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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1137
COMMONWEALTH
vs.
CAROL A. CARCHIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
operating a motor vehicle while under the influence of
intoxicating liquor (OUI). On appeal, the defendant claims that
the admission of certain evidence violated her constitutional
privilege against self-incrimination and that the prosecutor's
closing argument created a substantial risk of a miscarriage of
justice. We affirm.
Discussion. The defendant claims that evidence of her
nonresponsive answers to the arresting officer's questions
amounted to impermissible evidence of her refusal to submit to
field sobriety tests. As a result, the admission of this
"sanitized" refusal evidence violated her privilege against
self-incrimination under art. 12 of the Massachusetts
Declaration of Rights. We disagree. The privilege against self-incrimination of art. 12
prohibits the admission of evidence that a defendant refused to
submit to a field sobriety test. See Commonwealth v. McGrail,
419 Mass. 774, 780 (1995). "[A]llowing such refusal evidence to
be admissible at trial would compel defendants to choose between
two equally unattractive alternatives: 'take the test and
perhaps produce potentially incriminating real evidence; refuse
and have adverse testimonial evidence used against him at
trial.'" Id., quoting Opinion of the Justices, 412 Mass. 1201,
1211 (1992).
Here, however, the judge excluded any reference to field
sobriety tests, as well as the fact that the officers repeatedly
asked the defendant if she was going to comply with the testing
without receiving a responsive answer. 1 Thus, the jury had no
way of knowing that the defendant's attempts to redirect the
conversation and lack of responsive answers amounted to a
refusal of such testing. Refusal evidence was simply not before
the jury.
Rather, the jury only heard that an officer asked "further
questions" of the defendant; that "[s]he either would start to
talk to [the other officer] or talk about something different, a
1 The judge even went so far as to prohibit the prosecutor from eliciting testimony from the officer that the training he received on OUI cases specifically included training on field sobriety tests.
2 different topic"; and that this went on for the "[n]umerous
amount of times that [he] asked." This does not amount to
"testimonial evidence which reveals a person's knowledge or
thoughts concerning some fact," Opinion of the Justices, 412
Mass. at 1208, particularly in light of the other evidence
indicating that in response to other questions posed by the
officers, the defendant was "talking in and out"; "had slurred
speech"; and "was difficult to understand at times," such that
the officers had trouble holding a conversation with her. The
evidence actually before the jury concerned the officers'
observations of signs of impairment that were made during their
interactions with the defendant at the scene. See Commonwealth
v. Hampe, 419 Mass. 514, 523 (1995). This was proper.
The defendant also claims that the prosecutor made improper
remarks in his closing argument, which include that: (1) the
defendant "was really close to doing the right thing, real
close"; (2) "[r]eal close didn't quite get all the way there";
(3) "when the officers were asking her questions and couldn't
get a straight answer, does that have anything to do with
stomach issues or anything to do [with what] you're going to
read in these [medical records]"; and (4) "[s]he knew she
shouldn't have been driving." Because the defendant did not
object to the claims she now raises on appeal, we review to
3 determine whether there was error, and if so, whether it created
a substantial risk of a miscarriage of justice.
To determine whether the prosecutor's closing argument
created a substantial risk of a miscarriage of justice, and
keeping in mind that "[e]rrors of this magnitude are
extraordinary events and relief is seldom granted," Commonwealth
v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions:
"(1) Was there error? (2) Was the defendant prejudiced by the
error? (3) Considering the error in the context of the entire
trial, would it be reasonable to conclude that the error
materially influenced the verdict? (4) May we infer from the
record that counsel's failure to object or raise a claim of
error at an earlier date was not a reasonable tactical
decision?" Id. at 298 (citations omitted). "Only if the answer
to all four questions is 'yes,' may we grant relief." Id. See
Commonwealth v. Russell, 439 Mass. 340, 345 (2003); Commonwealth
v. Coutu, 88 Mass. App. Ct. 686, 693 (2015).
The defendant claims that the prosecutor's statements urged
the jury to draw impermissible consciousness of guilt inferences
from the sanitized evidence and were unsupported by the trial
evidence. We disagree. The first two challenged remarks, i.e.,
almost "doing the right thing," related to the defendant pulling
her car over to the side of the road, but not fully succeeding
because she fell asleep and did not turn the car off. The
4 fourth challenged remark, i.e., arguing that the defendant
"knew" she should not be driving was implied by her choice to
pull over and stop driving. The third challenged remark, also
based on the evidence, was the prosecutor's request for the jury
to employ their common sense to determine whether the
defendant's slurred speech and inability to answer questions was
because of her medical issues or because she was impaired by the
alcohol she had consumed.
Even if, as the Commonwealth acknowledges, these statements
would have been better left unsaid, the defendant is not
entitled to relief. "The prosecutor's language, [even if] ill-
chosen, was not so rousing or inflammatory as to sweep the jury
beyond rational examination of the evidence." Commonwealth v.
Lassiter, 80 Mass. App. Ct. 125, 132 (2011). In the context of
the entire argument, the statements "amount to little more than
enthusiastic rhetoric, strong advocacy, and excusable
hyperbole." Commonwealth v. Costa, 414 Mass. 618, 629 (1993).
Additionally, a jury instruction providing that closing argument
is not evidence, as was provided by the judge here, "may
mitigate any prejudice in the final argument." Commonwealth v.
Kozec, 399 Mass. 514, 517 (1987). Jurors are presumed to follow
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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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1137
COMMONWEALTH
vs.
CAROL A. CARCHIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
operating a motor vehicle while under the influence of
intoxicating liquor (OUI). On appeal, the defendant claims that
the admission of certain evidence violated her constitutional
privilege against self-incrimination and that the prosecutor's
closing argument created a substantial risk of a miscarriage of
justice. We affirm.
Discussion. The defendant claims that evidence of her
nonresponsive answers to the arresting officer's questions
amounted to impermissible evidence of her refusal to submit to
field sobriety tests. As a result, the admission of this
"sanitized" refusal evidence violated her privilege against
self-incrimination under art. 12 of the Massachusetts
Declaration of Rights. We disagree. The privilege against self-incrimination of art. 12
prohibits the admission of evidence that a defendant refused to
submit to a field sobriety test. See Commonwealth v. McGrail,
419 Mass. 774, 780 (1995). "[A]llowing such refusal evidence to
be admissible at trial would compel defendants to choose between
two equally unattractive alternatives: 'take the test and
perhaps produce potentially incriminating real evidence; refuse
and have adverse testimonial evidence used against him at
trial.'" Id., quoting Opinion of the Justices, 412 Mass. 1201,
1211 (1992).
Here, however, the judge excluded any reference to field
sobriety tests, as well as the fact that the officers repeatedly
asked the defendant if she was going to comply with the testing
without receiving a responsive answer. 1 Thus, the jury had no
way of knowing that the defendant's attempts to redirect the
conversation and lack of responsive answers amounted to a
refusal of such testing. Refusal evidence was simply not before
the jury.
Rather, the jury only heard that an officer asked "further
questions" of the defendant; that "[s]he either would start to
talk to [the other officer] or talk about something different, a
1 The judge even went so far as to prohibit the prosecutor from eliciting testimony from the officer that the training he received on OUI cases specifically included training on field sobriety tests.
2 different topic"; and that this went on for the "[n]umerous
amount of times that [he] asked." This does not amount to
"testimonial evidence which reveals a person's knowledge or
thoughts concerning some fact," Opinion of the Justices, 412
Mass. at 1208, particularly in light of the other evidence
indicating that in response to other questions posed by the
officers, the defendant was "talking in and out"; "had slurred
speech"; and "was difficult to understand at times," such that
the officers had trouble holding a conversation with her. The
evidence actually before the jury concerned the officers'
observations of signs of impairment that were made during their
interactions with the defendant at the scene. See Commonwealth
v. Hampe, 419 Mass. 514, 523 (1995). This was proper.
The defendant also claims that the prosecutor made improper
remarks in his closing argument, which include that: (1) the
defendant "was really close to doing the right thing, real
close"; (2) "[r]eal close didn't quite get all the way there";
(3) "when the officers were asking her questions and couldn't
get a straight answer, does that have anything to do with
stomach issues or anything to do [with what] you're going to
read in these [medical records]"; and (4) "[s]he knew she
shouldn't have been driving." Because the defendant did not
object to the claims she now raises on appeal, we review to
3 determine whether there was error, and if so, whether it created
a substantial risk of a miscarriage of justice.
To determine whether the prosecutor's closing argument
created a substantial risk of a miscarriage of justice, and
keeping in mind that "[e]rrors of this magnitude are
extraordinary events and relief is seldom granted," Commonwealth
v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions:
"(1) Was there error? (2) Was the defendant prejudiced by the
error? (3) Considering the error in the context of the entire
trial, would it be reasonable to conclude that the error
materially influenced the verdict? (4) May we infer from the
record that counsel's failure to object or raise a claim of
error at an earlier date was not a reasonable tactical
decision?" Id. at 298 (citations omitted). "Only if the answer
to all four questions is 'yes,' may we grant relief." Id. See
Commonwealth v. Russell, 439 Mass. 340, 345 (2003); Commonwealth
v. Coutu, 88 Mass. App. Ct. 686, 693 (2015).
The defendant claims that the prosecutor's statements urged
the jury to draw impermissible consciousness of guilt inferences
from the sanitized evidence and were unsupported by the trial
evidence. We disagree. The first two challenged remarks, i.e.,
almost "doing the right thing," related to the defendant pulling
her car over to the side of the road, but not fully succeeding
because she fell asleep and did not turn the car off. The
4 fourth challenged remark, i.e., arguing that the defendant
"knew" she should not be driving was implied by her choice to
pull over and stop driving. The third challenged remark, also
based on the evidence, was the prosecutor's request for the jury
to employ their common sense to determine whether the
defendant's slurred speech and inability to answer questions was
because of her medical issues or because she was impaired by the
alcohol she had consumed.
Even if, as the Commonwealth acknowledges, these statements
would have been better left unsaid, the defendant is not
entitled to relief. "The prosecutor's language, [even if] ill-
chosen, was not so rousing or inflammatory as to sweep the jury
beyond rational examination of the evidence." Commonwealth v.
Lassiter, 80 Mass. App. Ct. 125, 132 (2011). In the context of
the entire argument, the statements "amount to little more than
enthusiastic rhetoric, strong advocacy, and excusable
hyperbole." Commonwealth v. Costa, 414 Mass. 618, 629 (1993).
Additionally, a jury instruction providing that closing argument
is not evidence, as was provided by the judge here, "may
mitigate any prejudice in the final argument." Commonwealth v.
Kozec, 399 Mass. 514, 517 (1987). Jurors are presumed to follow
such instructions. See Commonwealth v. Pope, 406 Mass. 581, 588
(1990).
5 Moreover, considering the challenged remarks within the
context of the entire trial, they merely highlighted the
compelling evidence of the defendant's impairment, including
that the officers found her slouched over with her eyes closed
in her vehicle, with its engine still running; the defendant
admitted to the officers that she had two drinks, she has
stomach issues, and when she drinks, it can severely impair her;
and the defendant was "talking in and out," had slurred speech,
and was difficult to understand at times. To the extent these
statements refer to the sanitized evidence, the jury would more
likely have inferred that the officers could not get a straight
answer from the defendant because she was so impaired, rather
than because she was conscious of her own guilt. Even if the
prosecutor's argument contained improper remarks, or that there
was no strategic choice for counsel to forego an objection to
them, the defendant has failed to prove that they materially
influenced the verdict. See Commonwealth v. Dresser, 71 Mass.
App. Ct. 454, 458 n.10 (2008) (defendant's burden to establish
existence of substantial risk of miscarriage of justice).
Because we do not answer all four of the Randolph inquiries
in the affirmative, the defendant has failed to establish that
the prosecutor's closing argument created a substantial risk
6 that justice miscarried. See Randolph, 438 Mass. at 298; Coutu,
88 Mass. App. Ct. at 693.
Judgment affirmed.
By the Court (Meade, Massing & Sacks, JJ. 2),
Assistant Clerk
Entered: January 30, 2024.
2 The panelists are listed in order of seniority.