Opinion
15-P-173
03-21-2016
COMMONWEALTH v. LINDA J. MUSHAWEH.
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
Having been convicted by a District Court jury of operating a motor vehicle while under the influence of liquor, the defendant now appeals. We affirm.
The jury could have found that the defendant was seen driving erratically in a parking lot of a liquor store, nearly hitting a stopped car as she pulled into the plaza, and striking a parked vehicle twice while attempting to park her car. A police officer, who was dispatched to the scene to check on the defendant, observed her blocking the roadway with her car while waiting to pull out. As he drove behind her, the officer observed the defendant swerving into the opposite lane, crossing the double yellow line multiple times. The officer also testified that the defendant looked disheveled, and that there was an odor of alcohol emanating from the vehicle and her person as she spoke. The officer observed that the defendant had difficulty exiting her car and was unsteady on her feet. She had to lean on her vehicle for balance as she stood up. The officer also testified that he noticed an odor of alcohol in his cruiser that was not present before placing the defendant into the backseat. At the police station, the officer administered three different field sobriety tests (the alphabet test, the nine-step walk and turn test, and the one-leg stand test), and the defendant failed each one.
1. Sufficiency of the evidence. The defendant claims that the evidence was insufficient to show that she was under the influence of alcohol at the time of operation of the motor vehicle, and that the trial judge erred in denying her motions for a required finding of not guilty. These contentions have no merit. Under the familiar standard, viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), there was ample basis for the jury to convict the defendant. See, e.g., Commonwealth v. Platt, 440 Mass. 396, 401 (2003); Commonwealth v. Jewett, 471 Mass. 624, 635 (2015); Commonwealth v. Sauer, 50 Mass. App. Ct. 299, 303 (2000); Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438-439 (2002). While an officer may offer an opinion regarding the defendant's level of sobriety, see Commonwealth v. Canty, 466 Mass. 535, 544 (2013); Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994), it is not necessary or required that he do so. A conviction for driving while under the influence of alcohol may rest entirely on circumstantial evidence, "as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt." Platt, 440 Mass. at 401. Here, there was such sufficient evidence.
2. Prosecutor's closing argument. In her closing argument, the prosecutor erred in twice misstating the evidence. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (prosecutor should not misstate evidence or refer to facts not in evidence). Although Officer Poor testified at trial that the defendant "just had a blank stare at times," that testimony was stricken from the record on the defendant's objection; thus, the prosecutor's reference to it was error. Also, contrary to the prosecutor's representation in closing, the officer did not testify that the defendant "had slurred speech." Because there was no objection to either statement by the prosecutor at trial, the defendant must establish that the errors were "so gravely prejudicial as to pose a substantial risk of a miscarriage of justice." Commonwealth v. Renderos, 440 Mas. 422, 425 (2003). This she cannot do. Given the strength of the evidence establishing the defendant's impairment, the errors did not "'materially influence[]' the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). Moreover, the judge's detailed instructions to the jury -- that closing arguments were not evidence, and that if the jurors' memory of the evidence differed from that of the attorneys, it was their own recollections that controlled -- minimized any possible prejudice. See Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 14 (2010).
Judgment affirmed.
By the Court (Green, Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 21, 2016.