Opinion
18-P-339
09-05-2019
COMMONWEALTH v. CLAUDIO RODRIGUES.
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 the District Court, the defendant, Claudio Rodrigues, was convicted of operating a motor vehicle while under the influence of liquor. On appeal, he contends generally that the prosecutor's opening statement and closing argument improperly suggested that the arresting officers formed the opinion that the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely. We affirm.
The judge also found the defendant responsible for one count of marked lanes violation, and not responsible for speeding.
Background. The Commonwealth's evidence was as follows. On April 11, 2015, at about 10:30 P.M., Sergeant Jonathan Craven of the West Bridgewater Police Department was on routine patrol on North Main Street when he observed a truck coming toward him at a high rate of speed. The cruiser's radar unit indicated that the truck was traveling seventy-three miles per hour. The posted speed limit was forty miles per hour. The truck then crossed the double yellow line at the center of the road and came close to striking Craven's cruiser. Sergeant Craven followed the truck and observed it cross over the white fog line and strike the curb. Sergeant Craven activated the lights on his cruiser, but the driver did not pull over. He continued to drive for three-quarters of one mile and then stopped once Sergeant Craven activated the cruiser's sirens.
Sergeant Craven left his cruiser and approached the defendant who was sitting in the driver's seat. When he asked the defendant for his license, the defendant looked through his wallet for several minutes, but was unable to find his license. He gave the wallet to Sergeant Craven who retrieved the defendant's license. Sergeant Craven detected "a very overwhelming smell of alcohol[]" on the defendant's breath and saw that the defendant's eyes were bloodshot and glassy. In response to the Sergeant's questions, the defendant stated that he had been at a party in Brockton and that he had five beers. The defendant pleaded with the Sergeant, stating, "I'm not a bad person." Sergeant Craven detected an accent and asked the defendant what his primary language was. The defendant said that he spoke Portuguese, that he had been in the country for seventeen years, and that he did not need an interpreter.
Initially, the defendant told Sergeant Craven that he had one beer. He then changed it to three beers, and finally he said he had five beers.
Sergeant Craven asked the defendant to step out of the vehicle to perform field sobriety tests. The defendant was unsteady on his feet and almost stepped into oncoming traffic. After asking some background questions, Sergeant Craven asked the defendant to recite the alphabet from A to Z. The defendant indicated that he understood the test, but he was unable to recite the alphabet. He was also unable to count backwards. At this point, Sergeant Craven requested assistance from an officer who spoke Portuguese. Officer Christopher Correia, who is fluent in Portuguese, arrived at the scene shortly thereafter.
Officer Correia also saw that the defendant was unsteady and he detected "a strong odor of alcoholic beverage" coming from the defendant. Officer Correia proceeded to translate for Sergeant Craven and explained how to perform the "one leg stand" test, which the defendant failed. The defendant then failed the "walk and turn" test and was arrested. Sergeant Craven transported the defendant to the West Bridgewater Police Department for booking. Sergeant Craven testified that there was an overwhelming smell of alcohol in his cruiser.
The defendant did not testify or call any witnesses. He tried to establish through cross-examination and argument that he was not too intoxicated to drive and that he had performed poorly on the field sobriety tests because he did not understand the instructions either in English or the manner in which they were translated.
Discussion. The defendant argues that the prosecutor's opening statement and closing argument require reversal of his conviction because the prosecutor commented on the officers' opinion of the defendant's ability to drive. The defendant did not object during the opening or the closing remarks and our review is therefore limited to whether, if there was error, the statements created a substantial risk of a miscarriage of justice. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 187 (2009), citing Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 776 (2001). The defendant challenges the following remark made by the prosecutor during his opening statement: "I submit to you that based on [the defendant's] consumption of alcohol on April 11, 2015, he was unable to perform any of these field sobriety tests in a manner that the officers thought or determined in their opinion was passing grade on those tests, and the officers made the determination that he wasn't able to safely operate a motor vehicle on that day."
We agree with the defendant that the remark was improper. It is well settled that opinion testimony of a police officer that the defendant's ability to drive was diminished by his consumption of alcohol is inadmissible. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013). Here, the prosecutor indicated that the police would so opine and therefore, the prosecutor previewed inadmissible opinion testimony. The error, however did not create a substantial risk of a miscarriage of justice.
The opening statement "must be judged in light of the entire [statement], the judge's instructions to the jury, and the evidence actually introduced at trial." Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 869 (2007), quoting Commonwealth v. Jones, 439 Mass. 249, 260-261 (2003). Here, the judge instructed the jury that opening statements were not evidence before the opening statements were given and repeated this instruction during his general instructions at the conclusion of the case. See Boyajian, supra. In addition, neither police witness testified improperly. Both Sergeant Craven and Officer Correia testified about their observations and interactions with the defendant, and opined that he was intoxicated, but they did not say that the defendant's ability to drive was diminished. Lastly, given the overwhelming evidence of guilt, which included the defendant's admission that he had consumed five beers, we are confident that the remark could not possibly make a difference in the jury's conclusions. See Commonwealth v. Simpson, 434 Mass. 570, 584 (2001) (no substantial risk of miscarriage of justice because of prosecutor's improper statements where judge instructed jury that opening statements were not evidence and Commonwealth presented strong case).
We now turn to the prosecutor's closing argument. The defendant argues that the prosecutor misstated the evidence, invited the jury to draw improper inferences, and impermissibly opined on the defendant's guilt when he said:
"I would say that Sergeant Craven did everything right . . . based on what he saw, his observations during the field sobriety tests which are relatively simple tests. . . . Based on all the observations we've heard, I would say that [the defendant] was not able to safely operate a motor vehicle that evening based on his consumption of alcoholic beverages. And I would ask that you find him guilty of operating a vehicle under the influence of alcohol."
As we do with alleged improprieties in opening statements, we review alleged errors in closing arguments "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Cole, 473 Mass. 317, 333 (2015). The phrase "I would say" should be avoided, and we do not condone the challenged remark. Nevertheless, even if we were to assume error, justice did not miscarry for the same reasons that the error in the opening statement did not create a substantial risk of a miscarriage of justice. The evidence of guilt was overwhelming. The closing remarks were otherwise proper and the judge twice instructed the jury that closing arguments were not evidence. The first instruction preceded the closing arguments. The judge stated that the attorneys' closing arguments are not evidence, and that if either attorney refers to facts not in evidence, or their personal beliefs, such comments should be disregarded. This instruction was repeated during the general charge to the jury. See Commonwealth v. Wallace, 417 Mass. 126, 133 (1994) (where "judge gave strong and clear instructions . . . [which] are not challenged on appeal[,] [t]he remark, although better left unsaid, does not require reversal").
Judgment affirmed.
By the Court (Vuono, Maldonado & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: September 5, 2019.