Opinion
19-P-783
11-18-2020
COMMONWEALTH v. GREGORY TOBEY.
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
On February 5, 2016, the defendant was found in his pickup truck, which was at least twenty to thirty feet down an embankment off of Route 114 in Danvers; the truck was resting against a tree. When the police arrived the defendant complained of chest pains, and after he was removed to a nearby hospital, an inventory of the truck produced three empty beers -- two forty ounce bottles and one twenty-five ounce can. A receipt found in the car suggested that the defendant had purchased at least one of the empty forty ounce beers one hour and thirty minutes earlier.
A jury convicted the defendant of operating under the influence of intoxicating liquor. On appeal, he argues that there was insufficient evidence to support his conviction, and that the prosecutor made several improper and prejudicial statements during closing argument. We affirm.
Background. The jury reasonably could have found the following. At approximately 4:45 P.M. on February 5, 2016, Stephen Collins of the Danvers Department of Public Works came upon a one-vehicle accident off of Route 114. A pickup truck had jumped the curb, gone through a snowbank, and was resting at the bottom of a slope, off the roadside. There was a light snowfall at the time. Collins called the police.
Officer Hines of the Danvers Police Department arrived fifteen minutes later. He walked down the slope and spoke to the defendant, who was sitting in the truck, staring straight ahead, smoking a cigarette. The defendant stated that he couldn't move his left arm, and he appeared to have an injury to his left hand. The defendant produced a Massachusetts ID, but not a driver's license. Hines saw that the defendant had red and glassy eyes, and Hines smelled a faint odor of alcohol. The defendant denied that he had been drinking. When asked what had happened, the defendant indicated that he had merely pulled his truck off the roadway and parked. Hines called for an ambulance.
After the defendant was taken away by ambulance, Hines conducted an inventory search of the truck in advance of having it towed. Among other items, Hines found the three empty beer containers in the passenger compartment. He also found two unopened forty ounce beers, and a plastic bag with a liquor store receipt. The receipt showed that at 3:15 P.M. that day, the defendant had purchased three forty ounce beers with a credit card bearing his name.
Officer Hines thereafter went to the Beverly Hospital, where he again observed the defendant, who initially was speaking appropriately, with hospital personnel. At some point, however, a doctor indicated that he wanted the defendant to stay at the hospital, so he could run tests, and the defendant's demeanor changed. The defendant became angry, he refused to accept a citation from Officer Hines, and then he walked toward the exit of the hospital.
Officer Hines left the hospital at that point, but apparently, the defendant did not. Instead, the defendant got into a scuffle with hospital staff. The police were called, and Officer Henebury of the Beverly Police Department responded, along with another officer. After breaking up the scuffle, Henebury asked the defendant if he wanted medical attention. The defendant was belligerent and would not respond, so Henebury put him in a police cruiser, to take to the police station. Once inside the cruiser, the defendant stated that in fact he did need medical attention, and the officers walked him back inside the hospital. Once inside, however, the defendant again refused medical attention.
The defendant was indicted for operating a motor vehicle under the influence of intoxicating liquor, and driving with a suspended license. At trial the prosecution presented three witnesses: Collins, Officer Hines, and Officer Henebury. The defendant presented no witnesses of his own, although the hospital records were in evidence, and showed that the defendant had a recent history of cardiac problems. In closing, defense counsel emphasized that the accident could be explained by the adverse weather conditions, and the fact that the defendant was having a medical emergency. Defense counsel also emphasized, multiple times, that there was no hard evidence that the defendant had alcohol in his blood, even though some tests had been performed at the hospital:
"So taking everything in consideration, the fact that there was no blood alcohol content, the medical reports . . . ."
The prosecutor's closing relied upon the evidence that the defendant had been drinking, including the circumstances of the accident and the empty beer containers. She also argued that the defendant's medical emergency was contrived, and that the defendant was just deflecting attention by claiming injury and going to the hospital. The prosecutor labelled this "playing possum." In response to the point that there was no blood alcohol test, the prosecutor said:
"The defendant, when he was told we want to do further tests, he checks himself out. So they can't do further tests on him because he is taking himself out and prevents any further testing to be done.
"So I submit to you, you can draw no inference one or the other about what happened because the defendant prevented any further testing."
The defendant was convicted on both counts. On appeal, he challenges only the conviction for operating under the influence of intoxicating liquor.
Discussion. 1. Sufficiency of the evidence. We review a challenge to the sufficiency of the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671 (1979). The conviction will be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Id. at 677. Here, there was more than sufficient evidence that the defendant operated his truck while under the influence.
To begin, the circumstances of the accident are themselves an indication that the defendant was impaired. It was a single-car accident, with no indication as to why the defendant left the roadway. When confronted at the scene, the defendant stated, incredibly, that he merely "parked" his truck down the twenty to thirty foot embankment. The defendant exhibited signs of impairment -- the red and glassy eyes, odor of alcohol, and belligerent behavior -- and the empty beer containers told a powerful story. Certainly, the jurors could infer that the defendant had drunk at least one forty ounce beer -- the equivalent of more than three ordinary twelve ounce beers -- within the past hour and thirty minutes. The receipt showed three forty ounce beers purchased at 3:15 P.M.; at 4:45 P.M., the bag, receipt, and two unopened beers remained, with more than one empty forty ounce beer beside them.
Hospital records indicate, in addition, that "[the defendant] reports 24oz beer consumed prior to EMS on scene."
No more evidence was required to support the jury's verdict of driving under the influence of intoxicating liquor. On appeal, the defendant again points to the evidence that he was having symptoms of a cardiac event, and that it was equally plausible that the cardiac event, coupled with the winter conditions, were the cause of the accident. The defendant also argues that direct evidence of impairment was lacking -- that there was "no evidence that Mr. Tobey was seen driving erratically, there were no field sobriety tests performed, . . . and there were no blood alcohol tests conducted."
We are not persuaded. It was for the jury to evaluate all the evidence, and to draw such reasonable inferences as it deemed appropriate. However plausible, "the jury were free, but not required, to believe the defendant's" version of events. Commonwealth v. Merry, 453 Mass. 653, 662 (2009). As noted, there was substantial evidence that the defendant had consumed several beers in the hour before the accident, the defendant exhibited characteristics consistent with impairment, and the accident itself was consistent with erratic driving. The Commonwealth was not required to adduce more direct evidence of impairment, such as a field sobriety test or a blood test, as a reasonable inference that the defendant was intoxicated may "rest entirely on circumstantial evidence." Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010), quoting Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006).
2. The prosecutor's argument. We also discern no reversible error, under the circumstances, in the prosecutor's closing argument. While the defendant now challenges several of the prosecutor's statements, there was no objection raised to the closing argument at trial. Our review is accordingly for substantial risk of a miscarriage of justice. Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
While a prosecutor may "argu[e] 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), it is improper to misstate the evidence or to argue that inferences should be drawn from facts not in evidence. Id. at 516 n.2, citing Commonwealth v. Lamrini, 392 Mass. 427, 431-435 (1984). Also, a prosecutor "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). Nevertheless, a prosecutor's improper remark in closing argument as to a collateral issue "does not necessarily amount to reversible error." Commonwealth v. Resende, 476 Mass. 141, 155 (2017). We consider "whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error, and whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision." Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014), quoting Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Here, while the prosecutor made a couple of minor errors as to the facts in closing, those errors did not lead to a substantial risk of a miscarriage of justice. See Resende, 476 Mass. at 154-155. For example, the prosecutor should not have stated that "[i]t's not as if there's a bunch of other cars on the side of the road that are having these problems," when there was no evidence as to whether there were, or were not, such cars. Similarly, the prosecutor got the timeline wrong when she stated that the defendant did not complain of a medical condition until after Officer Hines asked him if he had been drinking. Neither of these facts were particularly material, however, in light of the evidence as a whole. Moreover, the jury were instructed, properly, that the arguments of counsel are not evidence. See Commonwealth v. Cassidy, 470 Mass. 201, 222 (2014) ("Any possible confusion that may have arisen was cured by the judge's charge to the jury that explained that the arguments of counsel are not evidence").
Finally, the prosecutor did not commit error in describing the defendant's behavior as "playing possum," nor did she commit error when she argued that the defendant's actions in leaving the hospital "prevented" further testing. The "prosecutor may argue zealously in support of inferences favorable to the Commonwealth's case," Commonwealth v. Carriere, 470 Mass. 1, 22 (2014), and here the "playing possum" argument was a fair inference from the facts. And while the defendant contends that the argument that the defendant prevented testing was an impermissible comment on the defendant's "refusal" to consent to a blood test, see G. L. c. 90, § 24 (1) (e), here the prosecutor's statement was a fair response to defense counsel's closing, where counsel emphasized several times that there was "no blood alcohol" test. See Fernandes, 478 Mass. at 741, citing Commonwealth v. Smith, 404 Mass. 1, 7 (1989). Given the defense argument, the prosecutor was permitted to point out that the hospital doctor had asked the defendant to stay for further testing, but the defendant had instead become angry, and left the hospital.
Judgment affirmed.
By the Court (Rubin, Desmond & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 18, 2020.