Ct. 195, 196 (2001); Commonwealth v. Rollins, 59 Mass.App.Ct. 911, 912 (2003).
Prosecutor's mischaracterization of evidence during opening and closing statements. The defendant next asserts that the prosecutor's statement in his opening and closing statements that the defendant was “passed out” at the police station mischaracterized the evidence and constitutes reversible error. We disagree.
Because the defendant's counsel did not object at trial, our review is limited to determining whether the misstatements, if error, created a substantial risk of a miscarriage of justice. Commonwealth v. Martinez, 67 Mass.App.Ct. 788, 796 (2006). The defendant's behavior at the police station was not essential to the Commonwealth's case. There was ample evidence presented from which the jury could have found that the defendant was intoxicated prior to her arrival at the police station. Two witnesses testified that they smelled alcohol on the defendant's breath, that she was unsteady on her feet, and that she slurred her speech. A witness testified that he saw the defendant's passengers discard liquor bottles from her vehicle. Officer Lawton testified that the defendant was uncooperative and could not stand upright without assistance. The trial judge also properly instructed the jury that the opening and closing statements were not evidence. On this record, we are unable to conclude that the prosecutor's mischaracterization, if it were a mischaracterization, of the defendant's behavior during his opening and closing statements created a substantial risk of a miscarriage of justice. See Commonwealth v. Beaulieu, 79 Mass.App.Ct. 100, 105 (2011).
Ineffective assistance. The defendant faults trial counsel for failing to object to the prosecutor's opening and closing statements. “[W]hen the claim of ineffectiveness is predicated ... on counsel's failure to object to something that occurred at trial, the standard for evaluating the ineffectiveness claim is not significantly different from [that] applicable to our review of the underlying, unpreserved error; we review the claim under the substantial risk standard applicable to such unpreserved error.” Commonwealth v. Phim, 462 Mass. 470, 478 n. 7 (2012) (citations omitted). Accordingly, the defendant's claim is governed by our analysis in the preceding section.
Judgment affirmed.