Opinion
19-P-313
07-15-2020
COMMONWEALTH v. JUVENTINO A. BATISTA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Juventino A. Batista, appeals from his conviction of operating a motor vehicle on a public way while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24 (1) (a) (1). He argues that a new trial is warranted because the prosecutor's opening statement and closing argument created a substantial risk of a miscarriage of justice. We affirm.
Background. We describe the underlying facts of the conviction to contextualize the prosecutor's opening statement and closing argument. The defendant's niece, Iris Hernandez, testified that she attended two Thanksgiving parties with the defendant on November 23, 2017. The defendant picked her up and drove them to each party. At the first party, she recalled seeing the defendant with a beer in his hand. They were at that party for an hour and one-half to two hours before leaving for the second party. At the second party, they also stayed for an hour and one-half to two hours. Hernandez, who admitted to consuming alcohol at each party, testified that she did not observe the defendant having difficulty operating his car from one location to the other or engaging in conversation. After leaving the second party, the defendant, while driving, got into an accident with a parked car.
The responding police officer first observed the defendant and Hernandez while both were in the back of an ambulance still at the scene. Hernandez was injured and laying down on a gurney while the defendant was standing up in the ambulance. As the officer was speaking to the defendant, he detected a mild smell of alcohol. He also observed that the defendant's eyes were glossy and bloodshot. After the defendant told the officer that he was not injured, the officer asked him to retrieve his driver's license. The defendant stumbled as he exited the ambulance. The officer then asked the defendant to perform some field sobriety tests. The defendant agreed.
Two tests were administered. The first, the "nine step walk and turn" test, proved difficult for the defendant. He could not complete the test, failing to make proper "heel-to-toe" movements, and "failed completely" given the opportunity to attempt the test a second time. The defendant also failed the second field sobriety test, the "one-legged stand" test. While attempting that test the defendant could not keep one leg raised for more than three seconds, far short of the thirty seconds required for a successful performance. As a result, the officer informed the defendant he was being arrested for suspicion of operating under the influence and the defendant replied that he had only consumed a few drinks.
In the Commonwealth's opening statement at trial, the prosecutor stated that "in this particular case, there was a bad decision made by the defendant . . . , and that bad decision required a consequence as a result." The prosecutor, in an attempt to summarize the arresting officer's testimony, also stated that "[the officer] formed the opinion that this particular defendant was drunk." Notably, the defendant did not object to these statements.
During closing argument, the prosecutor stated, "[O]ut of all of these observations and all of this investigative work, given the officer's training and experience, at this point and the observations that he made, he formed the opinion that this defendant was drunk . . . he puts all of the puzzle pieces together, and he realizes, this individual is drunk." Later in his closing, the prosecutor argued, "This defendant didn't have to be black out drunk to be impaired. He didn't have to be black out drunk to not be able to operate a motor vehicle safely, and [t]hat's evident by the fact that he crashed his motor vehicle into a still car that was parked on a side of the road." The prosecutor later seemingly inadvertently misstated the evidence, arguing that Hernandez had observed the defendant with a drink in his hand at both parties, when the testimony was that she only saw him with a drink at the first party. The prosecutor also argued that Hernandez did not see the defendant eating any food at the second party when the record reflects she could not recall whether she saw him eating at the second party or not. Again, the defendant did not object to these statements or any portion of the closing.
Discussion. When reviewing a prosecutor's opening statement and closing argument, we consider them in their entirety "and in light of the judge's instruction to the jury, and the evidence at trial." Commonwealth v. Barbosa, 477 Mass. 658, 670 (2017). Because the defendant did not object, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016). The defendant specifically challenges: (1) the comments made during the prosecutor's opening statement that the defendant made a bad decision requiring a "consequence"; (2) the prosecutor's comments that the defendant was "drunk"; (3) the prosecutor's comments during his closing argument that Hernandez had seen the defendant with a drink at the second party; and (4) the prosecutor's comments regarding the testifying officer's experience, such that the comments elevated his testimony to that of an expert witness. The defendant also argues that the cumulative impact of all of the above was enough to overwhelm the jury. None of the arguments are availing.
The prosecutor's comments in his opening statement that the defendant made a bad decision requiring a "consequence" furnishes no ground for reversal. See Commonwealth v. Qualls, 440 Mass. 576, 586 (2003). The comment was better left unsaid, but reads most naturally as a reference to the defendant's own behavior. See Commonwealth v. Oliviera, 74 Mass. App. Ct. 49, 56 (2009). It does not attempt to weigh in on the consequences of the jury's decision, as the defendant alleges. Compare Commonwealth v. Smith, 387 Mass. 900, 910-911 (1983).
We note that the Massachusetts Guide to Evidence § 1113 (2019) sets forth a two-page summary guide to what is and is not permissible in closing argument with a supporting note section containing annotation to precedent.
Next, no miscarriage of justice resulted from the Commonwealth's comments on the defendant's level of intoxication. It is strictly true that the prosecutor's characterization that the officer had determined the defendant was "drunk" was not supported by the record. However, that the officer concluded the defendant was impaired by alcohol was a fair inference from the evidence, where the officer testified to his observations of the defendant's glossy, bloodshot eyes and his failure to complete sobriety tests, and where the officer arrested the defendant immediately thereafter. See Commonwealth v. Rakes, 478 Mass. 22, 45 (2017) ("The inferences for which counsel argues need not be necessary, or inescapable; they only need be reasonable and possible"). Because the prosecutor's misstatement was cumulative of the conclusion that the officer made when he arrested the defendant and the judge instructed the jury that the arguments of counsel are not evidence, there was no risk of a miscarriage of justice. See Commonwealth v. Fruchtman, 418 Mass. 8, 18 (1994).
While a prosecutor is permitted to "argu[e] 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), he does not have the freedom to portray the evidence inaccurately.
There was also no substantial risk of a miscarriage of justice regarding the Commonwealth's misstatement of Hernandez's testimony. Hernandez's testimony regarding seeing a beer in the defendant's hand at the first party but not the second carries diminished weight given the defendant admitted to the arresting officer that he consumed a "couple" of drinks. We note that the jury were instructed to rely on their memory of the evidence rather than any representations of counsel.
There was also no error in the prosecutor's reference to the officer's training and experience. "[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole" are not valid grounds for reversal. Commonwealth v. Wilson, 427 Mass. 336, 350 (1998), quoting Commonwealth v. Sanna, 424 Mass. 92, 107 (1997). We reject the defendant's assertion that referencing the officer's training and experience somehow impressed upon the jury that the officer was testifying as an expert witness. This is particularly true where, as here, the officer never testified directly as to whether he believed the defendant was intoxicated or that any such intoxication impaired the defendant's ability to drive safely. Instead, the inference that the defendant was inebriated is plain from the evidence. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013) ("[A]n opinion regarding a defendant's sobriety is a lay opinion, not an expert opinion").
During his closing argument, the prosecutor stated that the testifying officer's opinion that the defendant was drunk "was, in part, the product of his training and experience."
Finally, we are not persuaded that even if there was error, any cumulative effect of these alleged errors warrants a new trial. The Commonwealth's case against the defendant was strong. The jury could have reasonably found that the defendant, who had driven into a parked car, had glossy, bloodshot eyes, failed the field sobriety tests, smelled of alcohol, and admitted to consuming a "couple" of drinks, was impaired by alcohol at the time he operated the vehicle he was driving. That, coupled with the fact that the judge carefully instructed the jury that opening statements and closing arguments were not evidence and that in reaching their decision they must rely on their own memory of the evidence rather than any contrary arguments from counsel, satisfies us that none of the purported errors were so offensive as to create a substantial risk of a miscarriage of justice. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 236-237 (2013).
Judgment affirmed.
By the Court (Henry, Desmond & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 15, 2020.