Opinion
11-P-912
05-08-2012
COMMONWEALTH, v. DEREK SMITH.
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 conviction of operating under the influence of liquor, third offense. We affirm.
A jury convicted the defendant of operating under the influence. The same judge who presided over the jury trial heard the subsequent offense portion of the complaint jury-waived.
1. BOLO. Although the arresting officer's testimony about the 'be on the lookout' broadcast (BOLO) exceeded the parameters of the judge's order on the defendant's motion in limine, the judge did not abuse her discretion in declining to declare a mistrial. The references to the BOLO were not prejudicial, as they were largely cumulative of other properly admitted evidence of the defendant's erratic driving. See, e.g., Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 680 (2011). Furthermore, the judge responded by striking the first such question and answer, instructing the jury to disregard the exchange, sustaining another objection, and striking a subsequent errant phrase. We assume that the jury followed her instructions and did not consider anything that was struck from the record. See Commonwealth v. Pope, 406 Mass 581, 588 (1990).
2. Closing argument. Because the defendant's claims concerning the prosecutor's closing argument were not preserved below, we review only to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We are unpersuaded that the remarks, viewed in the context of the argument as a whole, invited burden shifting, were unsupported by the evidence, or were otherwise problematic. In any event, there was no substantial risk that the jury would have been led astray, given the judge's clear instructions about the function of closing argument, the jury's role as fact finder, and the Commonwealth's unchanging burden of proof. See, e.g., Commonwealth v. Cruz, 456 Mass. 741, 752-753 (2010), and cases cited.
3. Admission of certified docket sheets. In accordance with Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 4-7 (2010), there is no merit to the defendant's argument, raised for the first time on appeal, that his right of confrontation was violated by the admission of certified court records during the subsequent offense trial without affording him the opportunity for cross-examination.
4. Sufficiency of the evidence. There was sufficient proof that the defendant was the same Derek Smith who previously had been convicted on two occasions of driving under the influence. While mere identity of name is insufficient, Commonwealth v. Koney, 421 Mass. 295, 302 (1995), here, there was additional information in the form of certified records of the defendant's prior convictions and the testimony of Trooper Kessel. See Commonwealth v. Maloney, 447 Mass. 577, 588-589 (2006). The records of the prior convictions contained the defendant's name and date of birth. They also contained an address that was located in the same town identified by the defendant as his place of residence at the time of his arrest on the present charge.
Records of one prior conviction also contained a Social Security number and information about the defendant's physical appearance. Trooper Kessel testified that when he arrested the defendant on the present charge, the defendant presented a driver's license with the name Derek Smith, and gave answers to booking questions about his address, Social Security number, and date of birth. Those answers correlated with the records of his prior convictions. Although the officer's memory of the defendant's Social Security number was off by two digits, and there were some discrepancies between the description of the defendant's physical characteristics in the 2009 booking report and the 1996 court records, viewed in the light most favorable to the Commonwealth, the evidence sufficed to establish that the defendant had two prior convictions for operating under the influence. See Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 912 & n.6 (2009).
The defendant's remaining argument -- that the judge lacked proof that the defendant was the same individual found guilty by the jury in the preceding phase over which the judge presided -- is patently without merit and requires no discussion.
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Judgment affirmed.
By the Court (Cohen, Green & Graham, JJ.),