Opinion
14-P-1546
11-13-2015
COMMONWEALTH v. LAURA L. LASORSA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a jury trial in District Court, the defendant was convicted of operating a motor vehicle under the influence of liquor. Immediately before trial, the defendant filed a motion to dismiss, alleging violation of her right to a speedy trial. On appeal, the defendant claims error in the denial of that motion, in the denial of her request for a mistrial, and in the prosecutor's closing argument. We affirm.
After a bench trial, the trial judge found the defendant guilty of operating under the influence, second offense.
1. Opinion testimony. At trial, the prosecutor asked one of the arresting officers if he had "form[ed] an opinion as to the defendant's intoxication." That question was proper. See Commonwealth v. Canty, 466 Mass. 535, 542 (2013). However, in response, the officer stated: "I believe that she was intoxicated and impaired while operating her vehicle." The defendant objected and moved to strike this answer. See ibid. at 542-543 (police officer may not opine whether a defendant's intoxication impaired her ability to operate a motor vehicle, because such testimony too closely resembles an opinion on the defendant's guilt). The judge sustained the defendant's objection, allowed her motion to strike, and immediately and forcefully instructed the jury to disregard the stricken testimony. With such correctives in place, the judge denied the defendant's motion for a mistrial. The judge did not abuse her discretion in doing so. See Commonwealth v. Isabelle, 444 Mass. 416, 420 (2005) (jurors "are presumed to follow instructions to disregard testimony").
The judge instructed the jury to "disregard the answer to that last question . . . . Strike it out of your minds completely." She also reiterated in her final instructions that stricken testimony is not evidence, and may not be considered in deliberations.
2. Closing argument. In closing, the prosecutor stated that the officers "formed the opinion . . . that [the defendant] was operating her car under the influence of alcohol." Defense counsel did not object, and our review is therefore limited to whether this passing statement "caused a substantial risk of a miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8, 20 (1999).
We agree with the defendant that the prosecutor erred in referring to police officers having formed the opinion that the defendant had driven while under the influence. After all, the relevant opinion testimony had been stricken (and properly so). However, we discern no substantial risk that this error caused a miscarriage of justice. See ibid. The Commonwealth presented extremely strong evidence of the defendant's intoxication, and it is uncontested that she had been driving her vehicle just before the police came upon her at the scene of a roadside accident. Indeed, the defendant admitted to police that she had drunk "a lot," and when asked to recite the alphabet could come up with only "A," "B," and "D." In light of the strength of the Commonwealth's case, and the judge's plain instructions that it was for the jury, and them alone, to determine the defendant's guilt, the defendant has supplied insufficient grounds to disturb the jury's verdict. Compare Canty, 466 Mass. at 545 (finding no prejudicial error with regard to admission of improper opinion evidence where testimony of police officers presented overwhelming evidence of intoxication).
The prosecutor also suggested that both officers had stated such an opinion when only one was asked about this. To the extent that the jury could have inferred that the officers believed that the defendant was guilty based on the fact that they had arrested her, it still was improper for the prosecutor to focus on this.
The trial judge's instructions on opinion evidence read:
"Now, in this trial you've had opinion testimony. Merely because someone expresses an opinion does not mean you must accept that opinion. It's up to you to decide whether to rely on it; you may accept it or reject it and give it as much weight as you determine it deserves. . . . Now, again, you've heard . . . opinions about the defendant's sobriety. . . . In the end you and you alone must decide whether the defendant was under the influence of intoxicating liquor."
3. Speedy trial. It is undisputed that trial did not commence until February 11, 2014, which was 676 days after the defendant's arraignment. The defendant acknowledges that 183 days of those days (from December 12, 2012 to June 12, 2013) can be excluded for purposes of determining whether she was afforded her speedy trial rights pursuant to Mass.R.Crim.P. 36, 378 Mass. 909 (1978). Conversely, the Commonwealth does not dispute that 276 of the 676 total days constituted "includable" time under the rule. The dispute is over the remaining 217 days, the period between July 9, 2013 (the original trial date), and February 11, 2014 (the day that the defendant's trial was held).
The record indicates that trial did not go forward on July 9, 2013, because the defendant had not yet been able to obtain a transcript of a pretrial evidentiary hearing that she wanted to be able to use at trial. The trial was therefore rescheduled for October 15, 2013. We agree with the Commonwealth that the time caused by this postponement (ninety-eight days) is excludable under rule 36, because the continuance at issue benefitted the defendant. See Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 424-425 (2008) (where defendant is at least partially responsible for delay or has acquired some benefit, speedy trial right not implicated).
On the rescheduled date, the case was held for jury trial, but was postponed due to court congestion. No objection by the defendant appears on the record. We agree with the Commonwealth that the lack of any objection renders this time (119 days) excludable as well. See Commonwealth v. Denehy, 466 Mass. 723, 731 (2014) (excluding continuances caused by court congestion and lack of available judges or jurors, where defendant also failed to object).
Denehy was published after the defendant's motion to dismiss was denied. However, Denehy at most merely clarified the law, and -- contrary to the defendant's contention -- there is nothing to suggest that that case intended to establish a rule of only prospective effect.
Because we agree with the Commonwealth that the periods in dispute should be excluded under rule 36, and the defendant was brought to trial within 276 includable days of her arraignment, the defendant's motion to dismiss was properly denied.
There is no merit to the defendant's separate speedy trial claim based on State or Federal constitutional law, or to any of the defendant's remaining arguments.
Judgment affirmed.
By the Court (Katzmann, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 13, 2015.