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
23-P-1288
COMMONWEALTH
vs.
ZACHARY S. ROSCOE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted after a jury trial of operating
under the influence of liquor, in violation of G. L. c. 90,
§ 24 (1) (a) (1). In his appeal, he challenges statements made
in the Commonwealth's opening and closing arguments at trial.
We affirm.
Background. 1. The offense. According to the testimony
at trial, on December 17, 2019, at about 1 A.M., State police
Trooper Kyle Melvin, who was patrolling Dudley Street in Boston,
observed a black Honda sedan traveling with only one working
headlight. The trooper reversed direction to stop the vehicle,
but before he could do so, he saw the vehicle turn right onto
Warren Street and "drive directly through the stop sign without slowing or stopping." The trooper activated his cruiser's
emergency lights and pulled the sedan over.
The only occupant of the vehicle was the defendant, who was
driving. When the defendant rolled down his window, the trooper
immediately smelled alcohol and noticed that the defendant had
bloodshot, glassy eyes. The trooper asked the defendant for his
license and registration, and the defendant produced a debit
card. Eventually, he did produce both his license and
registration. The trooper asked him whether he had been
drinking and the defendant stated, "I had about five or six
shots. Yeah, six shots. But I'm good." The defendant's speech
was slurred and delayed.
The trooper asked the defendant to exit the vehicle to
perform roadside assessments. The defendant opened the driver's
side door and swung his legs out of the vehicle, at which point
Trooper Melvin noted "the weight of his upper body fall
forward." The defendant steadied himself by grabbing onto the
vehicle's door. When he stood up, his cell phone fell to the
ground, and he struggled to retrieve it.
As the defendant stepped in front of the vehicle to perform
the roadside assessments, the trooper noticed that he was
unsteady on his feet and had to catch his balance a couple of
times. The trooper asked the defendant whether he had any
2 medical conditions or physical impairments that could affect his
performance, and the defendant said he had none. The trooper
also checked to ensure there were no tripping hazards or other
debris on the sidewalk, and that it was not wet or slippery.
The trooper assessed that the defendant was unable to
successfully complete the two tests he had been asked to
perform, the so-called "nine step walk and turn," and the "one-
legged stand," which the trooper ended early after sixteen
seconds because he feared the defendant would fall over.
The trooper concluded that the defendant was drunk, and he
placed the defendant under arrest. After the defendant was
secured in the police cruiser, the defendant stated, "Come on,
man. I know I can drive under the influence." The trooper
smelled the odor of alcohol as they drove to the police
barracks. The defendant was asleep when they arrived there
approximately fifteen minutes later. The trooper roused the
defendant by calling his name twice. When he woke up, the
defendant attempted to exit the cruiser with his seatbelt on.
The trooper unbuckled the defendant's seatbelt for him.
Throughout the booking process, the defendant repeatedly stated
that he "was drunk and . . . just trying to get home."
2. Prosecutor’s statements. The defendant argues on
appeal that several of the prosecutor’s statements in her
3 opening statement and closing argument were improper. In her
opening, the prosecutor said,
"And now, mind you, this is around 1:00 in the morning in a particularly busy area, despite the fact that it's 1 in the morning. Maybe not many people on the road at that time. This is still a public way. People on foot. People crossing walks. This is, again, a very busy area."
However, on cross-examination, when asked whether there were
pedestrians or traffic, the trooper testified that traffic at
that time was below average and that there was nobody there.
In the prosecutor’s closing argument, despite this
testimony, the prosecutor said,
"And as it's been noted, it was late at night, one in the morning in the winter. It's dark out. Snow plows, I'm sure, were around. What is important is that the trooper testified he didn't stop, slow down, or anything. He just went right through that stop sign. Now, that doesn't sound like safe driving to the trooper."
There was no evidence in the record of snow plows on the street.
Finally, the defendant argues that the prosecutor’s closing
argument was improper because it appealed to the sympathy of the
jury towards potential victims of the defendant's actions and
implied that the jury should consider themselves as persons who
could have been there. The prosecutor said, "I'd ask you to use
your common sense when you go back and your experience in
driving. If you've never driven before, just being in the area
or even being a pedestrian you expect someone to stop at a stop
sign as safe driving."
4 Discussion. 1. The claims of error. When making an
opening statement, so long as a prosecutor has a good faith
basis for thinking that her description will be proven by
evidence at trial, she may reference it in the opening, even if
in the end it does not materialize at trial. Commonwealth v.
Kapaia, 490 Mass. 787, 800 (2022). In this case, however, there
is no indication in the record what good faith basis the
prosecutor could have had for asserting that this was a busy
area at the time of the arrest. Therefore, we conclude that her
statement in opening was in error.
In a closing argument, a prosecutor "may not . . . refer to
facts not in evidence." Commonwealth v. Joyner, 467 Mass. 176,
188-189 (2014), quoting Commonwealth v. Lewis, 465 Mass. 119,
129 (2013). We agree with the defendant that the statement
about snow plows in the prosecutor’s closing argument was not
supported by the evidence, and was thus also erroneous.
Finally, we do not think the statement in closing about jurors'
experience as pedestrians invited the jurors to exercise
sympathy or put themselves in the place of potential victims,
which would have been improper. See Commonwealth v. Rutherford,
476 Mass. 639, 646 (2017), citing Commonwealth v. Worcester, 44
Mass. App. Ct. 258, 264 (1998); Commonwealth v. Andrade, 488
Mass. 522, 551 (2021). Instead, we read it as a statement 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
23-P-1288
COMMONWEALTH
vs.
ZACHARY S. ROSCOE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted after a jury trial of operating
under the influence of liquor, in violation of G. L. c. 90,
§ 24 (1) (a) (1). In his appeal, he challenges statements made
in the Commonwealth's opening and closing arguments at trial.
We affirm.
Background. 1. The offense. According to the testimony
at trial, on December 17, 2019, at about 1 A.M., State police
Trooper Kyle Melvin, who was patrolling Dudley Street in Boston,
observed a black Honda sedan traveling with only one working
headlight. The trooper reversed direction to stop the vehicle,
but before he could do so, he saw the vehicle turn right onto
Warren Street and "drive directly through the stop sign without slowing or stopping." The trooper activated his cruiser's
emergency lights and pulled the sedan over.
The only occupant of the vehicle was the defendant, who was
driving. When the defendant rolled down his window, the trooper
immediately smelled alcohol and noticed that the defendant had
bloodshot, glassy eyes. The trooper asked the defendant for his
license and registration, and the defendant produced a debit
card. Eventually, he did produce both his license and
registration. The trooper asked him whether he had been
drinking and the defendant stated, "I had about five or six
shots. Yeah, six shots. But I'm good." The defendant's speech
was slurred and delayed.
The trooper asked the defendant to exit the vehicle to
perform roadside assessments. The defendant opened the driver's
side door and swung his legs out of the vehicle, at which point
Trooper Melvin noted "the weight of his upper body fall
forward." The defendant steadied himself by grabbing onto the
vehicle's door. When he stood up, his cell phone fell to the
ground, and he struggled to retrieve it.
As the defendant stepped in front of the vehicle to perform
the roadside assessments, the trooper noticed that he was
unsteady on his feet and had to catch his balance a couple of
times. The trooper asked the defendant whether he had any
2 medical conditions or physical impairments that could affect his
performance, and the defendant said he had none. The trooper
also checked to ensure there were no tripping hazards or other
debris on the sidewalk, and that it was not wet or slippery.
The trooper assessed that the defendant was unable to
successfully complete the two tests he had been asked to
perform, the so-called "nine step walk and turn," and the "one-
legged stand," which the trooper ended early after sixteen
seconds because he feared the defendant would fall over.
The trooper concluded that the defendant was drunk, and he
placed the defendant under arrest. After the defendant was
secured in the police cruiser, the defendant stated, "Come on,
man. I know I can drive under the influence." The trooper
smelled the odor of alcohol as they drove to the police
barracks. The defendant was asleep when they arrived there
approximately fifteen minutes later. The trooper roused the
defendant by calling his name twice. When he woke up, the
defendant attempted to exit the cruiser with his seatbelt on.
The trooper unbuckled the defendant's seatbelt for him.
Throughout the booking process, the defendant repeatedly stated
that he "was drunk and . . . just trying to get home."
2. Prosecutor’s statements. The defendant argues on
appeal that several of the prosecutor’s statements in her
3 opening statement and closing argument were improper. In her
opening, the prosecutor said,
"And now, mind you, this is around 1:00 in the morning in a particularly busy area, despite the fact that it's 1 in the morning. Maybe not many people on the road at that time. This is still a public way. People on foot. People crossing walks. This is, again, a very busy area."
However, on cross-examination, when asked whether there were
pedestrians or traffic, the trooper testified that traffic at
that time was below average and that there was nobody there.
In the prosecutor’s closing argument, despite this
testimony, the prosecutor said,
"And as it's been noted, it was late at night, one in the morning in the winter. It's dark out. Snow plows, I'm sure, were around. What is important is that the trooper testified he didn't stop, slow down, or anything. He just went right through that stop sign. Now, that doesn't sound like safe driving to the trooper."
There was no evidence in the record of snow plows on the street.
Finally, the defendant argues that the prosecutor’s closing
argument was improper because it appealed to the sympathy of the
jury towards potential victims of the defendant's actions and
implied that the jury should consider themselves as persons who
could have been there. The prosecutor said, "I'd ask you to use
your common sense when you go back and your experience in
driving. If you've never driven before, just being in the area
or even being a pedestrian you expect someone to stop at a stop
sign as safe driving."
4 Discussion. 1. The claims of error. When making an
opening statement, so long as a prosecutor has a good faith
basis for thinking that her description will be proven by
evidence at trial, she may reference it in the opening, even if
in the end it does not materialize at trial. Commonwealth v.
Kapaia, 490 Mass. 787, 800 (2022). In this case, however, there
is no indication in the record what good faith basis the
prosecutor could have had for asserting that this was a busy
area at the time of the arrest. Therefore, we conclude that her
statement in opening was in error.
In a closing argument, a prosecutor "may not . . . refer to
facts not in evidence." Commonwealth v. Joyner, 467 Mass. 176,
188-189 (2014), quoting Commonwealth v. Lewis, 465 Mass. 119,
129 (2013). We agree with the defendant that the statement
about snow plows in the prosecutor’s closing argument was not
supported by the evidence, and was thus also erroneous.
Finally, we do not think the statement in closing about jurors'
experience as pedestrians invited the jurors to exercise
sympathy or put themselves in the place of potential victims,
which would have been improper. See Commonwealth v. Rutherford,
476 Mass. 639, 646 (2017), citing Commonwealth v. Worcester, 44
Mass. App. Ct. 258, 264 (1998); Commonwealth v. Andrade, 488
Mass. 522, 551 (2021). Instead, we read it as a statement that
5 even pedestrians know that not stopping at a stop sign is not
safe, so we find no error in that portion of the closing
argument.
2. Prejudice or substantial risk of a miscarriage of
justice. The only preserved claim of error concerned the
statement about "snow plows" in the Commonwealth's closing
argument. Where a successful claim of error has been preserved,
we must reverse the conviction unless the Commonwealth can
demonstrate that the error was not prejudicial. See
Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009). We
review unpreserved claims to determine whether any error
resulted in a substantial risk of a miscarriage of justice.
Joyner, 467 Mass. at 188, citing Commonwealth v. Grandison, 433
Mass. 135, 141-142 (2001).
We conclude that there was no prejudice or substantial risk
of a miscarriage of justice due to the prosecutor’s improper
statements about snow plows and pedestrians being in the area at
the time of the defendant’s offense. The jury heard the
trooper's actual testimony that there was no one around. More
importantly, the evidence of the defendant's guilt was very
strong. When asked for his license, the defendant gave the
trooper his debit card. He was unsteady upon exiting his car.
He performed poorly on two roadside assessments. He admitted to
6 having six shots and indicated that it was his own belief that
he was driving drunk.
We conclude the Commonwealth has met its burden of showing
the erroneous statement about the likelihood that there were
snow plows in the area "did not influence the jury, or had but
very slight effect." Commonwealth v. Flebotte, 417 Mass. 348,
353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct.
437, 445 (1983). For the same reasons, we conclude the
Commonwealth has shown the erroneous statement in the opening
about pedestrians in the area did not create a substantial risk
of a miscarriage of justice.
That does not end our analysis, because the defendant
argues the errors cumulatively required reversal. We recognize
that, particularly when viewed together, these erroneous
statements may have been intended to create the impression that
the defendant's driving was an immediate threat to the safety of
the people actually in the area, even though, at least in the
immediate area, there were none. This was improper, and we
caution prosecutors that they must rely on the facts in
evidence, and that arguments designed to bolster the
Commonwealth's case on the basis of unsupported statements of
fact will lead to reversals. In this case, the statement in
closing may have reinforced the idea of immediate danger
7 introduced in the opening. But even viewed in light of that,
given the strength of the evidence of guilt here, and the
irrelevance of the presence of people or traffic to the elements
of the offense on which the jury were properly instructed,
neither statement, nor the two errors taken together, were
prejudicial.
Judgment affirmed.
By the Court (Rubin, Grant & Hershfang, JJ.1),
Clerk
Entered: October 4, 2024.
1 The panelists are listed in order of seniority.