Opinion
20-P-54
11-05-2020
COMMONWEALTH v. Ashley JONES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was convicted of operating under the influence of intoxicating liquor and negligent operation of a motor vehicle. In this consolidated appeal, the defendant claims that the judge committed reversible error in denying the defendant's motion for a required finding of not guilty and that certain comments by the prosecutor in the Commonwealth's closing argument created a substantial risk of a miscarriage of justice. She also argues that the judge erred in denying the defendant's motion for new trial based on the judge's determination that the defendant failed to demonstrate the existence of newly available evidence. We affirm.
The jury acquitted the defendant of leaving the scene of property damage.
The defendant first appealed from her convictions and then appealed from an order denying her motion for new trial. The two appeals were later consolidated.
Discussion. 1. Sufficiency of evidence of operation. The defendant challenges the sufficiency of the Commonwealth's evidence that she operated a motor vehicle. "[W]e consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 573 U.S. 937 (2014). We limit our discussion to the single element -- operation -- challenged on appeal.
At approximately 3 A.M. , delivery driver David Gold was waiting in his box truck at a stoplight in Wilmington. In the "pitch black[ness]," he noticed lights behind him, then "didn't see any lights." He immediately got out of his truck and walked to its rear, where he saw a car with its "whole front end ... stuck under" the rear of his truck. He saw a woman get out of the driver's side of the car and a man exit the car's passenger's side. The woman ran up to Gold, demanding to know why he stopped. The woman repeatedly indicated that she needed to get "[her] car out" from under the truck, and, as Gold watched, returned to the driver's side of the vehicle in an unsuccessful attempt to start the car; Gold "heard the clicks," but the car did not start. Gold informed the pair that he was going to get his cell phone to call 911. When he returned to the rear of the truck, the woman and man had left the area.
During a nonsuggestive identification process before trial, Gold was unable to identify the defendant.
Following two pairs of footprints in the snow, the police located the defendant and, a short distance away, a man, Jesse Meharg, just over the town line in Andover. The defendant appeared intoxicated, and told the police, "Fuck you guys ... it wasn't me."
The police later determined that the car was registered to the defendant.
The evidence, while circumstantial, was sufficient to prove that the defendant operated the car Gold discovered wedged under the rear of his truck. The jury could have inferred that Gold's observation of the lights' rapid approach and sudden disappearance marked the arrival of the defendant's car in the area and its subsequent collision with Gold's truck. Gold's observation of the defendant emerging from the driver's side of the vehicle moments after the collision permitted the inference that she had been driving the car. See Commonwealth v. Proia, 98 Mass. App. Ct. 125, 127-128 (2020) (sufficient evidence of operation where vehicle registered to defendant left unoccupied in snowbank, defendant located nearby and within short time of report of accident, and defendant's physical appearance and condition consistent with involvement in accident and walking through snow); Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006) (sufficient evidence of operation where engine still warm; defendant had keys, was registered owner, appeared intoxicated, agreed to and complied with sobriety tests; and no evidence indicated that someone else operated car). See also Commonwealth v. Rand, 363 Mass. 554, 562 (1973) (sufficient evidence of operation where defendant had opportunity to operate at time of accident, had not authorized others to use vehicle, and had possession of keys). The case on which the defendant relies is readily distinguishable. See Commonwealth v. Shea, 324 Mass. 710, 712-714 (1949) (evidence of operation insufficient where no evidence placed defendant in hit-and-run vehicle on date of accident and witness testified to another individual's operation of vehicle less than three hours before collision).
There was evidence from which the jury could have concluded that the defendant and Jesse Meharg, the father of the defendant's child, were the woman and man with whom Gold spoke immediately after the car collided with the rear of the truck. See Proia, 98 Mass. App. Ct. at 127-128. There was likewise evidence from which the jury could have, without resorting to speculation, concluded that the defendant, and not Meharg, was driving at the time of the collision. See Commonwealth v. Beltrandi, 89 Mass. App. Ct. 196, 201-202 (2016) (presence of second person did not render inference that defendant was operator unreasonable where defendant, who appeared intoxicated, was seen in driver's seat and manner in which vehicle was parked suggested operator had been under influence of liquor when parking). This evidence was sufficient.
2. Prosecutor's closing argument. The defendant's challenge to the prosecutor's closing argument was not preserved at trial. Thus, to the extent that we discern error in the judge's permitting the unchallenged argument to stand, we review for a substantial risk of miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
At trial, the defendant described drinking whiskey and beer with Meharg beginning at 6 or 7 P.M. on the night of the collision, and although she confirmed that both she and Meharg were intoxicated when the collision occurred, she testified that Meharg, and not she, was driving the car at the time. On direct examination, the defendant described her unsuccessful efforts after the collision to recover her keys from Meharg; on crossexamination, she testified that Meharg ran away with her cell phone and keys and that she followed him. In his closing argument, defense counsel conceded that the defendant "fled [the] scene" of the accident, but urged that she was "going after Mr. Meharg, who had her purse and her keys." In his closing, the prosecutor referred to the defendant's testimony about the reason for her flight from the accident scene, then suggested to the jurors that "you should be asking, ‘Why did she run?’ " as part of their assessment of the credibility of the trial evidence on both sides.
In response to the prosecutor's question, "But you ran away, didn't you?" the defendant said, "I ran after him."
The defendant challenges the following portion of the prosecutor's argument:
"And then you've heard the defendant's testimony, and she admitted she fled the scene. Why did she run? A question the Commonwealth believes you should be asking, ‘Why did she run?’ It was her car, it was disabled in the road. If she did nothing wrong, why did she run? ... But if the defendant wasn't driving the car, what was her incentive to run[?]"
This argument did not improperly shift the burden to the defendant, as the defendant now argues. Read in context, see Commonwealth v. Miller, 457 Mass. 69, 79 (2010), the challenged portion of the prosecutor's argument asked the jury to infer that the defendant fled from the accident scene to avoid the consequences of her impaired driving, and to reject the defendant's explanation of the reason for her departure. This argument was based in the evidence and was a permissible means of challenging the credibility of the defendant's testimony. See Commonwealth v. Whitman, 453 Mass. 331, 345 (2009) ("[closing a]rguments based on testimony submitted at trial ... are proper" [citation omitted] ); Commonwealth v. Espada, 450 Mass. 687, 699 (2008) (considered in context, closing arguments asked what average person would do); Commonwealth v. Oliviera, 431 Mass. 609, 613 (2000) (viewed in context, it became clear that prosecutor's closing argument was "grounded in common sense"). It was also a proper response to the defendant's closing argument, in which defense counsel pointed to the defendant's testimony that she left to follow Meharg, who she said still held her keys and purse, and not because Gold intended to call the police to the accident scene. See Miller, supra, citing Whitman, supra at 346. Where the defendant not only testified at trial, but testified specifically about the reason she left the accident scene and "fled" into the surrounding woods, we discern no indication that the prosecutor's argument amounted to an attempt at improper burden shifting, or that it had that effect. See Commonwealth v. Tu Trinh, 458 Mass. 776, 787 (2011).
3. Motion for new trial. After trial, the defendant moved for a new trial, see Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), on the grounds of "newly available evidence" -- an affidavit signed by Jesse Meharg after trial, averring that he was driving the defendant's car at the time of the collision. "A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Where the defendant claims that the evidence at issue is "newly available," she bears the same burden. See Commonwealth v. McGee, 467 Mass. 141, 147-148 (2014) (confirming same framework applies to review of "newly available" and "newly discovered" evidence for purposes of motion for new trial). Reviewing the judge's denial of the motion for "a significant error of law or other abuse of discretion," we discern none. Grace, supra at 307.
In conducting our review, we accord "special deference to the action of a motion judge who was also the trial judge." Grace, supra at 307.
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We are persuaded that, as the judge concluded in her thoughtful memorandum of decision, the defendant failed to show Meharg's evidence was newly available. First, on this record, the judge did not err in finding that the defendant "made no effort to secure the testimony of Mr. Meharg for the trial." It is not clear from the record that the defendant took anything more than the most cursory steps -- if any -- to attempt to secure Meharg's appearance in court on the trial date. See Commonwealth v. Wolinski, 431 Mass. 228, 237 (2000) ("defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence" and "defense counsel's affidavit did not set forth what steps, if any, were taken at the time of trial to interview or to locate [the witness]"); Grace, 397 Mass. at 306 ("defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence").
Second, the defendant failed to demonstrate that Meharg would have been unavailable to testify at trial, had he appeared. Even accepting that Meharg's affidavit, along with the evidence at trial concerning his intoxication by alcohol and drugs, established that Meharg had the right to exercise a testimonial privilege if he had been called as a trial witness, see Matter of Grand Jury Investigation, 92 Mass. App. Ct. 531, 532 (2017), quoting Hoffman v. United States, 341 U.S. 479, 486 (1951) ("The protections of the Fifth Amendment apply to testimonial statements that may support a conviction, and to those that ‘would furnish a link in the chain of evidence needed to prosecute’ a defendant"), the record, including Meharg's affidavit, is silent about whether Meharg would have done so. See Wolinski, 431 Mass. at 237 (even where witness previously asserted Fifth Amendment privilege, appellate court will not assume she would continue to do so). Cf. Commonwealth v. Sullivan, 469 Mass. 340, 350 n.6 (2014) (defining "newly available evidence" to include "evidence that was unavailable at the time of trial for a reason such as a witness's assertion of a privilege against testifying").
As the defendant failed to demonstrate that Meharg's claim to have been the driver at the time of the collision was newly available evidence, we need not consider the parties' remaining arguments concerning the effect of any testimony that Meharg might have given. It suffices to say that we conclude that the judge neither erred nor abused her discretion in denying the motion for new trial. See Commonwealth v. Vargas, 475 Mass. 338, 363 (2016) (affirming denial of new trial where defendant failed to establish proposed expert testimony was "newly available"). That the judge ruled on the motion without conducting an evidentiary hearing was not error as "no substantial issue [was] raised by the motion or affidavits." Wolinski, 431 Mass. at 237, quoting Mass. R. Crim. P. 30 (c) (3), 378 Mass. 900 (1979).
Judgments affirmed.
Order denying motion for new trial affirmed.