Opinion
18-P-1581
09-03-2019
COMMONWEALTH v. Chris S. WOODIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Chris S. Woodin, appeals from his convictions of operating under the influence and negligent operation of a motor vehicle. Woodin claims that the judge's failure to excuse a jury member for cause and the prosecutor's improper closing argument, warrant a new trial. We affirm.
Woodin was also found responsible for several civil infractions.
Background. 1. Facts surrounding the arrest. Officer Adam Paicos of the Erving police department was on patrol when he observed a car run a stop sign at a high rate of speed. Paicos pulled the car over and identified the driver as Woodin. During his initial conversation with Woodin, Paicos detected an odor of alcohol and observed that Woodin's eyes were bloodshot and glassy and his speech was slurred. Paicos asked Woodin if he had anything to drink that night, to which Woodin replied that he had three beers about thirty minutes ago.
Paicos performed field sobriety tests. During these tests, Woodin appeared off-balance, swayed backward, had trouble focusing, and could not keep his head still. For example, in one of the tests, Woodin was asked to raise his foot six inches off the ground for thirty seconds. Woodin had to make several attempts to keep his foot raised and was only able to count up to four before losing his balance. Based on his observations, Paicos formed the opinion that Woodin was under the influence of intoxicating liquor and placed him under arrest. During his booking at the police station, Woodin called his girlfriend and told her that he had "not even a six pack ... I wasn't even sloshed."
Paicos was equipped with a body camera and his cruiser also had a dashboard camera. These videos were played for the jury and submitted in evidence.
This conversation was recorded on video and also shown to the jury at trial and submitted in evidence.
2. Jury venire. During the jury venire, juror 17 raised her hand in response to a question regarding whether she or a family member has ever been involved with an Alcoholics Anonymous program, and explained that her father was an alcoholic. When asked whether she would be able to follow the legal definition of operating a motor vehicle under the influence of alcohol, "without succumbing to any personal feelings," juror 17 answered, "yes." The following exchange then took place:
DEFENSE COUNSEL : "Hi. If you hear that a person had a few drinks before driving, would that affect your ability to remain fair and impartial and listen to all the evidence?"
JUROR 17: "Oh, I would listen to the evidence. I would still make the judgment that the person was foolish or .... Excuse me, I'm losing my voice. I would be able to be fair and listen, although I would pre-judge that person as having poor judgment for taking a few drinks and getting behind the wheel. I mean, I would -- but I would listen."
When asked if she could separate the issue of poor judgment versus guilt, juror 17 answered, "yes." Having used all of his peremptory challenges, defense counsel moved to dismiss juror 17 for cause, which the judge denied based on the fact that juror 17 "indicated quite clearly that she could distinguish between finding somebody foolish and finding somebody guilty." Accordingly, juror 17 was seated on the jury and deliberated in Woodin's case.
Discussion. 1. Impartial jury. Woodin claims that he was denied his right to an impartial jury because the judge refused to excuse juror 17 for cause. We disagree.
"Article 12 [of the Massachusetts Declaration of Rights] and the Sixth Amendment [to the United States Constitution], applied to the States through the due process clause of the Fourteenth Amendment [to the United States Constitution], guarantee the right of a criminal defendant to a trial by an impartial jury." Commonwealth v. Long, 419 Mass. 798, 802 (1995). "A trial judge is accorded considerable discretion in the jury selection process and his finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest." Commonwealth v. Clark, 446 Mass. 620, 629-630 (2006).
Contrary to Woodin's argument, juror 17 was unequivocal in responding to the judge that she could be fair and impartial. Although she initially stated that she would "pre-judge" a person who drives after a few drinks as having poor judgment, the judge further inquired whether juror 17 could set aside this opinion. Juror 17 responded that she would listen to the evidence and be able to separate poor judgment versus guilt. Through her response, juror 17 indicated that despite her "life experiences and resulting beliefs" she would be "able to listen to the evidence and apply the law as provided by the judge." Commonwealth v. Williams, 481 Mass. 443, 446 (2019). See Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 809 (2018). Therefore, unlike the juror at issue in Long, the judge's further questioning of juror 17 showed that she could hear the case impartially. Contrast Long, 419 Mass. at 804 (juror's statement that he would "do his best" and "hoped" he could decide case fairly was not unequivocal statement of impartiality). After seating the jury, the judge also asked if there was "anything that has come to your minds since we began this discussion earlier that you now realize would affect your ability to be fair and impartial in this case and follow my instructions on the law?" Juror 17 did not raise her hand.
Whether to accept juror 17's declaration that she was disinterested was in the broad discretion of the trial judge, Commonwealth v. Leahy, 445 Mass. 481, 495 (2005), as he was able to see juror 17's demeanor and assess her credibility. See Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 272 (2002). Accordingly, "[w]here, as here, the judge who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion." Commonwealth v. Ascolillo, 405 Mass. 456, 461 (1989), quoting Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978). See Jaime J., supra at 274 ("a judge is not required to excuse a juror or allow challenge for cause simply because the juror reveals a potential bias upon initial questioning").
We also disagree with Woodin's argument that the prosecutor focused on this bias during his closing argument simply because he highlighted the fact that a person does not need to be drunk in order to be operating under the influence.
2. Prosecutor's closing argument. We review under the "substantial risk of a miscarriage of justice" standard, Woodin's claims of error regarding the prosecutor's closing argument, to which no objection was made or curative instruction requested. Commonwealth v. Jones, 471 Mass. 138, 148 (2015).
First, Woodin maintains that the prosecutor improperly appealed to the jury's sympathy during his closing argument. We conclude that the statements identified by Woodin were not improper appeals to sympathy and emotion but rather were comments based on the evidence.
These statements are: (1) that it was "a really good thing that there was nobody passing by that intersection when [Woodin] went through the stop sign ... good thing there was no crash"; (2) "there is no I'm a big guy exception to the OUI statute"; (3) "You drink three beers in a half an hour to get somewhere, to get yourself into a certain place. He wanted to be feeling a certain way"; (4) "Do you think Chris Woodin was a safer, better driver after three -- six beers than he would have been with none?"
For example, Woodin's size came up multiple times during trial. Defense counsel asked Paicos during cross-examination if he agreed that Woodin was a "kind of a big guy" and brought up Woodin's "big" size in his closing argument. In the body camera video, Woodin tells the officer that he is "almost 250 pounds and six-foot three, so really I'm not drunk." In the booking video, Woodin tells his girlfriend over the phone: "I didn't even have a six pack and I'm six-foot three and 250 pounds." The prosecutor was responding to this evidence when he referenced Woodin's size, and therefore was "entitled to ‘comment on the trial tactics of the defence,’ and to respond to the defendant's closing argument." Chambers, 93 Mass. App. Ct. at 822, quoting Commonwealth v. Grimshaw, 412 Mass. 505, 507 (1992). See Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002) (prosecutor may use closing argument to respond to defense counsel's characterization of evidence). Further, " ‘[e]nthusiastic rhetoric, strong advocacy, and excusable hyperbole’ are not grounds for reversal." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998), quoting Commonwealth v. Sanna, 424 Mass. 92, 107 (1997).
The prosecutor was also responding to defense counsel's closing when he suggested that it was a "good thing" no one else was on the road when Woodin ran through a stop sign. This comment can also be seen as an attempt to highlight the fact that an accident does not need to occur in order for a person to drive negligently. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004). Although this comment may have been better left unsaid, "in the context of the entire argument, [the statement] was not improper." Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 326 (2001). The remainder of the prosecutor's statements challenged by Woodin did not improperly appeal to the jury's emotions.
In his closing argument, defense counsel stated that there were "no other cars around, no pedestrians, no other car to swerve out of the way, nothing along those lines."
Second, Woodin contends that the prosecutor's comment that someone, in the future, may ask the jury what the trial was about, and the jury "might reflexively say, oh, it was a drunk driving or maybe I was on a drunk driving case ten years ago and that's commonly how people refer to it," improperly suggested to the jury that they would have to answer to the community for their decision. The prosecutor, however, did not tell, or suggest, to the jury that they were "the conscience of the community." Commonwealth v. Mathews, 31 Mass. App. Ct. 564, 572 (1991). Rather, the prosecutor was focusing on the difference between "drunk driving," a common term used in the community, "buzzed driving," and "impaired driving." Although the community typically associates "drunk driving" with operating under the influence, "[t]he Commonwealth is not required to prove that the defendant was drunk" for an operating under the influence conviction. Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988). See Commonwealth v. Connolly, 394 Mass. 169, 172 (1985).
Indeed, the judge instructed the jury that "[s]omeone does not have to be drunk to be under the influence of alcohol."
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In any event, we are confident that the prosecutor's argument did not have an impact on the verdicts. Closing argument is argument, not evidence, and jurors are presumed to be capable of discounting excessive claims. The judge in this case directly instructed the jurors not to credit statements made by counsel if such statements did not coincide with the jurors' recollection of the evidence, and that closing arguments are not evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). Moreover, the evidence against Woodin was strong, where the jury had videos of Woodin's appearance and demeanor on the night that he was arrested. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013) (no substantial risk of miscarriage of justice from prosecutor's improper remarks where evidence against defendant was strong). We conclude that the remarks created no substantial risk of a miscarriage of justice.
Judgments affirmed.