Opinion
09-P-1907
08-30-2011
COMMONWEALTH v. WILLIAM G. TRIBOU.
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
After consideration of the defendant's consolidated appeal from his conviction for operating under the influence of intoxicating liquor, see G. L. c. 90, § 24(1)(a)(1), and from the denial of his motion for a new trial, we affirm.
1. Booking videotape. There is no merit to the defendant's primary argument, advanced in his motion for a new trial, that his trial counsel rendered constitutionally ineffective assistance when he showed the jury portions of a videotape (video) made during the defendant's booking process. To be sure, counsel unnecessarily exposed the jury to potentially prejudicial material (references to an outstanding warrant for larceny by check and probation information, including the defendant's probation number) by failing to redact this material, to personally test the audio-visual equipment he intended to use, or when that equipment turned out not to be suitable, to familiarize himself with the judge's laptop so that he could start and stop the video as he had intended. Nevertheless, the judge, who was also the trial judge, did not abuse his discretion in concluding that counsel's performance, even if deficient, did not generate the prejudice necessary to meet the second prong of the Saferian test. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). After reviewing the booking video ourselves, it is evident that, overall, the video was very helpful to the defendant -- showing him to be lucid, responsive, and coordinated. Furthermore, we seriously question the extent to which the jury would have heard or understood the fleeting references in question.
We agree with the judge that counsel's decision to decline the offer of a curative instruction was a reasonable tactical choice to avoid calling any additional attention to the problematic references. The judge was under no obligation to insist on giving a curative instruction that counsel did not want.
2. Other arguments. There is no merit to the defendant's two remaining claims of error, neither of which was the subject of objection at trial. It has not been shown that any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002).
a. Prosecutor's closing argument. 'In analyzing whether an improper remark is prejudicial or presents a risk of a miscarriage of justice, the remark must be considered in the context of the prosecutor's entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.' Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984). In context, the challenged comments about gaps in the defendant's case merely pointed out weaknesses in the defense and did not shift the burden of proof. Furthermore, the judge gave clear and accurate instructions on the presumption of innocence and the fact that closing arguments are not evidence.
b. Officer Darmofal's testimony. Officer Darmofal's testimony that the defendant was 'operating the vehicle under the influence of alcohol' went beyond permissible opinion as to lack of sobriety, see Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994), and crossed the line into impermissible opinion regarding culpability. See Commonwealth v. Lodge, 431 Mass. 461, 467 (2000). See also Commonwealth v. Rodriguez, 456 Mass. 578, 592 (2010); Mass. G. Evid. § 704 (2011). That said, we are unpersuaded that it made any material difference to the case.
The Commonwealth presented considerable evidence of intoxication, including testimony that the defendant had remained at the Oxford Pub for about one hour, failed multiple sobriety tests, and exhibited slurred speech and glassy eyes. Furthermore, the judge's instructions made clear that it was the jury's sole and exclusive responsibility to find the facts, to determine the credibility of witnesses, and to come to a verdict by applying the evidence to the law.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Cohen & Green, JJ.),