Opinion
No. 12–P–75.
2013-03-1
COMMONWEALTH v. Frank S. ZUBER.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the Superior Court of negligent motor vehicle homicide while under the influence of alcohol. G.L.c. 90, § 24G( a ). The trial judge also found the defendant responsible for a marked lanes violation, and placed that charge on file. The defendant appeals, asserting that numerous errors occurred during the trial causing unfair prejudice and that the trial judge violated his due process rights by denying his motion to dismiss the civil marked lanes violation indictment. We refer to the facts as they become pertinent to the issues raised on appeal.
1. Prosecutor's opening statement. During his opening statement, the prosecutor made the following remark:
“Based upon the Defendant's negligent driving, for driving in the opposite lane and striking Mr. Donohue and doing so while he was operating under the influence of alcohol, the Grand Jury has handed down an indictment for the Defendant being guilty of—strike that—handed down the indictment for the Defendant operating a motor vehicle while under the influence of alcohol and, therefore, motor vehicle homicide while operating under the influence of alcohol” (emphasis supplied).The defendant objected and moved for a mistrial. The trial judge denied the motion for a mistrial, noting that he had already instructed the jurors with regard to the role of the grand jury and would do so in further detail in his charge.
The judge charged the jury as follows: “a Grand Jury is very different than a jury such as yourselves. The Grand Jury's function is very different. The Grand Jury simply accuses. It starts the process that ends before a jury such as yourselves but it's only a jury such as yourselves that makes the ultimate determination of guilt or innocence. So an indictment returned by a Grand Jury is an accusation only. It's not evidence of guilt. Again, the fact that the Defendant was arrested or indicted or is here on trial before you is not evidence of guilt and no inference of guilt may be drawn from those facts. The Defendant may be found guilty only based upon evidence produced in this courtroom during this trial and on no other basis.”
On appeal, the defendant argues that his motion for a mistrial should have been granted because the prosecutor's statement constitutes prejudicial error and influenced the jury's decision to return a verdict of guilty. We disagree.
The standard for determining whether a conviction must be reversed is whether any improper statement made by the prosecutor “constituted prejudicial error.” Commonwealth v. Daggett, 416 Mass. 347, 352 n. 5 (1993). The cumulative effect of all errors in the context of the entire argument, and the case as a whole, is considered in making this determination. See Commonwealth v. Smith, 387 Mass. 900, 912 (1983); Commonwealth v. Wilson, 443 Mass. 122, 130 (2004).
While it was improper for the prosecutor to refer to the grand jury indictments in the manner that he did, we do not believe any material prejudice resulted. The prosecutor's opening remarks were quite lengthy, spanning twenty-one pages of the trial transcript. Viewed in the context of his entire argument, and in light of the judge's careful instructions concerning opening remarks and the nature of the grand jury indictments, we conclude that the prosecutor's remark did not result in prejudice warranting a new trial. See Commonwealth v. Correia, 65 Mass.App.Ct. 27, 35–36 (2005).
The defendant asserts additionally that the trial judge compounded the prejudice caused by the prosecutor's remark by instructing the jury during his charge that the grand jury's role is to “accuse” the defendant. After careful review of the trial judge's entire instructions and charge, we conclude that the judge's explanation of the role of the grand jury was not misleading.
2. Prosecutor's closing statement. a. Contributory negligence. In his closing statement, the prosecutor told the jury that “[t]he Judge is going to instruct you on contributory negligence. As long as it's not the sole cause of the crash, it does not [relieve] the Defendant of his guilt.” The prosecutor's remarks were an accurate statement of the law of contributory negligence under G.L.c. 90, § 24G( a ). See Commonwealth v. Campbell, 394 Mass. 77, 87 (1985). Moreover, even if we were to find that the prosecutor's statement of the law was incomplete or misleading (which we do not), we would not find that any prejudice resulted because the Commonwealth's case against the defendant was exceedingly strong and the judge's instructions cured any deficiency in the prosecutor's statement of the law. See Commonwealth v. Correia, supra at 35–36.
The defendant also suggests that during his closing remarks, the prosecutor equated evidence of the defendant's intoxication with evidence of his negligence. The prosecutor accurately told the jury that “a person is negligent if they fail to use reasonable care.” Furthermore, the Commonwealth presented ample evidence for the jury to conclude that, independent of driving under the influence of intoxicating liquor, the defendant negligently operated his motor vehicle. The jury could have found that the defendant crossed over the center line and was driving near the fog line in the opposite lane of traffic approaching the crest of a hill where visibility was poor. The jury also could have inferred that the defendant failed to apply his brakes in the seconds before the crash. The evidence was thus sufficient for the jury to find that the defendant drove negligently. See Commonwealth v. Campbell, supra at 83.
b. Prosecutor's characterization of the evidence. The defendant asserts that the prosecutor mischaracterized the evidence during his closing statement by suggesting that he possessed personal knowledge regarding the victim's toxicology tests.
The evidence at trial established that the victim had oxycodone in his bloodstream several hours after the accident. Because the toxicology test was not completed at the time the victim was initially admitted to the hospital, it is impossible to tell whether the oxycodone was in his bloodstream at the time of the accident, or if it was later administered for pain in the emergency room. During his closing statement, the prosecutor stated: “In terms of the Defendant trying to allude to the Oxycodone, I would submit to you that there is absolutely zero evidence that [the victim] was driving with Oxycodone in his system” (emphasis supplied).
We reject the defendant's argument that the statement inferred personal knowledge on the part of the prosecution regarding the victim's toxicology testing. The prosecution's statement was drawn from, and referred to, the evidence presented during trial. We consider the remark an overstatement, but not outside the scope of fair argument. See Commonwealth v. Correia, supra at 34 (“As our appellate courts have frequently observed, ‘[w]e 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’ ”), quoting from Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).
The prosecutor's statement would have been entirely above criticism had it been slightly altered to state “There is absolutely zero evidence that the oxycodone was introduced before the accident rather than afterwards.”
3. Prosecutor appealed to the sympathies of the jury. The defendant asserts that the prosecutor elicited sympathy for the victim by improperly appealing to the jurors' passions during his opening and closing remarks. The defendant points to repeated references the prosecutor made to the victim's status as a war veteran and faults the prosecution for drawing attention to the “seriousness” of the accident and the loss of life.
The prosecutor mentioned the victim's status as a war veteran twice in fifty-five pages of opening and closing argument transcript. Contrast Commonwealth v. Rosa, 73 Mass.App.Ct. 540, 545 (2009) (where the prosecutor mentioned the victim's status as a firefighter nineteen times in eight pages of transcript). Moreover, this is not a case where the prosecutor emphasized the gruesomeness of the injuries or speculated about the amount of pain and suffering the victim endured before death. Contrast Commonwealth v. Smith, supra at 910. The prosecutor here simply made repeated references to the “seriousness” of the crime in light of the fact that the victim's life was lost. In addition, the judge properly instructed the jury that “[e]motions or sympathy for one side or the other have no place in this proceeding.” Contrast Commonwealth v. Santiago, 425 Mass. 491, 501 (1997) (holding that prosecutor's appeal to jury's sympathies warranted a new trial where the judge did not instruct the jurors specifically as to sympathy). Although we agree with the defendant that it was improper for the prosecutor to appeal to the sympathies of the jurors in his opening and closing remarks, we do not think that the prosecutor's statements rise to the level of prejudicial error in this case.
4. Unpreserved errors. The defendant asserts that certain unpreserved errors caused additional prejudice and further support reversal of his conviction. See Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967).
First, the defendant faults the prosecutor for highlighting the defendant's failure to deny responsibility for the accident. The defendant asserts that the prosecutor's argument inexorably linked the defendant's failure to deny responsibility with his decision not to testify at trial and thus created an impermissible inference of guilt in the minds of the jurors. The defendant's argument on this issue consists of conclusory statements and is unsupported by reasoned analysis or relevant authority. As such, it fails to rise to the level of adequate appellate argument as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Cameron v. Carelli, 39 Mass.App.Ct. 81, 85–86 (1995).
Second, the defendant asserts that the prosecutor improperly vouched for the credibility of the prosecution's witnesses by noting the witnesses' experience and special knowledge in diagnosing intoxication. The prosecutor simply stated that when assessing the witnesses' credibility, the jury could consider their experience in evaluating sobriety. There was no error.
The defendant lastly asserts that the prosecutor disparaged the defendant's accident reconstruction expert by asserting that he was paid for his opinion and by repeatedly calling him a “hired gun.” It is appropriate to remind the jury that an expert was retained by the defendant. See Commonwealth v. O'Brien, 377 Mass. 772, 778 (1979). But it is improper for a prosecutor to suggest that an expert witness's testimony was “bought” by a defendant or to characterize the witness as a “hired gun” where there was no evidence that he was paid more than his customary fee. Commonwealth v. Shelley, 374 Mass. 466, 469–470 (1978); Commonwealth v. O'Brien, supra at 777–778. Although the prosecutor's remarks in this case “crossed the line between appropriate argument and improper insinuation,” we conclude that it did not create a substantial risk of a miscarriage of justice. Commonwealth v. Bishop, 461 Mass. 586, 598–599 (2012) (reasoning that the jury likely employed common sense and took the prosecution's suggestions that the defendant's expert was a “hired gun” with a “grain of salt”), citing Commonwealth v. Benson, 419 Mass. 114, 120 (1994).
The prosecutor used both the phrase “hired gun” and “loaded gun” during his closing remarks and stated: “I would submit to you that he was nothing more than a hired gun. He got paid to come to a conclusion that the Defendant was not responsible.”
Defendant's motion to dismiss the civil motor vehicle violation . Finally, the defendant asserts that the trial judge erred by denying his motion to dismiss the grand jury's indictment regarding the civil marked lanes violation on the ground that the grand jury lacked authority to indict the defendant for a civil charge.
Because the defendant did not object to the filing of the marked lanes violation, this claim is not properly before us and we decline to address it. See Commonwealth v. Delgado, 367 Mass. 432, 437–438 (1975).
6. Conclusion. We note again that this was an exceedingly strong case for the Commonwealth, including the testimony of several eyewitnesses to the accident and evidence of the defendant's state of considerable inebriation. If the Commonwealth had proceeded in a more measured and careful manner, it could have avoided many of the complaints raised in this appeal.
Judgment affirmed.