Opinion
14-P-853
01-29-2016
COMMONWEALTH v. MARLA WRIGHT.
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
The defendant, Marla Wright, appeals from several judgments stemming from an automobile collision that resulted in the death of the other vehicle's driver. She raises several issues on appeal. We affirm.
After a trial by jury, the defendant was convicted of motor vehicle homicide, leaving the scene of an accident after causing personal injury and death, operating a motor vehicle and going away after causing injury to a person, and intimidation of a witness (misleading).
Discussion. 1. Misleading a police officer. The defendant visited the police station the day after the collision and informed the desk officer, Edward Spencer, that she had been in an accident the night before. She showed Spencer the damage to her car and reported to him that the other driver, not she, fled the scene. The officer prepared a report and gave her a copy. In it, the officer noted the wrong accident date, which the defendant left uncorrected. The defendant concedes she lied to Spencer, but relying on G. L. c. 268, § 13B(1)(c)(i), which prohibits misleading a witness or potential witness at any stage of a criminal investigation or proceeding, she claims that Spencer cannot be the misled target, as he was neither a witness nor a potential witness to the criminal investigation. The defendant's reliance on G. L. c. 268, § 13B(1)(c)(i), is misplaced, as she was charged and convicted under § 13B(1)(c)(iii), which only requires that the misled person be one of the enumerated persons. Police officers are specifically enumerated. Therefore, the Commonwealth's proof that Spencer was a police officer sufficiently satisfied this element of the crime.
The relevant portion of G. L. c. 268, § 13B, as amended by St. 2010, c. 256, § 120, reads:
"(1) Whoever, directly or indirectly, willfully . . . (c) misleads, intimidates or harasses another person who is: (i) a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type; . . . (iii) a judge, juror, grand juror, prosecutor, [or] police officer . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished."
The defendant also contends that, while she does not dispute that she lied to Spencer, the Commonwealth did not establish she did so with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere with a criminal investigation. We disagree. Contrary to the defendant's contention, "such specific intent" may be readily inferred from her "affirmative misrepresentations, plainly and demonstrably false, to law enforcement authorities." Commonwealth v. Morse, 468 Mass. 360, 373 (2014). Even if the defendant filed the false report with the intent to assuage her family members and her own conscience -- as she asserts on appeal -- that contention does not negate the inculpatory inference the jury could draw from the evidence. Specifically, that in reporting that the other driver fled the scene, the defendant sought to deflect blame from herself and place it onto another. See Commonwealth v. Figueroa, 464 Mass. 365, 373 (2013).
2. Prearrest silence. The defendant asserts for the first time on appeal that the prosecutor improperly cast the defendant as morally deficient and appealed to the jury's emotions when she urged the jury to convict on the basis that the defendant did not seek out the police soon after the accident to report her version of the incident. This contention fails because on the leaving the scene charge, the Commonwealth was required to prove that the defendant left the accident scene without stopping and making her name and other identifying information known, which included eliminating the possibility that the defendant reported the incident "at or near the place and time of [the accident]." Commonwealth v. Donohue, 41 Mass. App. Ct. 91, 94 (1996), quoting from Commonwealth v. Horsfall, 213 Mass. 232, 236 (1913).
Furthermore, to the extent the defendant asserts the prosecutor's comments exceeded the bounds of proper comment, we disagree. "We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Moreover, even if we were to assume, without deciding, that some of the prosecutor's comments crossed the line, they did not create a substantial risk of a miscarriage of justice. The judge forcefully instructed the jury that the opening statements and the closing arguments of counsel are not evidence, that the jury must decide the case solely on the facts and the evidence, and that the verdict must not rest on emotion and sympathy. See Commonwealth v. Taylor, 455 Mass. 372, 385 (2009) (considering whether jury instructions "may have mitigated the mistake").
3. Opinion testimony. The defendant contends the prosecutor improperly attempted to elicit police testimony that the defendant caused the accident and that the victim's intoxication was not a significant factor. According to the defendant, even though the judge sustained these objections, the jury nevertheless were left with the impression that the defendant was hiding from them the fact that the police believed the defendant was guilty. We disagree. The judge gave a strong curative instruction and reiterated in his final instructions that the jury alone must decide the case based solely on the evidence. He explained in detail what evidence is and what it is not, including that questions are not evidence. The judge also explained that lawyers had a duty to object and, furthermore, that they are not to hold a lawyer's objections against the party she represents. We assume the jury followed these instructions and conclude there was no error. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997).
Finally, we are also unpersuaded by the defendant's claim that the police improperly opined that the defendant's operation into the lane of oncoming traffic was unsafe and posed a danger to public safety, as it was both obvious from other properly presented evidence and essentially conceded by the defense.
Judgments affirmed.
By the Court (Vuono, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 29, 2016.