Opinion
10-P-1170
10-11-2011
COMMONWEALTH v. ROBERT DEROCHEA.
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
Following a jury trial, the defendant was convicted in District Court of operating under the influence of alcohol (OUI), and subsequently pleaded guilty to an OUI second offense. See G. L. c. 90, § 24(1)(a)(1). In this appeal, the defendant contends that (1) the prosecutor's closing argument referred to 'glassy eyes' when the trial evidence did not include the appearance of the defendant's eyes; and (2) there was insufficient evidence to establish that the defendant was intoxicated while driving. We affirm.
1. Background. The trial evidence may be summarized as follows: On October 21, 2008, the defendant drove his work van into a disabled vehicle that was parked on the side of the roadway. The responding officer detected a strong odor of alcohol on the defendant's breath and noted that the defendant's speech was slurred. The officer administered field sobriety tests, which included asking the defendant to recite the alphabet, count backwards from thirty, and take nine heel-to-toe steps. The defendant failed all three tests. During his attempted performances, the defendant was swaying and unsteady on his feet. The defendant admitted he had consumed alcohol that evening but claimed he had only had one beer an hour earlier. The officer formed the opinion that the defendant was under the influence of alcohol and placed him under arrest.
2. Prosecutor's closing argument. The defendant contends there was error in the prosecutor's closing argument, because of a comment that the defendant had 'glassy eyes' at the scene of the accident. How the defendant's eyes appeared was a fact not in evidence. There was no objection to the glassy eyes remark and, accordingly, we review to determine whether there was an error, and if so, whether that error yielded a substantial risk of a miscarriage of justice. Commonwealth v. Dumais, 60 Mass. App. Ct. 70, 74 (2003).
We conclude that although the isolated comment was in error because it lacked a basis in the trial evidence, the error did not yield a substantial risk of a miscarriage of justice. There was overwhelming evidence that the defendant was intoxicated while driving. As noted above, the trial evidence included, but was not limited to, the defendant's admission that he had been drinking, the odor of alcohol on the defendant's breath, the defendant's slurred speech, the defendant's failing field sobriety tests, and -- of particular import, the defendant's driving his van into a parked car.
The defendant also argues that the prosecutor misstated a fact during closing argument by saying that the defendant 'went to the eleventh grade,' when the defendant had told the officer that he had gone to school, 'until about the eleventh grade.' This claim is wholly without merit.
3. Sufficiency of the evidence. The defendant also challenges the sufficiency of the evidence to support the OUI conviction. We review such evidentiary challenges under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-77 (1979). Based on the evidence summarized above, and viewed in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence for the jury to find that the defendant was driving under the influence of alcohol when he crashed his van into the parked car.
Judgment affirmed.
By the Court (Berry, Meade & Milkey, JJ.),