COMMONWEALTH v. BURKE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor. On appeal, the defendant claims that the judge improperly admitted evidence of a certain field sobriety test, the evidence was insufficient for conviction, and that statements made during the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.

1. Sufficiency of the evidence. The defendant claims that the judge erred in denying her motion for required finding of not guilty because there was insufficient evidence to support her conviction. We disagree.

We review the defendant's sufficiency challenge to determine “whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime[ ] beyond a reasonable doubt.” Commonwealth v. Ayala, 481 Mass. 46, 51 (2018). The Commonwealth was required to prove that the defendant “(1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol.” Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017). The defendant contests only the third element.

In the light most favorable to the Commonwealth, the defendant exhibited “classic indicia of impairment” in that her speech was slurred, she had glassy eyes, and she was unsteady on her feet. See Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). Trooper Toumilovach also smelled a moderate amount of alcohol coming from the defendant's car, and the defendant admitted that she had been drinking vodka.

Furthermore, the defendant performed poorly on the three field sobriety tests administered. The defendant could not follow the trooper's instructions. During the one-leg stand test, she was slow lifting up her foot and held her leg incorrectly. Her speech was slurred when reciting the alphabet and she did not begin where the trooper had asked. She had to stop twice during the nine-step walk-and-turn test (WAT) in order to stay steady on her feet, and failed in walking heel-to-toe.² These “classic symptoms of alcohol intoxication” provided sufficient evidence for a rational juror to conclude that the defendant was operating her vehicle “under the influence of alcohol.” See Gallagher, 91 Mass. App. Ct. at 392-393.

2. The prosecutor's closing argument. The defendant also claims that the prosecutor made improper statements during her closing argument. Specifically, the defendant contests the statements describing another trooper who first interacted with the vehicles and decided whether to direct them towards the pit area. The defendant claims that the jury would improperly conclude that there was an independent, threshold determination as to the defendant's impairment. We disagree.

Because the defendant did not object at trial, we review for error, and if any, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 20 (1999). We review the prosecutor's statements “in the context of the entire argument, and in light of the judge's instruction to the jury, and the evidence at trial.” Commonwealth v. Braley, 449 Mass. 316, 328 (2007), quoting Commonwealth v. Colon-Cruz, 408 Mass. 533, 553 (1990). We note that the prosecutor is entitled to marshal evidence and suggest inferences to the jury during closing arguments. See Commonwealth v. Robinson, 482 Mass. 741, 752 (2019).

Here, the prosecutor fairly remarked on Trooper Toumilovach's trial testimony. This testimony provided to the jury context of the entire encounter. See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982) (Commonwealth is entitled to present full picture of events surrounding incident). Even if the Commonwealth was suggesting that the trooper made a threshold determination of impairment, this was a reasonable inference the jury may draw in light of the testimony that the trooper “detects and waves people in” to the pit area where Trooper Toumilovach waited.

Furthermore, the Commonwealth's statement did not go to the heart of the case. See Commonwealth v. Johnson, 470 Mass. 300, 318 (2014) (no error when misstatements did not go to “heart of the case”). As explained above, ample evidence supported the defendant's conviction. After the closing arguments, the judge reaffirmed his instructions and reminded the jurors that the closing arguments were not substitutions for the evidence. Therefore, in the context of the entire trial, the jury were unlikely to draw an impermissible inference, let alone one determinative to the outcome of the case. Accordingly, even if there was an error, there was no substantial risk of a miscarriage of justice.

Judgment affirmed.

FOOTNOTES

2.   The defendant claims that the judge abused his discretion in permitting testimony that the defendant failed the WAT test because it was administered improperly. She claims that Trooper Toumilovach improperly required the defendant perform the test by walking an imaginary line. However, the Supreme Judicial Court has explicitly upheld the legitimacy of the test administered this way. See Commonwealth v. Gerhardt, 477 Mass. 775, 780, 783 (2017). There was no abuse of discretion.