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-1189
COMMONWEALTH
vs.
JACOB A. SCOTT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted of operating a motor vehicle under the influence
of intoxicating liquor (OUI), second offense,1 the defendant
appeals. He argues that during the prosecutor's closing
argument she referred to facts not in evidence when she stated
that the defendant was not charged with resisting arrest and
that the defendant had told a State police trooper that he had
"nothing to drink," and that she shifted the burden of proof by
arguing, "why would someone say they had nothing to drink . . .
[u]sually it's because they've had too much to drink." The
defendant further argues that the judge should have given, sua
sponte, a jury instruction clarifying that the trooper's
1 After a jury trial on the underlying charge, the defendant entered a guilty plea on the second offense portion. The defendant was found not responsible for speeding and marked lanes civil infractions. testimony about the defendant's performance on field sobriety
tests (FSTs) was lay opinion and not expert opinion. We affirm.
Background. At approximately 2 A.M. on March 7, 2020, on
Route 2 in Lancaster, State police Trooper Jeffrey Murray saw a
blue Honda Civic pass another vehicle at a speed approximately
twenty miles per hour more than the posted speed limit. The
Honda then crossed over into the left lane and back into the
right lane, then swerved within its own lane. Trooper Murray
activated his blue lights and the Honda pulled over into the
breakdown lane.
Trooper Murray approached the Honda and asked the driver,
the defendant, for his license and registration. Instead of
providing those documents immediately, the defendant asked why
he had been stopped. After Trooper Murray informed him of the
speeding and marked lanes violations, the defendant provided the
documents "sluggish[ly]." The defendant stated he was coming
from a party with his friend in the passenger seat, who the
trooper noted was "clearly intoxicated."
When asked whether he had been drinking that evening, the
defendant replied unresponsively that he was "just trying to get
his friend home." The defendant's eyes were glassy and
bloodshot and his speech was slurred. At Trooper Murray's
request, the defendant got out of the Honda to perform FSTs. As
2 he got out of the car, the defendant was unsteady on his feet.
The defendant did not object to performing the FSTs.
Before Trooper Murray finished instructing him on the nine-
step walk-and-turn, the defendant began performing that FST.
While doing so, the defendant stepped off the line, left a gap
greater than two inches between his heel and toe on some steps,
and improperly turned in a military-style about-face movement.
At the turn, the defendant asked the trooper if he had completed
nine steps. When Trooper Murray instructed the defendant how to
perform the one-legged stand test, the defendant told Trooper
Murray to be more realistic and "that was something that normal
people really can't do." The defendant then performed that FST,
but was becoming "increasingly more agitated." As to the
alphabet test, the defendant performed it with slurred speech.
Lastly, Trooper Murray asked the defendant to count backwards
from fifty-seven to forty-two. The defendant counted backwards
from fifty-seven to forty-six, paused for a moment, and
continued to count down to forty-two.
For about ten minutes, the defendant and Trooper Murray
waited for another trooper to arrive. During this time, the
defendant became more agitated and questioned why Trooper Murray
stopped him in the first place, why he had do FSTs, and what
proof Trooper Murray had to conduct the FSTs. The defendant
spoke over Trooper Murray and interrupted when Trooper Murray
3 attempted to answer. During those ten minutes, the defendant's
demeanor shifted back and forth from "very aggressive" to
"apologetic." Trooper Murray formed the opinion that the
defendant was intoxicated and decided to place the defendant
under arrest.
When Trooper Murray attempted to place the defendant in
handcuffs, the defendant stiffened his body and put his hands
down by his sides. After a brief struggle, the trooper placed
the defendant in the rear compartment of a cruiser. During the
booking process, the defendant shouted over Trooper Murray
numerous times and did not give direct answers to questions.
The jury convicted the defendant of OUI. This appeal
followed.
Discussion. 1. Prosecutor's closing argument. The
defendant argues that the prosecutor's closing argument was
improper in two respects, and that the cumulative effect of
those errors required the judge to grant defense counsel's
request for a mistrial. Because the defendant timely objected
to the prosecutor's closing argument, "we evaluate whether the
defendant was prejudiced thereby, considering the remarks in the
context of the entire argument, the trial testimony, and the
judge's instructions to the jury." Commonwealth v. Beaudry, 445
Mass. 577, 584 (2005). In doing so, we first determine whether
there was an error, and if so, whether that error was
4 prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994).
First, the defendant contends that the prosecutor injected
"bad character" information of "uncharged conduct" not in
evidence when she argued that the defendant "wasn't charged with
resisting arrest." A prosecutor may use closing argument to
comment on the trial tactics of the defense and to respond to
the defendant's closing argument. See Commonwealth v. Chambers,
93 Mass. App. Ct. 806, 822 (2018); Commonwealth v. Fernandes,
436 Mass. 671, 674 (2002) (prosecutor may use closing argument
to respond to defense counsel's characterization of evidence).
The prosecutor's reference to resisting arrest came in response
to the defense closing, in which counsel emphasized that the
defendant "provid[ed] the documents without argument or
resistance," and "did not argue or resist the trooper," and the
trooper's testimony that the defendant struggled while being
arrested was not sufficient evidence to convict him of OUI.
This was a proper response to defense counsel's characterization
of the evidence and was not error. See Commonwealth v. Kozubal,
488 Mass. 575, 591 (2021) (prosecutor's argument that
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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-1189
COMMONWEALTH
vs.
JACOB A. SCOTT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted of operating a motor vehicle under the influence
of intoxicating liquor (OUI), second offense,1 the defendant
appeals. He argues that during the prosecutor's closing
argument she referred to facts not in evidence when she stated
that the defendant was not charged with resisting arrest and
that the defendant had told a State police trooper that he had
"nothing to drink," and that she shifted the burden of proof by
arguing, "why would someone say they had nothing to drink . . .
[u]sually it's because they've had too much to drink." The
defendant further argues that the judge should have given, sua
sponte, a jury instruction clarifying that the trooper's
1 After a jury trial on the underlying charge, the defendant entered a guilty plea on the second offense portion. The defendant was found not responsible for speeding and marked lanes civil infractions. testimony about the defendant's performance on field sobriety
tests (FSTs) was lay opinion and not expert opinion. We affirm.
Background. At approximately 2 A.M. on March 7, 2020, on
Route 2 in Lancaster, State police Trooper Jeffrey Murray saw a
blue Honda Civic pass another vehicle at a speed approximately
twenty miles per hour more than the posted speed limit. The
Honda then crossed over into the left lane and back into the
right lane, then swerved within its own lane. Trooper Murray
activated his blue lights and the Honda pulled over into the
breakdown lane.
Trooper Murray approached the Honda and asked the driver,
the defendant, for his license and registration. Instead of
providing those documents immediately, the defendant asked why
he had been stopped. After Trooper Murray informed him of the
speeding and marked lanes violations, the defendant provided the
documents "sluggish[ly]." The defendant stated he was coming
from a party with his friend in the passenger seat, who the
trooper noted was "clearly intoxicated."
When asked whether he had been drinking that evening, the
defendant replied unresponsively that he was "just trying to get
his friend home." The defendant's eyes were glassy and
bloodshot and his speech was slurred. At Trooper Murray's
request, the defendant got out of the Honda to perform FSTs. As
2 he got out of the car, the defendant was unsteady on his feet.
The defendant did not object to performing the FSTs.
Before Trooper Murray finished instructing him on the nine-
step walk-and-turn, the defendant began performing that FST.
While doing so, the defendant stepped off the line, left a gap
greater than two inches between his heel and toe on some steps,
and improperly turned in a military-style about-face movement.
At the turn, the defendant asked the trooper if he had completed
nine steps. When Trooper Murray instructed the defendant how to
perform the one-legged stand test, the defendant told Trooper
Murray to be more realistic and "that was something that normal
people really can't do." The defendant then performed that FST,
but was becoming "increasingly more agitated." As to the
alphabet test, the defendant performed it with slurred speech.
Lastly, Trooper Murray asked the defendant to count backwards
from fifty-seven to forty-two. The defendant counted backwards
from fifty-seven to forty-six, paused for a moment, and
continued to count down to forty-two.
For about ten minutes, the defendant and Trooper Murray
waited for another trooper to arrive. During this time, the
defendant became more agitated and questioned why Trooper Murray
stopped him in the first place, why he had do FSTs, and what
proof Trooper Murray had to conduct the FSTs. The defendant
spoke over Trooper Murray and interrupted when Trooper Murray
3 attempted to answer. During those ten minutes, the defendant's
demeanor shifted back and forth from "very aggressive" to
"apologetic." Trooper Murray formed the opinion that the
defendant was intoxicated and decided to place the defendant
under arrest.
When Trooper Murray attempted to place the defendant in
handcuffs, the defendant stiffened his body and put his hands
down by his sides. After a brief struggle, the trooper placed
the defendant in the rear compartment of a cruiser. During the
booking process, the defendant shouted over Trooper Murray
numerous times and did not give direct answers to questions.
The jury convicted the defendant of OUI. This appeal
followed.
Discussion. 1. Prosecutor's closing argument. The
defendant argues that the prosecutor's closing argument was
improper in two respects, and that the cumulative effect of
those errors required the judge to grant defense counsel's
request for a mistrial. Because the defendant timely objected
to the prosecutor's closing argument, "we evaluate whether the
defendant was prejudiced thereby, considering the remarks in the
context of the entire argument, the trial testimony, and the
judge's instructions to the jury." Commonwealth v. Beaudry, 445
Mass. 577, 584 (2005). In doing so, we first determine whether
there was an error, and if so, whether that error was
4 prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994).
First, the defendant contends that the prosecutor injected
"bad character" information of "uncharged conduct" not in
evidence when she argued that the defendant "wasn't charged with
resisting arrest." A prosecutor may use closing argument to
comment on the trial tactics of the defense and to respond to
the defendant's closing argument. See Commonwealth v. Chambers,
93 Mass. App. Ct. 806, 822 (2018); Commonwealth v. Fernandes,
436 Mass. 671, 674 (2002) (prosecutor may use closing argument
to respond to defense counsel's characterization of evidence).
The prosecutor's reference to resisting arrest came in response
to the defense closing, in which counsel emphasized that the
defendant "provid[ed] the documents without argument or
resistance," and "did not argue or resist the trooper," and the
trooper's testimony that the defendant struggled while being
arrested was not sufficient evidence to convict him of OUI.
This was a proper response to defense counsel's characterization
of the evidence and was not error. See Commonwealth v. Kozubal,
488 Mass. 575, 591 (2021) (prosecutor's argument that
"[d]efendant says that he wasn't her teacher" proper response to
defense closing). To the extent that the prosecutor's comment
could be interpreted to inform the jury of the existence of the
5 crime of resisting arrest, the defendant was not prejudiced, as
the defendant was not charged with or convicted of that crime.
Second, the defendant contends that the prosecutor argued
facts not in evidence and shifted the burden of proof when she
argued, "So, where is [the odor of alcohol] coming from because
the [d]efendant said he had nothing to drink. And, ladies and
gentlemen, I would suggest to you why would someone say they had
nothing to drink or why do people lie about how much they've had
to drink? Usually it's because they've had too much to drink."
The Commonwealth concedes that the prosecutor misstated the
evidence when she erroneously claimed that there was evidence
that the defendant said he had nothing to drink.
"Prosecutors must limit the scope of their closing
arguments to facts in evidence and the fair inferences that may
be drawn therefrom" (citation omitted). Commonwealth v.
Valentin, 474 Mass. 301, 309 (2016). Here, the evidence was
that the trooper asked the defendant whether he had been
drinking, and that the defendant replied that he was "just
trying to get his friend home." There was no testimony that the
defendant denied drinking or that he stated he had "nothing to
drink," as the prosecutor claimed in closing. We agree that the
prosecutor misstated the evidence.
"Whether a misstatement of the evidence in a prosecutor's
closing argument results in reversible error depends on
6 consideration of four factors: '(1) whether the defendant
seasonably objected; (2) whether the error was limited to
collateral issues or went to the heart of the case; (3) what
specific or general instructions the judge gave the jury which
may have mitigated the mistake; and (4) whether the error, in
the circumstances, possibly made a difference in the jury's
conclusions.'" Commonwealth v. West, 487 Mass. 794, 809 (2021),
quoting Commonwealth v. Reyes, 483 Mass. 65, 77 (2019).
The prosecutor's inaccurate statement in closing that the
defendant had said he had "nothing to drink," although improper,
was not unduly prejudicial, as it might have been had the
prosecutor argued without basis in the evidence that the
defendant admitted drinking alcohol. Further, after defense
counsel objected, the judge instructed the jury that closing
arguments were not evidence, the jury's memory of the testimony
controlled, and the Commonwealth bore the burden of proof. The
Commonwealth presented a strong case, and while there was no
evidence that the defendant told the trooper that he had
"nothing to drink," he did evade the trooper's question. Cf.
Commonwealth v. Collins, 11 Mass. App. Ct. 583, 586 (1981)
(defendant's evasive statements regarding access to automobile
trunk evidenced constructive possession of firearm inside). We
conclude that the prosecutor's misstatement of the evidence did
not prejudice the defendant or shift the burden of proof.
7 Nor did the prosecutor improperly inject any personal
opinion by suggesting to the jury that someone who denies
drinking anything or who lies about how much they had to drink
would usually do so "because they've had too much to drink."
The prosecutor was not stating a personal opinion but merely
asking the jury to draw an inference.
2. Lack of jury instruction that trooper's opinion about
field sobriety tests was not expert opinion. The defendant
argues that a substantial risk of a miscarriage of justice arose
when the judge did not instruct the jury that the trooper's
testimony about the defendant's performance on FSTs was lay and
not expert opinion. In doing so, the defendant relies on a
suggestion in the dissenting opinion in Commonwealth v.
Gallagher, 91 Mass. App. Ct. 385, 399 (2017) (Agnes, J.,
dissenting).
At trial, when the prosecutor asked if the trooper had
formed an opinion about the defendant's sobriety, the trooper
replied that he "believed [the defendant] was intoxicated."
That was proper. See Commonwealth v. Jones, 464 Mass. 16, 17
n.1 (2012). But the trooper did not opine on whether the
defendant failed any of the FSTs. Rather, he simply described
what he saw the defendant do. From the trooper's testimony,
defense counsel argued in closing that the defendant "passed"
some of the FSTs.
8 The defendant did not ask the judge to instruct the jury
that the trooper's testimony about the FSTs was lay and not
expert opinion. If a police officer's testimony includes an
opinion about FSTs, and it may not be clear to a jury whether
that opinion qualifies as that of an expert, the judge may
instruct the jury that the testimony is lay opinion. See
Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 324 (2023). See
also Criminal Model Jury Instructions for Use in the District
Court, 5.310 supplemental instruction 3 (2023). However, "a
judge need not give such an instruction where it was not
requested." Commonwealth v. Waite, 102 Mass. App. Ct. 578, 582
(2023).
The defendant here did not request such an instruction, and
so there was no error in not giving it, and no substantial risk
of a miscarriage of justice arose.
Judgment affirmed.
By the Court (Sacks, Grant & Smyth, JJ.2),
Clerk
Entered: August 10, 2023.
2 The panelists are listed in order of seniority.