Opinion
16-P-515
08-03-2017
COMMONWEALTH v. Gregory D. COLANDRIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was indicted for manslaughter while operating a motor vehicle under the influence of intoxicating liquor (OUI manslaughter), G. L. c. 265, § 13 ½; felony motor vehicle homicide, G. L. c. 90, § 24G(a ) ; and leaving the scene of an accident after causing death, G. L. c. 90, § 24(2)(a½)(2). With respect to the OUI manslaughter and motor vehicle homicide charges, the Commonwealth proceeded under both the "impaired ability" and "per se" theories. After a trial in the Superior Court, a jury acquitted the defendant of OUI manslaughter and felony motor vehicle homicide. The jury found the defendant guilty of misdemeanor motor vehicle homicide under the impaired ability theory, G. L. c. 90, § 24G(b ), and of leaving the scene.
The Commonwealth can prove these crimes by showing either that the defendant's blood alcohol content was .08 or higher while operating a motor vehicle (the "per se" theory), or that he was operating "under the influence of intoxicating liquor" (the "impaired ability" theory). See Commonwealth v. Colturi, 448 Mass. 809, 810 (2007).
On appeal, the defendant argues (1) that the evidence of his blood alcohol content (BAC) should have been accompanied by expert testimony and additional jury instructions, (2) that the prosecutor's closing argument was improper, and (3) that inconclusive deoxyribonucleic acid (DNA) test results were erroneously admitted. We affirm.
Discussion. 1. BAC evidence and instructions. As noted, the Commonwealth sought to prove OUI manslaughter and motor vehicle homicide under both the "impaired ability" and "per se" theories. The defendant, relying on Commonwealth v. Colturi, 448 Mass. 809, 818 (2007), contends that to prove his guilt under the impaired ability theory, the Commonwealth was required to present expert testimony on the "relationship between various blood alcohol percentages and impairment," and that without this testimony, the jury could have been "left to guess" at this relationship. He also contends that the judge erred by failing to instruct on the inferences the jury could draw from a BAC level of less than .08 percent. Recognizing that he did not raise these claims at trial, the defendant asserts that these errors created a substantial risk of a miscarriage of justice.
We discern no error. The Colturi requirement of expert testimony is limited to those cases in which "the Commonwealth chooses to proceed only on an impaired ability theory and intends to offer evidence of a breathalyzer result of .08 or above." Id. at 811. In such a case, the Commonwealth "must present expert testimony establishing a relationship between the test results and intoxication as a foundational requirement of the admissibility of such results." Id. at 818. Here, because the Commonwealth proceeded under both theories, expert testimony on the relationship was not required.
The judge instructed the jury that, except when they were considering the per se theory, "a breath or blood test is not sufficient by itself to prove that the defendant was under the influence of alcohol." They were also instructed to consider "any believable evidence about the defendant's alleged consumption of alcohol, as well as the defendant's appearance, condition, and behavior at the time," and "whether a breath or blood test showed that the defendant had consumed any alcohol." The defendant contends that these instructions were insufficient because the judge did not also instruct on "the statutory provision creating a permissible inference that the defendant was not operating while under the influence if the test results were .05 or less, and the lack of any permissible inference if the results were greater than .05 and less than .08."Id. at 817. On the facts of this case, we discern no error in the instructions as given.
He also contends that Colturi's holding that expert testimony is not required when the Commonwealth proceeds on both theories is premised on the assumption that such an instruction would be given.
The evidence showed that eight to nine hours after the fatal collision, the defendant's BAC ranged from .036 to .022. Using the principle of retrograde extrapolation, Massachusetts State police forensic scientist Melissa O'Meara calculated that the defendant's BAC at the time the police responded to the crash could have ranged from .082 to .276 based on the .022 reading, or from .090 to .268 based on the .036 reading. As the judge correctly instructed the jury, "the question is not whether the defendant had a blood alcohol percentage equal to or greater than .08 at any time, but at the time he was operating the vehicle in question." Although the jury could have declined to credit the retrograde extrapolation evidence altogether, the evidence provided no basis for the jury to conclude that the defendant's BAC was .05 or less at the time of crash; therefore, an instruction on the permissible inference they could draw from such evidence was unwarranted. See Commonwealth v. Monico, 373 Mass. 298, 299 (1977) ("[A] defendant is not entitled to a charge on a hypothesis which is not supported by the evidence"). The judge's instruction that "a breath or blood test [under .08] is not sufficient by itself to prove that the defendant was under the influence of alcohol" was another way of saying that the jury could not draw an inference of impairment from such results. Given the state of the evidence, the judge's instructions were sufficient.
The .022 result reflected a later blood test at the hospital, which then had to be converted from a serum alcohol level to a BAC.
2. Prosecutor's closing argument. The defendant contends that the prosecutor misstated the evidence when he argued that the defendant drank "five to ten, six to seven beers at the first stop," and had "too [many drinks] to count." He also claims that the prosecutor's numerous references to the defendant's prearrest and postarrest silence were improper. Because the defendant did not object to these aspects of the closing argument, we review any error under the substantial risk of a miscarriage of justice standard.
a. Misstating the evidence. "The prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom," Commonwealth v. Paradise, 405 Mass. 141, 152 (1989), but "must also take caution not to misstate the evidence." Commonwealth v. Coren, 437 Mass. 723, 730 (2002). "In analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.’ " Id. at 730-731, quoting from Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984).
The evidence largely supported the prosecutor's arguments regarding the number of drinks the defendant consumed. However, the prosecutor misspoke when, paraphrasing Geron Topi's testimony, he argued that the defendant had "five to ten, six to seven beers at the first stop" (emphasis added). Topi testified that the defendant had "[s]omewhere around five to ten" drinks over the course of the night, and when confronted with his grand jury testimony, agreed it was "more like six or seven." He testified that the defendant had "around ... four or five beers" at the first bar. While the prosecutor's comment was technically inaccurate, it was meant to emphasize the quantity of alcohol the defendant consumed over the course of the evening, not where he consumed it. In addition, the judge mitigated any harm by instructing the jury that closing arguments "are not a substitute for the evidence," and that "[i]f your memory of the testimony differs from the attorneys['], ... it's your collective recollection that controls." Moreover, even if error, this minor misstatement does not warrant reversal. See Commonwealth v. O'Connell, 432 Mass. 657, 660 (2000), and cases cited therein.
b. Reference to the defendant's silence. The evidence and its fair inferences supported the prosecutor's argument that the defendant fled the scene of the accident to conceal his inebriated state. This line of argument was relevant in proving the charge of leaving the scene; indeed, the judge properly instructed that the sixth element of that crime was "that the defendant went away to avoid prosecution or evade apprehension." See Commonwealth v. Henault, 54 Mass. App. Ct. 8, 11 (2002) ; Commonwealth v. Muir, 84 Mass. App. Ct. 635, 638, 642 (2013). Accordingly, the prosecutor's statements that the defendant "split from the scene" and "doesn't even tell his mother" about the accident were proper.
However, the prosecutor erred when he referred to the defendant's postarrest, post-Miranda silence, stating the defendant "[s]peaks not with the police, but with a nurse"; that the defendant suddenly "quiets down" when he is on the phone at the police station because "he doesn't want [a State trooper] to hear what he's saying." These statements were improper. See Commonwealth v. Teixera, 396 Mass. 746, 752 (1986) ("A defendant's right to remain silent cannot be compromised by prosecutorial comments that cast aspersions on its exercise"); Commonwealth v. Johnson, 32 Mass. App. Ct. 989, 991 n.3 (1992) ( "Due process is violated by any use of a defendant's silence after he had been arrested and advised of his Miranda warnings").
The prosecutor also argued that a stipulation the defendant made at trial was "great. But on November 23rd, 2013, [he] wasn't owning up to anything." The comment was appropriate to the extent it referred to the defendant's leaving the scene in the early morning hours of November 23, but improper if made in reference to his postarrest silence later in the morning of November 23. While we are unable to conclude what the prosecutor intended, it bears emphasis that use of a defendant's prearrest silence against him must be approached with caution. See Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 649 (2008).
Nonetheless, we conclude that this improper line of argument did not materially influence the verdict and, therefore, did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 548-549 (2009). The central issues at trial were whether the defendant was driving negligently or recklessly, and whether he had a BAC of .08 or higher or was under the influence, when he crashed. While defense counsel ably cast doubt on the Commonwealth's BAC evidence, the evidence of the events of the evening, combined with the defendant's flight from the fatal collision, provided overwhelming evidence of his guilt. The prosecutor's remarks on the defendant's silence many hours after the key events, while improper, were not central to the Commonwealth's proof. Moreover, defense counsel conceded that the defendant should have stayed with his car and called 911, but argued that the defendant "is not guilty of manslaughter and he's not guilty of felony motor vehicle homicide." The jury acquitted the defendant of those very charges, convicting him of the lesser-included offense of misdemeanor motor vehicle homicide and of leaving the scene. The prosecutor's improper argument likely did not make a difference in the jury's deliberations and did not create a substantial risk of a miscarriage of justice.
3. DNA evidence. Among the items recovered from the car the defendant had been driving was an open bottle of whiskey. The bottle was swabbed and tested for the presence of DNA. At trial, DNA analyst Jessica Hart testified that "the DNA profile yielded inconclusive results for comparison due to the quality and/or complexity of the profile." She further testified that "there wasn't quite enough DNA to do anything with it," and therefore she "would neither include nor exclude anybody from that sample." The defendant moved in limine (without having filed a written motion) to prevent the results of the test from being presented to the jury. The judge denied the motion, but offered to give a "strong limiting instruction" that the only purpose of the test was to "show that [the Commonwealth] did [its] homework." However, at trial, no such instruction was given.
The trial judge asked for a reminder, but none was forthcoming.
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The inconclusive DNA results from the swab of the whiskey bottle should not have been admitted. "[F]or inconclusive DNA evidence to be admissible, it must be probative of an issue of consequence in the case." Commonwealth v. Nesbitt, 452 Mass. 236, 254 (2008). For example, "when faced with a challenge to the sufficiency of the Commonwealth's investigation, ... testimony regarding DNA test results, even those that are inconclusive, is relevant and probative to establishing the integrity and adequacy of the police investigation." Commonwealth v. Cavitt, 460 Mass. 617, 634-635 (2011). Because the defendant made no such challenge in this case, the inconclusive DNA results were not relevant. Id. at 635.
Because the issue was preserved by the defendant's pretrial motion, see Commonwealth v. Grady, 474 Mass. 715, 724-725 (2016), we review for prejudicial error. We are confident that the error did not influence the jury. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Hart's testimony was "wholly neutral," and she made no suggestion that she was unable to exclude the defendant as a contributor to the DNA sample. See Cavitt, supra at 635-636. Instead, she testified that "there wasn't quite enough DNA to do anything with it" and therefore she "would neither include nor exclude anybody from that sample." "[T]he testimony from [Hart] neither suggested to the jury that the defendant was in any way linked to the DNA found on the [bottle], nor implied that the defendant's DNA would have been found there if more of a sample had been present." Id. at 636. Indeed, defense counsel used the analyst's testimony to suggest that the defendant should be excluded. Any error in the admission of the testimony "would not have influenced the jury's conclusion." Ibid.
Judgments affirmed.