Opinion
20-P-71
09-23-2020
COMMONWEALTH v. SANDRA WILLIAM.
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
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. She appeals, claiming that the judge erred in admitting evidence of her refusal to submit to a field sobriety test and that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
The defendant was found responsible for a marked lanes violation.
Background. The jury could have found the following facts. On December 21, 2017, at approximately 2:20 A.M., Massachusetts State Police Sergeant Donald Gray saw a minivan make a very wide turn, cross over the painted center line, and travel in the wrong lane of travel, for several seconds, before swerving back into the correct lane. Gray pulled out behind the minivan and observed it slowly swerve left to right. Gray activated his emergency lights and pulled the minivan over. The defendant was driving the minivan; Melvin Nooks, the defendant's boyfriend, was in the front passenger seat.
Nooks testified that while at the pub, he drank several beers and witnessed the defendant have one mixed drink. He said that the duo left the pub at approximately 1:45 A.M. and that the defendant drove around a flowerbed, which caused her to pull out a little wide.
Gray observed that the defendant's eyes were red, glassy, and bloodshot. He smelled a strong odor of an alcoholic beverage coming from the minivan. The defendant told Gray that she had just left a pub where she had two mixed drinks. The defendant walked to the back of the minivan at Gray's request; she was unsteady on her feet and swayed a bit. Gray smelled a strong odor of an alcoholic beverage on the defendant's breath as she spoke. Gray turned the investigation over to Trooper Bryan Caccamo, who had arrived on the scene.
Caccamo detected a strong odor of an alcoholic beverage as he spoke with the defendant. He noted that her speech was slurred, and that her eyes were glassy and bloodshot. The defendant told Caccamo that she was coming from a pub and had two mixed drinks. The defendant agreed to perform the nine-step walk and turn field sobriety test. Caccamo demonstrated the test for the defendant, and gave her verbal instructions on how to perform the test. Prior to attempting the test, the defendant did not say that she had any injuries or defects that would prevent her from performing it. She was unable to accurately perform the test. She explained that she was off balance due to her wedged sneakers. Caccamo told the defendant that she could remove her sneakers, which she declined to do. Based on his observations, Caccamo formed the opinion that the defendant was drunk and placed her under arrest. While transporting her to the barracks, Caccamo smelled a strong odor of an alcoholic beverage in the cruiser that had not been there prior to the defendant being placed in it. While in the booking room with the defendant, Caccamo smelled an odor of an alcoholic beverage that had not been present in the room earlier in the night.
The defendant also told Caccamo that she was taking Vicodin for fibromyalgia.
Discussion. 1. Field sobriety test. The defendant contends that it was error for the jury to hear evidence of her refusal to take a second field sobriety test. This claim is belied by the record. Out of the hearing of the jury, the prosecutor told the judge that the defendant refused to perform a second field sobriety test, claiming that her shoes caused her to be off balance. The judge ruled that the prosecutor could only elicit testimony that the defendant claimed to be off balance due to her shoes, but not that she refused to take a second test. Consistent with this ruling, Caccamo testified that after the defendant unsuccessfully completed the walk and turn test, the defendant said she was off balance due to her wedged sneakers.
The Commonwealth contends that the defendant did not preserve this issue because portions of the transcripts are inaudible and it is the appellant's responsibility to provide an adequate record for review. See Commonwealth v. Woody, 429 Mass. 95, 97 (1999). The defendant responds that when reviewing the totality of the transcript, she preserved this issue. We need not resolve this dispute as under either standard of review, the result is the same.
It is well settled that a defendant's refusal to submit to a field sobriety test is inadmissible at trial. Commonwealth v. Healy, 452 Mass. 510, 513 (2008). Here, the statement that the defendant was off balance due to her wedged sneakers was properly admitted as an expression of her inability to perform the test. See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778-779 (2013) ("Once the defendant agrees to take the test and attempts it . . . expressions of difficulty or inability to perform or to complete it . . . are not the products of compulsion and thus are admissible"). Indeed, the jury heard no evidence of a second test or a refusal to take any test. Contrast Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 60-62 (1998) (defendant's statement he could not perform test was inadmissible refusal evidence). There was no error.
The prosecutor referred to the walk and turn test as the "first test." We conclude that this one brief comment, to which the judge sustained the defendant's objection, is not tantamount to the jury hearing evidence of a second test.
2. Closing argument. The defendant next claims that the prosecutor impermissibly argued facts not in evidence in her closing argument. As the defendant did not object to this portion of the closing argument, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Ahern, 96 Mass. App. Ct. 197, 202 (2019). The challenged statements were based upon the evidence at trial, and the reasonable inferences drawn therefrom. Furthermore, the lack of an objection is "some indication that the tone [and] manner . . . of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Lyons, 426 Mass. 466, 471 (1998), quoting Commonwealth v. Mello, 420 Mass. 375, 380 (1995). In considering the totality of the closing argument, and the judge's instructions to the jury that closing arguments are not evidence, there was no error, let alone a substantial risk of a miscarriage of justice. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 189-190 (2009).
The defendant takes issue with the prosecutor's argument that the defendant "had at least two [drinks]" and that "[s]he could've had more."
Judgment affirmed.
By the Court (Blake, Massing & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 23, 2020.