Opinion
10-P-1414
12-21-2011
COMMONWEALTH v. DANIEL W. MOWRY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions of operating a motor vehicle under the influence of intoxicating liquor (fourth offense), G. L. c. 90, § 24(1)(a)(1), and negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a), prior to St. 2010, c. 155, § 11.
Discussion.
The defendant argues that the prosecutor's questions and closing argument about the defendant's postarrest silence were improper. We agree. Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 911 (2009) ('A defendant's postarrest silence in response to police questioning may not be used against him. . . . The fact that the defendant's silence was in connection with booking questions makes no difference'). 'Nor can a prosecutor comment on a defendant's failure to 'spontaneously volunteer' that he is innocent.' Commonwealth v. Andujar, 57 Mass. App. Ct. 529, 536 (2003) (Andujar) (citation omitted). We are not persuaded that the defendant waived his right to remain silent because he engaged in unspecified 'small talk' with the booking officer.
The prosecutor asked the defendant the following questions regarding statements that he made while he was in police custody being booked:
Commonwealth: 'And how many - you told the lieutenant you weren't driving, right?'
. . .
Defendant: 'I don't know. I just was going to wait till I had seen a lawyer because then I knew that I was in deep, deep shit because I was being arrested.'
. . .
Commonwealth: 'So an hour went by. You must have said something to the lieutenant. 'Hey this is a mistake. I wasn't even driving.' You must have said that, right?'
Defendant: 'Yeah. There was small talk like that.'
Commonwealth: 'Small talk. Tell the jury what did you say about that?'
Defendant: 'I don't recall.'
Additionally, the prosecutor asked Officer Richard Pierce whether the defendant commented on his innocence:
Commonwealth: 'Officer Pierce, directing your attention to when you stopped the motor vehicle, during the course of the stop, did the defendant ever say to you that he wasn't driving that night?'
Officer Pierce: 'I don't recall.'
In closing argument, the Commonwealth argued the following:
'Defendant is now asked by the police. 'Do I tell the police I was driving?' What does Officer Pierce say? It isn't mentioned anywhere. Well clearly in the booking - the booking process took an hour. Do you say anything to the booking officer? 'No, we just made small talk?' He's been falsely arrested for a crime. He didn't do this and he says what? Small talk and he says this a couple of times. Imagine a reasonable person, someone who has been falsely arrested to not say anything? They would have you believe he simply said nothing.'
The defendant's testimony about the content of this 'small talk' was ambiguous. See note 1, supra. We therefore reject the Commonwealth's argument that the defendant 'testified that he made 'small talk' concerning his not driving.'
'Because there was no objection to either the cross-examination or the closing argument, we consider whether the error created a substantial risk of a miscarriage of justice. A substantial risk of a miscarriage of justice exists if we have a serious doubt whether the result of the trial might have been different had the error not been made.' Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 544 (2006) (Ewing) (citations omitted), S. C., 449 Mass. 1035 (2007). We note first that an '[i]mpermissible comment upon a defendant's right to remain silent is 'so egregious that reversal is the norm, not the exception," Andujar, 57 Mass. App. Ct. at 537, quoting from Commonwealth v. King, 34 Mass. App. Ct. 466, 469 (1993). Moreover, the prosecutor's improper questions and comments went to the heart of the defense, which focused on the defendant's claims that he was not the operator of the vehicle. Ewing, 67 Mass. App. Ct. at 545. It was the prosecutor who introduced the improper line of argument at trial. Contrast Commonwealth v. Adams, 434 Mass. 805, 815 (2001). Furthermore, the judge did not give curative instructions after the prosecutor's improper questioning or closing argument. Ewing, supra at 545. While no such instruction was requested, the judge did not remind the jury that closing arguments are not evidence during his jury charge. See ibid. We conclude that this cumulation of error -- against the backdrop that reversal is the norm rather than the exception where there was impermissible comment on the defendant's silence -- resulted in a substantial risk of a miscarriage of justice .
Prior to opening arguments, the trial judge did instruct the jury that 'closing arguments of the attorneys . . . are not evidence.'
In light of our disposition, we need not address the defendant's claim that the evidence was insufficient to establish a prior Rhode Island OUI offense.
Judgments reversed.
Verdicts and finding set aside.
By the Court (Mills, Katzmann & Milkey, JJ.)