Opinion
14-P-87
01-06-2016
COMMONWEALTH v. JOSE LIMA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol. On appeal, he claims error in the judge's jury instructions, the judge's interruption of a witness's testimony, and the prosecutor's closing argument. We affirm.
The defendant makes no separate argument with respect to his appeal from the denial of his motion for new trial.
1. Jury instructions. For the first time on appeal, the defendant claims the judge's failure to give a specific instruction on circumstantial evidence created a substantial risk of a miscarriage of justice. The defendant maintains that, because there was only circumstantial evidence that he was the operator of the truck, the absence of an explanation of circumstantial evidence unfairly affected him. We disagree.
The judge properly charged the jury on the elements of the crime, and the defendant does not claim otherwise. Also unchallenged was the judge's instruction on proof beyond a reasonable doubt that mentioned drawing inferences from the circumstantial evidence. More specifically, the judge explained that the jury could find "the defendant was the operator of the motor vehicle even if no witness saw him driving if there is enough circumstantial evidence to prove to you beyond a reasonable doubt that the vehicle was operated and that the defendant and no one else was the operator of that particular vehicle." The jury instructions, as a whole, sufficiently conveyed the concept of circumstantial evidence and the drawing of inferences, and, at the very least, did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Marrero, 427 Mass. 65, 72 (1998), quoting from Commonwealth v. Sarmanian, 426 Mass. 405, 408 (1998) (judges are not required "to deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words").
There is similarly no merit to the defendant's claim that by omitting a specific circumstantial evidence instruction the jurors may have drawn improper inferences relative to Officer McNulty's testimony regarding the field sobriety tests. McNulty's testimony regarding the defendant's performance on the field sobriety tests is direct evidence, not circumstantial evidence. If the jury did not think McNulty sufficiently explained how the tests are conducted, they were free to disbelieve his testimony.
Also, contrary to the defendant's claim, the Commonwealth's case against the defendant was strong and was not affected by the absence of a specific circumstantial evidence instruction. The jury could properly base their verdict on the fact that the defendant failed five field sobriety tests, behaved in an argumentative manner, smelled of alcohol, had red and glassy eyes, was slurring his speech, and with no other person inside his truck, parked it in the middle of an intersection in the course of making a turn. This, coupled with the defendant's repeated statement to nearby witnesses that the other vehicle "did not respect" his wide turn, could properly be understood by the jury to be an admission of operation.
2. The judge's interruption. The defendant claims that when the judge interrupted Officer McNulty's testimony he impermissibly permitted the jury to believe McNulty's opinion on the ultimate issue in the case. We disagree. What the record actually shows is that after McNulty testified that he arrested the defendant for operating while under the influence of alcohol, the prosecutor asked McNulty for the basis of his opinion. However, before he could answer, the judge interrupted and stated that the officer had just testified to what he had done and to move on with other questions. In other words, the judge's interruption prevented McNulty from doing exactly what the defendant complains about on appeal. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (witness may offer an opinion of defendant's level of sobriety, but he may not offer an opinion as to whether the defendant operated a motor vehicle while under the influence of alcohol).
3. The prosecutor's closing argument. Finally, the defendant claims for the first time on appeal, and the Commonwealth concedes, that the prosecutor twice misstated the evidence in her closing argument. First, the prosecutor argued that the defendant was supposed to hold his leg up for six seconds as part of a sobriety test, but McNulty testified that he instructed the defendant to hold his leg up six to eight inches while counting. As the defendant could only briefly hold his leg up and did not count, the error regarding time versus height was minor at best. See Commonwealth v. Cosme, 410 Mass. 746, 755 (1991); Commonwealth v. Jenkins, 458 Mass. 791, 801-802 (2011).
The second misstatement occurred when the prosecutor argued that "the officer formed an opinion that the defendant was operating the vehicle under [the influence of] intoxicating liquor." As stated above, Officer McNulty gave no testimony regarding his opinion in this manner. However, McNulty did testify that the defendant was intoxicated, and detailed the reasons for that belief. The Commonwealth claims that arguing that McNulty formed such an opinion was a fair inference from the evidence, but McNulty did not, and was not entitled to, provide such testimony. In any event, it would hardly have come as a surprise to the jury if McNulty held such an opinion given his other testimony regarding the defendant's numerous signs of intoxication and that McNulty did arrest him for operating under the influence of alcohol.
Although the prosecutor misstated the evidence, we must view those misstatements in context of the entire trial: the lack of any objection; the strength of the Commonwealth's case against the defendant; and the judge's instruction to the jury that closing arguments are not evidence. In light of these considerations, it would not be reasonable to conclude that the misstatements materially influenced the verdict. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). As such, we conclude that the prosecutor's misstatements did not create a substantial risk of a miscarriage of justice.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 6, 2016.