Opinion
18-P-1691
11-16-2020
COMMONWEALTH v. STEPHANIE ROJAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Stephanie Rojas, was convicted by a jury of operating a motor vehicle under the influence of intoxicating liquor, child endangerment while operating under the influence, and leaving the scene of an accident after causing property damage. On appeal, the defendant argues that the prosecutor made various improper statements during the Commonwealth's opening statement and closing argument requiring the reversal of her convictions. We affirm.
Background. A jury could have found the following facts. On March 23, 2013, at approximately 1:53 A.M., Lynn Police Officer Sadrak Pierre was dispatched to a motor vehicle accident on Essex Street. While driving to the reported accident location, and less than 500 feet from the scene, Officer Pierre observed a piece of a motor vehicle bumper in the roadway. Upon arriving at the scene, Officer Pierre observed a two-car motor vehicle accident, where one motor vehicle, a green Nissan, appeared to have struck a blue, parked vehicle which caused that vehicle to be thrust partly onto the sidewalk. The parked vehicle had extensive damage along the rear passenger side, and the green Nissan vehicle was leaking liquid and had damage on its front end.
Officer Pierre approached the green Nissan and focused his attention on its four occupants: a female operator, later identified as the defendant, a male front seat passenger, and two children in the rear of the vehicle. Officer Pierre requested from the defendant her license and registration, and asked her to step out of the vehicle. As the defendant got out of the vehicle, Officer Pierre observed that she was not steady on her feet and held onto the side of the vehicle for balance. When he inquired whether the defendant was injured, she denied being hurt and declined medical treatment. Officer Pierre further observed that she had a strong odor of alcohol on her breath, was very talkative, had slurred speech, and that her eyes were glassy and red.
In accordance with his training, Officer Pierre asked the defendant to perform a series of field sobriety tests. He first asked the defendant to perform the "one leg stand test," and instructed the defendant to stand with her hands by her sides, and extend one leg about six inches from the ground while looking at her toes and counting to thirty. The defendant attempted to perform the test, but raised her foot backward, was unable to keep her balance, and "stopped the test completely." Officer Pierre next instructed the defendant to walk nine steps, heel to toe, on the double yellow line in the middle of the road, counting each step out loud with her hands by her sides. The defendant took three long steps, failed to count out loud, and was unable to keep her balance. She again "stopped the test completely." Officer Pierre determined that the defendant was under the influence of alcohol, and placed her under arrest.
After the defendant was arrested, Officer Pierre provided her with Miranda warnings, and asked her about the motor vehicle bumper he saw in the road before arriving at the accident scene. The defendant responded, "He hit me," but did not elaborate further. As Officer Pierre drove the defendant to the Lynn police station, he observed the bumper in the road close by an unoccupied Toyota 4Runner sport utility vehicle with damage to its left side, and liquid trailing from the 4Runner to the accident scene. At the police station, at approximately 6 A.M., the defendant spoke with two emergency workers from the Department of Children and Families (DCF) who were investigating a report of neglect of the two children.
Discussion. 1. Prosecutor's opening statement. The defendant first argues that the prosecutor improperly referenced potentially inadmissible evidence during the Commonwealth's opening statement. Prior to trial, the defendant filed a motion in limine seeking to exclude certain statements that she made to the DCF workers, specifically that she had consumed "five or six beers" on the night of the accident, because the DCF workers failed to provide the defendant with Miranda warnings. The judge denied the motion in limine, but stated that the evidence "would be subject to objection as the case unfold[ed]." Upon defense counsel's request to conduct a voir dire of the DCF worker who was to testify prior to that testimony, the judge responded, "Well, we'll take that up before she testifies."
In his opening statement, the prosecutor informed the jury that the DCF worker would testify that the defendant told the worker that the defendant had consumed five to six beers on the night of the accident. The defendant immediately objected to the prosecutor's statement, and the judge overruled the objection. Later in the trial and prior to the DCF worker's testimony, the judge conducted a voir dire of the DCF worker and ruled that the defendant's statement about consuming five to six beers was inadmissible. Because the defendant timely objected to the prosecutor's opening statement, we review for prejudicial error. See Commonwealth v. Deloney, 59 Mass. App. Ct. 47, 50 (2003).
"The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence." Commonwealth v. Fazio, 375 Mass. 451, 454 (1978), quoting Posell v. Herscovitz, 237 Mass. 513, 514 (1921). "A prosecutor's opening statement may reference anything that he or she reasonably believes in good faith will be proved by evidence introduced during the course of the trial, even if he or she is not certain the necessary evidence will be admitted. Specifically, the fact that an adverse evidentiary ruling might later bar introduction of certain evidence does not preclude a prosecutor from mentioning it in his or her opening." (Citation omitted.) Commonwealth v. DePina, 476 Mass. 614, 627 (2017).
Here, the prosecutor possessed a good faith and reasonable belief that the defendant's statement would be presented at trial. Although the judge agreed to conduct a voir dire of the DCF worker prior to her testimony, the judge specifically denied the defendant's motion in limine to exclude the defendant's statement at trial. It was thus reasonable for the prosecutor to rely on this denial despite the potential possibility that the judge may later exclude the testimony. See DePina, 476 Mass. at 627-628. Indeed, when the prosecutor did rely on this denial and referenced the defendant's statement in his opening, the judge overruled the defendant's objection to the reference, further demonstrating that it was reasonable for the prosecutor to believe that he could produce the statement at trial. The fact that the judge later determined that the defendant's statement could not be produced "does not demonstrate that the prosecutor acted in bad faith." Commonwealth v. Morgan, 449 Mass. 343, 361 (2007). See Commonwealth v. Errington, 390 Mass. 875, 883 (1984) (if predicted testimony does not materialize "neither unreasonableness nor bad faith are to be presumed"). Finally, the judge instructed the jury multiple times throughout the trial that opening statements were not evidence, and were not to be considered as such. See Deloney, 59 Mass. App. Ct. at 51 (judge's instruction that opening statements were not evidence cured possible prejudice). Thus, we discern no prejudicial error.
The defendant relies on Commonwealth v. Bearse, 358 Mass. 481, 487 (1970), for the proposition that a statement should not be made in the prosecutor's opening statement unless there is "no doubt of its admissibility." However, the quoted language in Bearse has since been limited to the circumstances of that case. See Commonwealth v. Morgan, 449 Mass. 343, 361 (2007) ("holding of the Bearse case has been limited to its special circumstances"); Fazio, 375 Mass. at 455.
2. Prosecutor's closing argument. The defendant makes both preserved and unpreserved claims that the Commonwealth's closing argument caused prejudicial error and a substantial risk of a miscarriage of justice requiring reversal of the judgments. "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
The defendant first contends that the prosecutor improperly shifted the burden of proof to the defendant in his closing argument. During the defendant's case-in-chief, a defense witness, Nixon Aguirre, testified that he was with the defendant on the night of the accident, and stated she was wearing high-heeled boots that she had difficulty walking in. During closing argument, defense counsel suggested to the jury that it was improper for Officer Pierre to subject the defendant to the field sobriety tests while she was wearing the high-heeled boots. In response, the prosecutor, during his closing argument, posed to the jury: "Where are these boots? If they were so important, where are they?" Because the defendant made a timely objection to this statement at trial, we review for prejudicial error. Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009).
While a prosecutor may argue "forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence," Commonwealth v. Kozec, 399 Mass. 514, 516 (1987), he or she "may not shift the burden of proof or argue that the defendant has any affirmative duty to prove his innocence." Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018). The Commonwealth concedes that the prosecutor's statement regarding the defendant's failure to produce the boots was error, and after an independent review of the issue, we agree. See Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010). We also agree with the Commonwealth that this error did not prejudice the defendant in a manner that requires reversal of the judgments.
To determine whether prejudice resulted from a prosecutor's closing argument, "we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury that may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 807 (2009), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).
The question here was whether the defendant was intoxicated that evening while operating her vehicle. Wearing high-heeled boots may have been relevant to the defendant's inability to balance during the field sobriety tests, but such tests measure more than just balance. See Commonwealth v. Sands, 424 Mass. 184, 188 (1997) (ordinary field sobriety "tests measure a person's sense of balance, coordination, and acuity of mind in understanding and following simple instructions"). This notwithstanding, the defendant's performance of the field sobriety tests was only one aspect of the Commonwealth's case in proving intoxication, and the defendant herself advanced arguments, other than the fact that she was wearing high-heeled boots, to show her lack of intoxication. The judge instructed the jury twice that the closing arguments are not evidence. He emphasized to the jury that the Commonwealth bears the burden of proving the defendant's guilt beyond a reasonable doubt, that the law presumes the defendant is innocent, and that "the defendant is not required to call any witnesses or produce any evidence whatsoever." "These instructions, to which we presume the jury adhered . . . effectively neutralized any prejudice" resulting from the prosecutor's closing argument. Commonwealth v. Johnson, 463 Mass. 95, 114 (2012). The Commonwealth's case was strong and we are convinced that, in the context of the entire trial, the prosecutor's statement "did not 'substantially sway[]' the jury." Id., quoting Commonwealth v. Semedo, 456 Mass. 1, 14 (2010).
At sidebar, the judge recognized that the Commonwealth's statement regarding the location of the boots was "problematic." He stated that, as a result, he expanded his usual instruction that "the defendant had no obligation to present any evidence," to include that the defendant was not obligated to produce any physical evidence, and he repeated that statement twice in his instructions.
The defendant next contends that the prosecutor argued beyond the evidence and impermissibly appealed to the jurors' emotions when he stated in his closing argument: "It's a miracle those kids got home that night. That is the face of irresponsibility. Hold her responsible for what she's done." Because there was no objection to these particular statements at trial, "we review to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Ahern, 96 Mass. App. Ct. 197, 202 (2019).
The defendant asserts that the prosecutor's statement was not a fair inference drawn from the evidence because the accident involved was minor. It is true that "[a] prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence." Commonwealth v. Cole, 473 Mass. 317, 333 (2015), quoting Commonwealth v. Kelly, 417 Mass. 266, 270 (1994). "Nonetheless, a prosecutor may argue zealously in support of inferences favorable to the Commonwealth's case that reasonably may be drawn from the evidence." Commonwealth v. Carriere, 470 Mass. 1, 22 (2014). Considering that the jury could reasonably infer that that defendant struck at least one vehicle, and likely two, while driving under the influence of alcohol, the prosecutor's remarks suggesting that it was a "miracle" that the children made it home "did not cross the line between fair and improper argument," Commonwealth v. Lyons, 426 Mass. 466, 472 (1998), but instead fell "into the category of enthusiastic rhetoric, strong advocacy, and excusable hyperbole" (citation omitted). Commonwealth v. Silva, 455 Mass. 503, 515 (2009). Because we conclude there was no error, there was no substantial risk of a miscarriage of justice.
The defendant also argues that the cumulative effect of the above-claimed errors prejudiced the defendant such that a new trial is required. Given our disposition of the issues raised by the defendant, we disagree. Any cumulative error "was no more prejudicial than the individual errors, which had minimal impact." Commonwealth v. Kosilek, 423 Mass. 449, 457 (1996).
Judgments affirmed.
By the Court (Rubin, Desmond & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 16, 2020.