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10-P-821 (Mass. Dec. 21, 2011)




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.


After a jury trial in District Court, the defendant was convicted of (1) operating a motor vehicle under the influence of alcohol (G. L. c. 90, § 24[1] [a][1]); and (2) underage possession of liquor (G. L. c. 138, § 34C). On appeal, he argues that reversal is required by a combination of (a) misstatements in the Commonwealth's closing argument, (b) a police witness's reference to a breathalyzer, and (c) ineffective assistance by trial counsel. We disagree and therefore affirm.

Closing argument. The defendant did not lodge any objection to the prosecutor's closing argument until after the jury returned their verdict. Because he did not preserve his claims of error, we are left to consider only whether any errors created a substantial risk of a miscarriage of justice. For that standard to be met, there must be 'serious doubt whether the result of the trial might have been different had the error not been made.' Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). 'Errors of this magnitude are extraordinary events and relief is seldom granted.' Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), citing Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997). 'In analyzing a claim under the substantial risk standard, '[w]e review the evidence and the case as a whole." Id. at 297-298, quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

In his closing, the prosecutor referred to a bottle of an alcoholic beverage found in the defendant's car as 'open.' The prosecutor plainly misspoke when he made this passing reference, as the testimony of the arresting officer, the only witness at trial, was to the contrary. In response to a question posed by defense counsel on recross-examination, the officer testified: 'When [the bottle] was in the vehicle, sir, yes, it was sealed.' To reinforce the point, counsel asked, 'So it was a -- it wasn't an open bottle?' to which the officer responded, 'No, sir.' Counsel emphasized once more, 'It was a sealed bottle,' to which the officer responded, 'Yes, sir.' Having proven that point, counsel then stated, 'Nothing else, Judge.' Thus, the testimony on this issue was simple, direct, and unequivocal, and it was the very last evidence the jury heard. The judge instructed the jury that it was their recollection of the evidence that mattered, not any statements made in closing arguments. The prosecutor's misstatement was sufficiently obvious that we do not believe the jury were misled.

The defendant also argues that the prosecutor's closing argument exaggerated the evidence in other respects. Specifically, he points to statements that (a) the defendant 'blew through' the intersection, (b) the defendant operated his vehicle in an 'erratic' manner, and (c) the officer detected a 'strong' odor of alcohol emanating from the car. After the verdict, the judge admonished the prosecutor for 'push[ing] the envelope of fair comment,' but the judge also referred to such statements as not amounting to 'a substantial misstatement of fact,' and as 'aggressive but perhaps not unfair.' We agree with this assessment. For example, while the officer did not himself refer to the odor he detected as 'strong,' given that the officer could smell alcohol from outside the vehicle, it was not unreasonable for the prosecutor to characterize the smell as 'strong.' In any event, even if error, the prosecutor's characterization of the evidence did not create a substantial risk of a miscarriage of justice (whether the alleged errors are viewed alone or in combination with any other errors). In this regard, we note that while we agree with the defendant that the evidence of his guilt may not have been overwhelming, neither could it be characterized as 'thin.' Among other evidence, the defendant admitted to the arresting officer that he had been drinking, his speech was slurred, he was unsteady on his feet and 'swaying from side to side,' and he failed the two field sobriety tests he was given.

Reference to breathalyzer. The defendant also claims prejudice from a police witness's having mentioned that he had been 'trained in the breathalyzer.' Immediately, the judge sharply criticized the prosecutor at sidebar for having solicited that answer, and he (the judge) stated that he was 'shocked' that an experienced officer would have raised the issue. The judge denied the defendant's request for a mistrial, but issued a pointed curative instruction to the jury, emphasizing that there was 'no evidence of a breathalyzer in this case,' and that the subject of a breathalyzer 'should play no role in [their] deliberations.' The judge also issued a stern rebuke in front of the jury, commenting 'that it was entirely inappropriate for the prosecutor and for the witness to even raise that subject.' The defendant made no objection to this instruction.

Realizing the inherent difficulty of trying to instruct the jurors not to think about something, the judge settled upon a creative analogy. He compared breathalyzer evidence to deoxyribonucleic acid (DNA) evidence, suggesting that such evidence might be potentially helpful in other cases, but had no relevance to this case.

The defendant now raises the breathalyzer issue in arguing that the judge erred in not awarding a new trial pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The defendant concedes that the breathalyzer issue alone would not demonstrate that the judge abused his discretion, but the defendant argues that 'when considering this detrimental improper reference in combination with the multiple prejudicial improper closing statements, the prosecutor's seemingly reckless errors significantly compromised the integrity of the evidence at trial, such that a new trial should have been granted.' We disagree with this characterization and discern no abuse of discretion here. Although we share the trial judge's concern about an experienced police officer's even starting to raise the issue, the judge effectively was able to address the problem before any substantial harm was done.

The only reference to a breathalyzer came in relation to the officer's training (as opposed to any testimony that the defendant was offered and refused to take such a test). Given common knowledge that such tests exist, the officer's statement that he had been trained in this area might not have added any appreciable substance to the jury's background knowledge.

Ineffective assistance. The defendant argues that his trial counsel was ineffective in soliciting testimony from the police officer that the defendant's eyes were 'red' and 'glassy.' Counsel went on to solicit that there were many other possible explanations for the state of the defendant's eyes. It seems evident from the particular manner in which counsel broached the issue that he mistakenly thought that the officer had testified about the defendant's eyes on direct. Assuming arguendo that counsel's mistake fell 'measurably below that which might be expected from an ordinary fallible lawyer,' we conclude that the defendant has not shown that any incremental damage rose to the level of depriving him 'of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The same is true of the other alleged errors by counsel.

Judgments affirmed.

By the Court (Trainor, Milkey & Agnes, JJ.),