Opinion
No. 16–P–123.
12-07-2016
COMMONWEALTH v. Torrie MELLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Torrie Mello, appeals from her conviction of operating under the influence of alcohol in violation of G.L. c. 90, § 24. She alleges two errors: first, that the trial judge made comments and gave an instruction that had the effect of directing the jury to disregard her testimony, thus lowering the Commonwealth's burden of proof; and second, that the prosecutor made improper comments during his closing argument. We affirm.
Discussion. 1. The judge's comments and instruction. This was a two-witness case consisting of testimony from a State police trooper for the Commonwealth and from the defendant, Torrie Mello, in her defense. At several points during the trial, the judge made comments, without objection, that indicated there would be only one witness. At the close of trial, the judge began the jury charge with the instruction on reasonable doubt. After that, he gave an instruction on witness testimony. He began that instruction by saying, "Now, the evidence in this case is the officer's—oh excuse me—the trooper's testimony...."
During jury selection, the judge said, "And the one witness in the case ... Trooper Robert Lima of the State Police." After the jury were empaneled, the judge, during his initial instructions, said "assuming it's a one witness case, and the fact that it's a one witness case."
There was no objection to the instruction.
In this case, when read as a whole, the jury charge did not have the effect of lowering the Commonwealth's burden of proof. The judge began his reasonable doubt instruction by saying, "[I]f, after you compare all of the evidence in the case[.]" He later began his instruction on the types of evidence by saying, "And in regard to evidence in general just for a second; a witness gets up on the witness stand and they testify to—Well, they testify." Thus, taken together, these instructions had the effect of informing the jury that a witness's testimony was to be considered evidence, and that all the evidence must be considered when reaching a verdict. The jury are presumed to follow the judge's instructions. Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013).
We are mindful that "[j]uries are generally instructed by judges in their charges and urged by counsel in their argument that they must not leave their common sense outside the jury room." Commonwealth v. Mutina, 366 Mass. 810, 820 (1975). In this case, the judge informed the jury no less than three times to use their common sense. This is why it is not necessary for a judge to instruct the jury on how they may consider each item of evidence. See Commonwealth v. Thomas, 439 Mass. 362, 365–366 (2003). For example, just before the defendant was called as a witness, the judge asked, "Will the defendant be presenting any evidence? ... Alright. And who will that be? The defendant. Alright." Considering the judge's comments in the context of the jury charge as a whole, the jury would have understood that the evidence consisted of the testimony from the trooper and the defendant. Thus, the judge's comments and instruction did not have the effect of lowering the Commonwealth's burden of proof.
There is no support for the defendant's claim that the judge's comments or the instruction constituted structural error. The defendant relies on Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995), and argues that the judge's comments diminished the effect of the judge's instruction on the Commonwealth's burden of proof. In Pinckney, the court explained that the fact that the judge used the phrase "moral certainty" in his jury instructions "outside the context of the Webster charge and in conjunction with language that shifted the burden of proof to the defendant amounted to reversible error." Ibid. In this case, the phrase "moral certainty" appears in the judge's instruction that the burden of proof is "beyond a reasonable doubt." The phrase appears one additional time when the judge summed up the elements that the Commonwealth was required to prove and is accompanied by the statement that the Commonwealth's burden is "proof beyond a reasonable doubt." This was followed by a third reference to the Commonwealth's burden of proof as "proof beyond a reasonable doubt." This is strikingly different from Pinckney where the court noted that "[t]he use of the moral certainty language, which potentially understated the degree of certainty required to convict, in conjunction with conflicting reasonable doubt definitions, inevitably lead us to the conclusion that the instruction failed to convey accurately to the jury the meaning of reasonable doubt." Id. at 349. The judge's references to a one-witness case in the context of the instructions in their entirety did not create error, let alone structural error. Pinckney is inapposite.
The judge's reasonable doubt instruction conformed in all material aspects with the standard instruction derived from Commonwealth v. Webster, 5 Cush. 295, 320 (1850), which was the recommended instruction in effect at the time of the defendant's trial. The court has since articulated a new reasonable doubt instruction to be used in all cases. See Commonwealth v. Russell, 470 Mass. 464, 477–478 (2015).
2. Closing argument. The defendant argues that two portions of the prosecutor's closing argument, to which there was no objection, were improper. She contends that the prosecutor erred by (1) appealing to the jury's sense of duty to convict; and (2) arguing facts not in evidence. We review the contested remarks "in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Myer, 38 Mass.App.Ct. 140, 146 (1995) (quotation omitted). And, as the defendant concedes, we conduct this review only to determine if there is a substantial risk of a miscarriage of justice. Commonwealth v. Cobb, 26 Mass.App.Ct. 283, 288 (1988).
The prosecutor's first comment began:
"She was unable to follow instructions. Why is that important to us? Only for you to decide, but I will suggest, you're driving down the road and there's signs and lights and other things that are giving us direction, we need to follow those as motorists because of the obvious consequences of not following the directions...."
The rest of the comment was not transcribed as the audio was indiscernible. The second comment was:
"And one thing that we need to be sure is when people drive, they're able to do that safely."
We begin by noting that the absence of an objection "is some indication that the tone, manner, and substance of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
The first comment in question is only partially transcribed, as the remainder of the comment is indiscernible. Because the record is incomplete, the defendant has failed to meet her obligation to present a record on appeal that is sufficient to permit us to review her claim of error. See Commonwealth v. Woody, 429 Mass. 95, 99 (1999). However, even considering the portion of the remark that is available, the remark was not improper. Immediately following the contested remark, the prosecutor noted that the defendant did not follow instructions for the field sobriety tests. Viewed in this context, the remark referred to the importance of following directions while driving, which the prosecutor then connected to the defendant's failure to follow directions during the field sobriety test. This was a fair comment on the evidence. See Commonwealth v.. Pettie, 363 Mass. 836, 840 (1973) ; Mass. G. Evid. § 1113(b)(2) (2016).
As for the second comment, the prosecutor did not argue facts not in evidence. The comment about needing to drive safely was preceded by the prosecutor noting that the defendant had consumed alcohol, was unable to follow directions, and was unable to complete the field sobriety tests. These comments were supported by Trooper Lima's testimony. Thus, the prosecutor was not alleging that the defendant failed to drive safely; he was suggesting that the defendant was impaired and that driving while impaired was not safe. This too was merely a fair comment on the evidence. See Pettie, supra.
Judgment affirmed.