COMMONWEALTH v. MUNIZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of operating while under the influence of alcohol and two counts of leaving the scene of an accident causing property damage. On appeal, he claims that there was insufficient evidence to support his leaving the scene convictions, an officer improperly gave an opinion on the defendant's guilt, the judge admitted a statement not disclosed in discovery that also constituted hearsay, and that the prosecutor's closing argument was improper. With the exception of one of the leaving the scene convictions, which we vacate as duplicative, we affirm.

1. Sufficiency of the evidence. The defendant claims that the Commonwealth failed to provide sufficient evidence that after his collision with the other vehicles, he failed to stop and make known his name, address, and registration to the owners of the vehicles or to the police. We disagree.

In order for a defendant to be found guilty of leaving the scene of property damage, the Commonwealth must prove that (1) the defendant operated a motor vehicle; (2) while so operating, the defendant collided with and caused damage to another vehicle or property; (3) the defendant knew that he collided with another's property; and (4) the defendant did not stop and make known his name, home address, and the registration number of his motor vehicle. See G. L. c. 90, § 24 (2) (a). See also Commonwealth v. LeBlanc, 475 Mass. 820, 822 (2016). The defendant challenges only the sufficiency of the final element.

In the light most favorable to the Commonwealth, the evidence was that upon arriving at the scene of the accident, the arresting officer did not see any notices affixed to either of the damaged vehicles struck by the defendant. The defendant was not at the scene of the accident, but instead was one hundred yards away standing next to his disabled car, and he did not return to the scene. At no point while the officer spoke to the defendant did the defendant tell the officer that he had struck these two vehicles or try to proactively offer the officer his name, address, and registration for any purpose, much less for purposes of alerting the owners of the damaged cars. The fact that the officer might have incidentally received this information is of no moment. See Commonwealth v. Joyce, 326 Mass. 751, 752-753 (1951). See also Commonwealth v. Horsfall, 213 Mass. 232, 236 (1913). Based on this evidence, the jury were permitted to find that the defendant left the scene of the motor vehicle crash without providing the affirmative notice required by G. L. c. 90, § 24 (2) (a).²

2. The officer's opinion. The defendant further claims that a police officer impermissibly testified to the ultimate issue of the defendant's guilt when the officer testified that, after observing the defendant's performance on field sobriety tests, he formed the opinion that the defendant was under the influence of alcohol. We disagree.

“In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication.” Commonwealth v. Canty, 466 Mass. 535, 541 (2013), quoting Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). A lay opinion, as opposed to an expert opinion, is admissible “only where it is ‘(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.’ ” Canty, supra, quoting Mass. G. Evid. § 701 (2013).

While the defendant concedes that the officer could properly offer an opinion as to the level of the defendant's intoxication, he nonetheless claims that the officer's additional testimony, i.e., that he placed the defendant under arrest, constituted improper testimony on the ultimate issue of guilt. However, the officer did not testify that the defendant's ability to operate the car was impaired, which is prohibited by Canty. See Canty, 466 Mass. at 542-543. Nor did he testify that he arrested the defendant for operating under the influence; he merely stated that the defendant was placed in custody.³ In any event, it would have been obvious to the jury that the defendant, who was now standing trial, had been arrested. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389-390 (2017). The officer did not testify to the ultimate issue of the defendant's guilt.⁴

3. Closing argument. Finally, the defendant claims that, in the Commonwealth's closing argument, the prosecutor engaged in improper burden shifting, commented on the defendant not presenting evidence, and injected her personal beliefs. We disagree.

During the defendant's closing argument, defense counsel repeatedly suggested that the defendant's performance on the field sobriety tests could have been caused by his anxiety after being in a car crash. In response, the prosecutor argued that the defendant told the officer that he did not have any medical issues that would prevent him from performing the tests, and given the officer's observations, the prosecutor suggested that the only reasonable explanation was the one the officer reached, which was that the defendant was intoxicated. This is not burden shifting, but merely an argument based on the evidence and the reasonable inference drawn therefrom. See Commonwealth v. Smith, 404 Mass. 1, 7 (1989). Although the prosecutor said there was “no other reasonable explanation that makes sense for what happened here,” she then recounted the evidence that supported the proffered argument that the defendant was “drunk.”⁵ In context, this too did not shift the burden, but merely suggested a more plausible explanation for the defendant having failed the field sobriety tests. See Commonwealth v. Francis, 450 Mass. 132, 141 (2007).

The defendant also claims that the prosecutor improperly argued in her closing that “when someone can't walk in a straight line, and somebody can't keep their balance, when someone can't recite the alphabet past the letter E, that person can't drive a car safely.” Contrary to the defendant's claim, this was neither an improper statement of personal belief, nor was it a comment on the defendant not presenting evidence. Rather, it was an argument based on the evidence and the reasonable inferences to be drawn therefrom. In fact, immediately following the challenged statement, the prosecutor said the “defendant couldn't drive his car safely that night because of the alcohol he drank and you know that he didn't drive his car safely. In fact, he crashed his car into two other vehicles.” Again, this was nothing more than the prosecutor urging the jury to draw an inference based on the evidence which supported a finding of guilt. See Commonwealth v. Hogan, 375 Mass. 406, 408 (1978). The prosecutor never claimed the evidence was “uncontested” or “uncontradicted,” but only offered the Commonwealth's theory of the case as reflected in the evidence. After reviewing the prosecutor's challenged remarks in light of her entire argument, as well as in light of the judge's instructions to the jury and the evidence at trial, see Commonwealth v. Johnson, 463 Mass. 95, 111 (2012), we discern no error.⁶

4. Conclusion. The conviction on count four, charging leaving the scene of an accident causing property damage, is duplicative of the conviction on count two. Accordingly, on count four of the complaint, the judgment is vacated, the verdict is set aside, and the complaint as to count four is to be dismissed. The remaining judgments are affirmed.

So ordered.

Vacated, verdict set aside, and complaint dismissed in part; affirmed in part.

FOOTNOTES

2.   The defendant also claims that his two convictions for leaving the scene of property damage are duplicative because there was insufficient evidence to establish that the defendant left two separate crash scenes. The Commonwealth properly concedes on this point because “the proper ‘unit of prosecution’ under [G. L. c. 90, § 24 (2) (a)] is the act of leaving the scene of the accident, not the number of accident victims [or items of property damaged].” Commonwealth v. Henderson, 89 Mass. App. Ct. 205, 210 (2016), quoting Commonwealth v. Constantino, 443 Mass. 521, 524 (2005). Although we vacate one of the defendant's convictions for violating the statute, the owners of each damaged car remain victims of the defendant's crime.

3.   We similarly reject the defendant's claim that the officer's specialized training and experience transformed him into an expert witness. Impairment and intoxication are not beyond the ken of lay jurors. In any event, the officer did not testify that the defendant failed any of the field sobriety tests, nor did he quantify what he observed throughout the defendant's performance. Instead, he merely testified to his personal observations as the defendant attempted to perform the one-legged stand, the nine-step walk and turn, and the alphabet test. The defendant was not prejudiced.

4.   The defendant also claims that the judge erred in denying his motion to exclude officer testimony as to “any alleged call to a tow company” by the defendant, arguing that such testimony was irrelevant testimonial hearsay. Despite this, when the matter was raised at trial, the officer said he had called for the tow, and that he had not discussed the matter with the defendant. In other words, the statement from the police report, even if it was hearsay, did not come in evidence, and the matter was not argued to the jury. Also, contrary to the defendant's claim raised for the first time on appeal, there was no discovery violation because the defendant's purported statement was contained in a police report provided to the defendant. See Commonwealth v. LaFaille, 430 Mass. 44, 53 (1999).

5.   As reconstructed by the parties, the only objection the defendant made to the argument was to the prosecutor's use of the word “drunk.” None of the claims on appeal were preserved by an objection at trial. In any event, regardless of whether the claims were preserved, there was no error.

6.   We need not address the defendant's additional claim that his due process rights to a fair trial were violated by the cumulative impact of the errors.