Opinion
11-P-90
03-27-2012
COMMONWEALTH v. EMANUEL M. CARDOSO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of operating a motor vehicle while under the influence of a narcotic drug. See G. L. c. 90, § 24(1)(a)(1). The substantive issue in this case is controlled in material respects by the reasoning of Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 172 (2003). '[T]he defendant's erratic behavior and appearance, the facts surrounding the accident itself, and [his admission of use] of [marijuana] . . . permitted the inference that the defendant's capacity to operate was impaired by a narcotic drug.' Ibid. See Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 361 n.7 (1982). Contrast Commonwealth v. Hrabak, 440 Mass. 650, 655 (2004).
The defendant also challenges on appeal several aspects of the prosecutor's closing argument, only one of which was objected to at trial. In any event, none rises to the level of reversible error, much less a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Borodine, 371 Mass. 1, 11- 12 (1976). However, we would be remiss if we did not indicate our continuing concern about the lack of careful preparation of closing argument on the part of prosecutors.
In sum, we affirm the defendant's conviction based substantially on the reasoning and authorities set out in the Commonwealth's brief.
Judgment affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),