Opinion
No. 12–P–460.
2013-03-11
COMMONWEALTH v. Roger A. BOUDREAU, Jr.
By the Court, (RAPOZA, C.J., KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of operating a motor vehicle while under the influence of alcohol, alleging that the prosecutor's improper closing argument resulted in a substantial risk of a miscarriage of justice. We affirm.
Background. At approximately 1:00 A.M. on May 31, 2009, Trooper Harold (Harold) stopped the defendant's vehicle after he observed the vehicle make an illegal u-turn. As he spoke with the defendant, who was the operator of the vehicle, he noticed that there was a strong odor of alcohol coming from the vehicle and that the defendant's eyes were bloodshot. Harold asked the defendant to perform some field sobriety tests: the defendant failed the tests and was then arrested. At the State police barracks, the defendant agreed to take a chemical breath test. The result of the test was a reading of .11.
At trial, after the Commonwealth's case, the defendant testified. His testimony differed with Harold's account of the field sobriety tests and disputed the accuracy of the breath test. The defendant also called Joanne Sampson as an expert witness. She testified that she has a Ph.D. in toxicology and physiology. She stated that she had reviewed the police report, listened to the trial testimony, and that she was familiar with the machine used for the breath test. After further scientific testimony, she opined that at 1:00 A.M. the defendant's actual blood alcohol reading would have been below .08. She further testified that she was being paid for her appearance and, on cross-examination, she stated that in the past ten years she had testified for the defense approximately 100 times and never for the prosecution. In his closing argument, the prosecutor stated: “In terms of what Doctor Sampson had to say today, I mean what can we make of her, what do I suggest you should make of her? I would suggest that she's a hired gun, okay.” The prosecutor went on further to say, “[s]o, she's paid to come in here and give you a presentation that favors the defendant, and she gets her money in advance, and she gives the questions that she wants asked to her to the defense counsel, who asked those questions to her and she gives you her (indiscernible) response.” Not content to leave the issue of Dr. Sampson's testimony, the prosecutor continued: “I'd suggest (Dr. Sampson's) opinion is based not on any scientific data, but it's based on the money she's getting paid to testify. So I'd ask you to discount her hired gun testimony....”
The case was submitted to the jury on two different theories. The first theory, under which the defendant was convicted, was that the defendant operated a motor vehicle while under the influence of intoxicating liquor. The second theory submitted to the jury was that the defendant operated a motor vehicle while having a blood alcohol level of .08 or greater. The defendant was acquitted under this theory.
Discussion. The Commonwealth concedes, as it must, that the prosecutor's statements relative to Dr. Sampson's testimony were improper. See Commonwealth v. O'Brien, 377 Mass. 772, 778 (1979). Because there was no objection to the improper argument, we must consider whether it resulted in a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297–298 (2002). While we strongly disapprove of the type of language employed by the prosecutor in this case, we conclude that the judge's carefully worded jury instructions corrected the impact of the improper argument.
In his jury instructions, the judge went beyond the model jury instructions on the description of evidence, and made it clear that the evidence is limited to the testimony of the witnesses and the exhibits.
Finally, we note that the jury acquitted the defendant of the charge based upon the theory that the defendant was operating a motor vehicle while having a blood alcohol level of .08 or greater. Thus, it is clear that the jury rejected the prosecutor's improper argument relative to Dr. Sampson's testimony and, by implication, credited her testimony. Because we conclude that the prosecutor's improper argument did not affect the jury's verdict, it follows that it did not constitute a substantial risk of a miscarriage of justice.
Judgment affirmed.