COMMONWEALTH v. COOLEY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial on charges of negligent operation of a motor vehicle and operation of a motor vehicle while under the influence of alcohol, the defendant, Thomas F. Cooley, was convicted of only negligent operation of a motor vehicle. See G. L. c. 90, § 24 (2) (a).² The defendant argues that the conviction should be vacated because the prosecutor made improper and prejudicial statements during trial. We affirm.

Discussion. We first review for prejudicial error the defendant's challenge to the prosecutor's objected-to statement that the defendant had the “opportunity to prove” that he was not under the influence, see Commonwealth v. Tu Trinh, 458 Mass. 776, 785 (2011), and we see no prejudice flowing from this remark because the defendant was acquitted on that charge.³ See Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997) (admission of allegedly improper bad act evidence not prejudicial where jury returned not guilty verdict on two out of three indictments for similar crimes); Commonwealth v. Doyle, 5 Mass. App. Ct. 544, 547 (1977) (allegedly improper joinder not prejudicial where jury returned not guilty verdict).

Turning next to the defendant's challenges to unobjected-to statements, we conclude that no substantial risk of a miscarriage of justice was created. See Commonwealth v. Daigle, 379 Mass. 541, 549 (1980) (where no objection was made to closing arguments at trial, reversal requires showing of substantial risk of miscarriage of justice). A substantial risk of a miscarriage of justice exists when there is a “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).

While the prosecutor misstated in his opening statement, contrary to the arresting officer's subsequent trial testimony, that the defendant's speech was “a little slurred,” we view the remarks made in opening and closing statements “in light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.’ ” Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002), quoting Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). Here, the judge properly instructed the jury that the opening statements of counsel are not evidence. Commonwealth v. Delaney, 425 Mass. 587, 601 (1997) (no substantial risk of miscarriage of justice where judge instructed jury that prosecutor's arguments were not evidence). Moreover, defense counsel effectively exploited the absence of any evidence of slurred speech during cross-examination and in closing argument.

As to the defendant's next challenges, a prosecutor may permissibly challenge a defendant's credibility, see Commonwealth v. Lucido, 18 Mass. App. Ct. 941, 943 (1984), and “argu[e] forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.” Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Accordingly, where the defendant claimed to have consumed only one drink, we see no impropriety with the prosecutor arguing that “there was a strong smell of alcohol. That does not happen after one drink.” Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Likewise, the prosecutor's argument that the defendant “doesn't really know where he lives” could be reasonably inferred from evidence that the defendant told the arresting officer that he grew up in Norwood, lives in Norwood, but was heading back home to Taunton. See id.

Finally, the defendant's claim that the prosecutor improperly fashioned a confession from the defendant's statements also lacks merit. “[P]rosecutors are entitled to marshal the evidence” in the Commonwealth's favor. Drayton, 386 Mass. at 52. Accordingly, we see no error and, even in combination with the prosecutor's other remarks, we fail to see that a substantial risk of a miscarriage of justice was created. Commonwealth v. Haskins, 411 Mass. 120, 122 (1991) (no substantial risk of miscarriage of justice where arguments are “forceful but fair” and jury instructed that prosecutor's arguments are not evidence). Furthermore, the defendant was acquitted of the operating while under the influence charge, see Commonwealth v. Dyer, 460 Mass. 728, 740 n.17 (2011) (“error, if any, was harmless because on this charge the jury acquitted the defendant”), and none of these challenged statements pertained to the negligent operation charge.

Judgment affirmed.

FOOTNOTES

2.   The defendant was also found responsible for speeding.

3.   Furthermore, the judge instructed the jury that the defendant was presumed innocent, that “[t]his burden of proof never shifts,” and that the defendant was not required “to produce any evidence.” It is presumed that a jury follows instructions. Commonwealth v. Barker, 311 Mass. 82, 90 (1942). As such, the burden of proof was never shifted to the defendant, and we are quite confident that the jury did not believe that the defendant had to prove that he was not intoxicated in order to be acquitted of negligent operation.