Opinion
No. 14–P–1503.
07-21-2016
COMMONWEALTH v. Antonio VASQUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Boston Municipal Court, the defendant was convicted of negligent operation of a motor vehicle. , On appeal, the defendant claims the prosecutor's reference to facts not in evidence during his closing argument created a substantial risk of a miscarriage of justice. We affirm.
The jury acquitted the defendant of several firearm offenses charged in the criminal complaint. During sentencing, the judge found the defendant responsible for a civil violation of G.L. c. 90, § 17 (speeding).
The defendant was tried with codefendant Joel Martinez, who does not appeal.
In closing argument, the prosecutor stated in relevant part: “[The police officer] then sees [the defendant]'s car flying by on a public way over [fifty] miles an hour nearly clipping him. That's the negligent operation right there. Admittedly intoxicated, observed to be intoxicated, alcohol in the car, swerving driving.” “Because the defendant did not object to these statements at trial, we review to determine whether [the errors, if any,] created a substantial risk of a miscarriage of justice.” Commonwealth v. Joyner, 467 Mass. 176, 188 (2014).
1. Speed. The defendant asserts it was improper for the prosecutor to argue he was “traveling over [fifty] miles an hour” where a police officer had testified that he was driving “about [fifty] miles an hour.” We disagree. The prosecutor's remark was a fair inference from the evidence provided by the officer. See Commonwealth v. Smith, 456 Mass. 476, 487 (2010) (a prosecutor may argue any inferences that may be fairly drawn from the evidence). It was proper for the prosecutor to paraphrase some of the police officer's testimony. See Commonwealth v. Delacruz, 443 Mass. 692, 695 (2005). There was no error. Even if there were some inaccuracy, it was slight. Moreover, the judge properly instructed the jury that they are to decide the facts solely from the evidence and, further, that closing arguments are not a substitute for evidence.
2. Swerving. The defendant next contends the prosecutor impermissibly argued that the defendant was “swerving” his vehicle. We again see no error. The officer testified that he was driving down a street consisting of one lane in each direction and he “had to swerve to [his] right to avoid being hit” by the defendant's vehicle. The jury could reasonably infer from the officer's testimony that the defendant's vehicle had swerved into the opposite lane of traffic. The prosecutor did not err by “analyz[ing] the evidence and suggest [ing] what reasonable inferences the jury should draw from that evidence.” Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015), quoting from Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992).
3. Intoxication. Finally, the defendant, who was not charged with operating a motor vehicle while under the influence of intoxicating liquor, contends the record is devoid of evidence that he was “[a]dmittedly intoxicated [and] observed to be intoxicated,” as argued by the Commonwealth in its closing. Assuming, without deciding, the challenged remark was made in error, we are satisfied that there was no risk of a miscarriage of justice. “A defendant's challenge to a specific part of the closing argument is analyzed in ‘the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.’ “ Commonwealth v. Shanley, 455 Mass. 752, 773 (2010), quoting from Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Viewing the prosecutor's remark in the context of his lengthy closing argument, the reference was fleeting and therefore “not likely to influence, or even to seize the attention of the jury.” Commonwealth v. Cunneen, 389 Mass. 216, 223–224 (1983).
The Commonwealth contends the defendant waived this issue by failing to produce a transcript of the entire trial testimony. While that argument has some heft, we need not address it as, assuming error, we have concluded there is no substantial risk of a miscarriage of justice.
Further, the judge properly instructed the jury that they were “the sole and the exclusive judges of the facts.” He also instructed the jury “to decide what the facts are solely from the evidence that has been admitted in this case and not from suspicion or conjecture.” Of further importance here, the judge cautioned the jury that “[t]he opening statements and the closing statements of the attorneys ... are not a substitute for evidence.” The jury are presumed to have followed the judge's instructions. See, e .g., Commonwealth v. Auclair, 444 Mass. 348, 360 (2005). We discern no error.
Judgment affirmed.