Opinion
No. 12–P–17.
2012-10-24
COMMONWEALTH v. Luis N. ORTIZ.
By the Court (BERRY, GREEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction of operating a motor vehicle under the influence of intoxicating liquor, G.L. c. 90, § 24(1)( a )(1), the defendant raises various claims of error. We discern no reason to disturb the judgment and affirm, addressing the defendant's claims in turn.
1. Public way. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the evidence was sufficient to establish beyond a reasonable doubt that Colonial Village Drive is a “way ... to which members of the public have access as invitees or licensees.” G.L. c. 90, § 24(1)( a )(1), as appearing in St.1982, c. 373, § 2. The way is physically open, without a gate or other barrier to its entrance, and it serves as the primary means of vehicular access to residents of the 144 units in the Colonial Village complex, their guests, contractors, delivery services, and others with any reason to enter the complex or any of its units. No sign purports to limit access over the way. See Commonwealth v. Muise, 28 Mass.App.Ct. 964, 966 (1990). Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182–183 (2009); Commonwealth v. Virgilio, 79 Mass.App.Ct. 570, 574–575 (2011). 2. Improper argument. We discern no basis for relief arising from the prosecutor's characterization of Officer Cronin's testimony as stating that “there are markings on the road, there are markings on the side of the street as well as parking spaces.”
The description was largely consistent with the officer's testimony, which stated that “they mark out the parking spaces and their parking areas. I believe the curbs might be painted yellow and like fire lanes and stuff....” Moreover, even we were to accept the defendant's view that the prosecutor's summary was to some extent inconsistent with the actual testimony, its significance was marginal in the context of the various other indicia that the way was open to, and regularly used by, members of the public.
The defendant did not object to the argument at trial.
We note that the trial judge instructed the jury (both before and after closing arguments) that, in case of any discrepancies between the arguments of counsel and the testimony of witnesses, the latter should control.
3. Other issues. The defendant's remaining claims of error are likewise without merit. Contrary to the defendant's claim on appeal, the trial judge did not preclude the defendant from presenting testimony about the condition of his knee. Instead, as the Commonwealth observes, the judge simply sustained an objection to the defendant's nonresponsive answer to a question posed by his counsel.
When defense counsel next (without objection) posed a question seeking to elicit information about how the defendant's condition might have affected his ability to stand on one leg, the defendant's answer included no information regarding a knee condition. Thereafter, defense counsel made no effort to pursue the topic further. There was no error. See Commonwealth v. Cheek, 374 Mass. 613, 614–615 (1978); Commonwealth v. Smith, 26 Mass.App.Ct. 673, 679–680 (1988). Finally, Sergeant Kerr was properly allowed to offer his opinion concerning the defendant's intoxicated condition. See Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 321 (1994).
The question and answer were:
Q: “What if anything did Officer Cronin ask you to do?”
A: “He asked me to stand on one leg and I did not mention to him that I had surgery on my knee.”
Judgment affirmed.