Opinion
No. 11–P–817.
2012-08-24
COMMONWEALTH v. Dana E. CARDILLO.
Defense counsel did not object to the remark. We therefore review under the standard of substantial risk of a miscarriage of justice. At a level of a lay person's comprehension, the remark did rest accurately upon testimony by the physician on behalf of the defendant. We do not have any evidence or opinion indicating whether the common sense interpretation of the testimony conforms to the medical reality. In any event, no substantial risk is present because the judge, at five different points in his instructions, reminded the jury that closing argument does not constitute evidence, and because the totality of the evidence (the trooper's testimony adverse to the defendant and the physician's testimony favorable to him) rendered the comment insignificant. Trial defense counsel promptly objected to the remark at sidebar and moved for a mistrial. The judge denied the motion for a mistrial and gave no responsive instruction about the remark.
By the Court (Cypher, Grasso & Sikora, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury found the defendant, Dana E. Cardillo, guilty of (1) negligent operation of a motor vehicle in violation of G.L.c. 90, § 24(2)( a ); and (2) operating a motor vehicle under the influence of intoxicating liquor in violation of G.L.c. 90, § 24(1)( a )(1). On appeal the defendant argues (1) that the judge incorrectly instructed the jury on the burden of proof related to the charge of negligent operation; (2) that the judge wrongly instructed the jury on the charge of operating a vehicle under the influence of intoxicating liquor; and (3) that the prosecutor made improper prejudicial remarks during closing argument. For the following reasons, we affirm the convictions.
Background. The evidence permitted the jury to make the following findings. On August 4, 2009, the defendant attended a concert in Mansfield from about noon to 11:00 P.M. He consumed approximately three beers in the early afternoon. At the conclusion of the concert, he began to drive home to Everett. Traffic congestion at the concert and on the roads extended his driving time so that he did not reach Route 93 in Dorchester until approximately 1:00 A.M. At that time, State Trooper Joseph McLaughlin was patrolling the northbound lane of the highway. He observed the defendant's automobile straddle the center and right travel lanes for approximately one-quarter of a mile. At that point he turned on the emergency lights and the siren of his marked cruiser. The defendant continued to drive past exits 15, 16, 17, and 18 northbound. When the defendant failed to stop, the trooper pulled in front of the defendant's automobile and “piloted” it to a stop. As he passed the defendant's automobile, he aimed his spotlight into the car; the defendant did not react. By reducing his speed, the trooper forced the defendant to stop. The defendant stopped not in the breakdown lane but rather in the right travel lane. When the defendant was unable to move his car into the breakdown lane upon the trooper's instruction, the trooper moved his cruiser to a position behind the defendant's car so as to warn oncoming vehicles of the right lane obstruction.
McLaughlin observed the defendant's eyes as glassy and bloodshot, and he smelled “a strong odor of alcoholic beverage coming from his mouth.” When the trooper asked him whether he had been drinking at the concert, the defendant answered that he had “had a lot, but it was earlier.”
The defendant consented to field sobriety testing. He failed each of the three component tests: he was unable to complete a recital of the alphabet; to perform the nine-step heel-to-toe test; or to perform the one-leg standing test. The trooper observed also that the defendant was generally unsteady on his feet and that he held onto his vehicle to assist his walking. During the attempted performance of the tests, the defendant informed the trooper that he suffered from diabetes but denied that the disease was impeding him at that time. The trooper then placed the defendant under arrest. At the booking, the trooper continued to smell the odor of alcohol from the defendant's mouth.
At trial, the jury heard the following evidence from the defendant and from a physician testifying in his behalf. The physician confirmed that the defendant suffered from diabetes and that he was subject to episodes of hypoglycemia. Hypoglycemia means a low or inadequate amount of glucose in the bloodstream. The colloquial phrase “low blood sugar” often refers to the problem. Diabetics experience the problem because the varying level of insulin in their bloodstreams will disrupt the amount of blood glucose or blood sugar.
An onset or an attack of hypoglycemic or low blood sugar creates symptoms of nervousness, sweating, confusion, disorientation, and the inability to follow instructions and to perform simple tasks. The defendant's medical records confirmed that he had suffered hypoglycemic attacks. The symptoms of a hypoglycemic attack can mimic those of alcohol intoxication.
The defendant testified that, during his drive home, he “felt a little weird” and ate some candy to increase his blood sugar. Also, while he was driving, he attempted to drink some grape juice but was unable to reach it from the driver's seat. He acknowledged that he had heard the trooper's siren but that he had not pulled over because he did not see any safe place for a stop. He was feeling the effects of a hypoglycemic attack as he attempted to perform the field sobriety tests.
Analysis. 1. Instruction upon the burden of proof governing negligent operation. Negligent operation of a motor vehicle requires proof “that the defendant (1) operated a motor vehicle, (2) upon a public way,” (3) negligently so as to endanger the lives or safety of the public. Commonwealth v. Duffy, 62 Mass.App.Ct. 921, 921 (2004), citing Commonwealth v. Jones, 382 Mass. 387, 392 (1981). For that offense, the defendant's counsel submitted a written request for elaborative instructions. One request proposed that, in accordance with Commonwealth v. Merry, 453 Mass. 653, 661–662 (2009), the judge instruct the jury that they must consider whether the defendant suffered a medical condition causing him to lose control of his vehicle and thereby negating the elements of both negligence and operation. That request tracks the language of the Merry reference to the role of a medical condition. Ibid.
In the Merry case, the defendant, charged with motor vehicle homicide by negligent operation, submitted evidence of his affliction by a sudden seizure. 453 Mass. at 654, 657–658.
The defendant's second written request for an instruction went further: “The Commonwealth must prove beyond a reasonable doubt that the Defendant did not suffer a medical condition that caused him, by no fault of his own, to lose control of his vehicle. If the Commonwealth has not met this burden, you must find the Defendant Not Guilty.” The judge examined the Merry decision, allowed the request for the first instruction and delivered it, but denied the request for the second instruction on the ground that the Commonwealth retained the burden of proof beyond a reasonable doubt of negligent operation but did not assume a burden of disproof beyond a reasonable doubt of a causal medical condition. At the conclusion of the instructions, counsel for both the Commonwealth and the defendant expressed complete satisfaction.
In these circumstances, the defendant failed to preserve the claimed error. We therefore examine the claim for the presence of a substantial risk of a miscarriage of justice. Amid the total evidence of the case, we weigh (i) the strength of the Commonwealth's evidence, (ii) the nature of the error, (iii) the significance of the error, and (iv) the possibility that the omission of an objection resulted from a reasonable tactical decision. See Commonwealth v. Randolph, 438 Mass. 290, 297–298 (2002). In this instance, we do not see any error on the part of the trial judge. No decisional law required the instruction that the Commonwealth had acquired the burden of proof of an additional negative element of the absence or the ineffectuality of a medical condition. The judge followed the Merry formulation that, if the jury found an effective medical condition, that finding negated the elements of responsible negligence and operation and thereby required a finding of not guilty. The Merry case did not require him to go further and to impose an explicit burden of disproof upon the prosecution.
We need not address the very respectable proposition that, in substance, the Merry instruction accomplishes the same purpose as the proposed instruction for a burden of disproof by the Commonwealth. At least implicitly, if the jury find beyond a reasonable doubt the positive elements of negligence and responsible operation, they are finding beyond a reasonable doubt the absence of an effective medical condition.
2. Instruction upon operation under the influence. The defendant points out that the judge did not require the jury to consider the issue of a hypoglycemic attack in their deliberation of the charge of operating under the influence. He argues that, as a matter of consistent principle, that defense would apply to both charges of criminal operation.
Again, trial defense counsel did not object to the absence of that instruction. Again, then, we review under the standard of substantial risk of a miscarriage of justice. In the setting of the entire law and evidence of the trial, we do not find that risk. First, we conclude that the jury necessarily understood that the medical condition defense applied consistently both to negligent operation and to operation under the influence. Second, and independently, if the jury rejected the operation of the defense against the charge of negligent operation, then they necessarily rejected the operation of the defense against the charge of operating under the influence. See, e.g., Commonwealth v. Comtois, 399 Mass. 668, 677 (1987) (no substantial risk of a miscarriage of justice where “it does not appear likely that the jury verdict would have been different even if the judge had given the specific instruction now requested by the defendant”).
3. Prosecutor's closing remarks. The defendant charges the prosecution with two prejudicially unfair comments in closing argument. We examine each under the usual standard: (i) whether the defendant objected to the argument; (ii) whether the error concerned “collateral issues” or went to the “heart of the case”; (iii) whether the judge's instruction would have mitigated the mistake; and (iv) whether the error could have made a difference in the jury's conclusions. Commonwealth v. Kozec, 399 Mass. 514, 518 (1987). See Commonwealth v. Kelly, 417 Mass. 266, 271 (1994).
(a) Blood and sugar. The prosecutor remarked:
“[T]he doctor himself told you that there's sugar in beer. You heard the Defendant say that he drank a lot of beer, didn't we? There's a ... there's sugar in beer. And he said that hypoglycemia, what the Defendant claims he suffered from, is from a low blood sugar. But he said that he drank a lot of beer. I'm going to say his blood sugar would have been greater, not lower. Does it make sense that he suffered from hypoglycemia? Doesn't the opposite conclusion make sense?”
Defense counsel did not object to the remark. We therefore review under the standard of substantial risk of a miscarriage of justice. At a level of a lay person's comprehension, the remark did rest accurately upon testimony by the physician on behalf of the defendant. We do not have any evidence or opinion indicating whether the common sense interpretation of the testimony conforms to the medical reality. In any event, no substantial risk is present because the judge, at five different points in his instructions, reminded the jury that closing argument does not constitute evidence, and because the totality of the evidence (the trooper's testimony adverse to the defendant and the physician's testimony favorable to him) rendered the comment insignificant.
(b) “Whatever reason” comment. The prosecutor remarked also:
“Now, no matter what was causing him to drive that way, whether it was alcohol or whether, as he claims, a hypoglycemia attack, whatever was causing him to act that way, he continued to drive. [He could have left the highway by any one of several exits, but did not.] So whatever the cause was for him driving that way, he was driving negligently. He chose to drive negligently. He continued to drive negligently knowing that he was in a state of mind where he shouldn't have been out on that road. So for whatever reason he's driving that way, I ask you to find the Defendant guilty of negligent operation of a motor vehicle.”
Trial defense counsel promptly objected to the remark at sidebar and moved for a mistrial. The judge denied the motion for a mistrial and gave no responsive instruction about the remark.
We review under the standard of prejudicial error: whether we are assured that the error, if any, “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445 (1983).
Under the general standard of prejudicial error, and under the more specific criteria governing closing remarks, we are satisfied that no harmful error has occurred. The evidence entitled the prosecutor to the remark. In particular, the defendant testified that during the course of his drive home from the concert he had begun to “feel weird”; that he had consumed some candy and was attempting to drink some grape juice in order to ward off a hypoglycemic attack. In addition, the trooper testified, and the defendant did not dispute, that the defendant had continued to drive for a quarter-mile and then past four exits northward on Route 93 from Dorchester into downtown Boston as he swerved and failed to respond to the lights and siren of the trooper's cruiser. The evidence therefore permitted the jury to find that the defendant, from his experience with hypoglycemic attacks, should have appreciated the onset of one and should have safely ceased to drive by pulling to the side of the road or by leaving the highway altogether by one of the exit ramps.
Conclusion. We therefore affirm the judgments.