COMMONWEALTH v. HESEK (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Reid J. Hesek, was convicted after a jury trial of operating a motor vehicle while under the influence of intoxicating liquor, pursuant to G. L. c. 90, § 24 (1) (a) (1). In a subsequent jury-waived trial on the third offense portion of the charge, a Superior Court judge found him guilty.² On appeal, the defendant challenges the admission of testimony regarding a nip bottle of alcohol found in the truck he was driving. He also contends that the prosecutor's reference to the nip bottle during closing argument was improper. We affirm.

Discussion. Testimony regarding nip bottle. The defendant contends that Officer Dylan Punch's testimony concerning the nip bottle was hearsay because Punch lacked personal knowledge of the inventory search leading to the nip bottle's discovery. “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.” Mass. G. Evid. § 602 (2019). Punch testified that during an inventory search of the truck, a nip bottle was found underneath the driver's seat. The defendant did not object to the testimony at trial and, on appeal, he provides no factual basis for his contention that, because Punch did not conduct the inventory search himself, he did not have personal knowledge about the nip bottle's discovery.³

Assuming arguendo that Punch's testimony was hearsay,⁴ there was no substantial risk of a miscarriage of justice. See Commonwealth v. Keevan, 400 Mass. 557, 562 (1987). A substantial risk of a miscarriage of justice exists only in “the extraordinary situation where ․ we are left with uncertainty that the defendant's guilt has been fairly adjudicated.” Commonwealth v. Chase, 433 Mass. 293, 299 (2001). Here, the evidence was overwhelming. Briefly, the defendant drove his truck into a stationary minivan. When Punch interviewed him at the scene, he first denied driving the truck, but then admitted he was the driver when cautioned by Punch regarding the consequences of lying to an officer. His speech was slurred, and he had glassy, red eyes. An odor of alcohol emanated from him and, following his arrest, filled the police cruiser in which he was transported.⁵ He failed both field sobriety tests administered on site. At his booking interview, the defendant admitted to drinking a “liter of rum” overnight for an eight-hour period and to taking Xanax one-half hour after his last drink. See Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 101, 105 (2011) (no substantial risk of miscarriage of justice where remaining evidence was overwhelming indicia of intoxication, i.e., defendant hit parked car, claimed someone else was driving car, was unsteady on feet, smelled strongly of alcohol, had red glassy eyes, and slurred his speech).

Closing argument. During closing argument, the prosecutor asked the following rhetorical question: “In the real world, are you safe to drive after drinking a liter of rum, then drinking a nip, then driving a large truck that you're not supposed to?” The defendant contends that the statement was improper because it suggested that the defendant drank from the nip bottle and there was no direct evidence that he had done so. Because the statement was a fair inference from the evidence, we disagree. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). The defendant was the driver and sole occupant of the truck in which the bottle was found. The bottle, when found, still contained moisture from its contents.

Assuming arguendo that the statement was error, because the defendant did not object, we analyze for a substantial risk of a miscarriage of justice. See Kozec, 399 Mass. at 518 n.8. Here, the statement was a brief reference in a five-page closing argument. Given the strength of the evidence of the defendant's intoxication, see supra, the isolated reference did not “fatally prejudice[ ] the jury's impartial consideration of the evidence against the defendant.” Commonwealth v. Stewart, 411 Mass. 345, 358 (1991).

Judgment affirmed.

FOOTNOTES

2.   The judge also found the defendant responsible for one count of operating a vehicle with a suspended license, pursuant to G. L. c. 90, § 23, but decriminalized the charge, pursuant to G. L. c. 277, § 70C. The judge found the defendant “not responsible” on one count of a civil infraction for possession of alcohol in an open container in a motor vehicle, pursuant to G. L. c. 90, § 24I, and one count of a civil infraction for a marked lanes violation, pursuant to G. L. c. 89, § 4A.

3.   Contrary to the defendant's suggestion, Punch's testimony that he did not know to whom the nip bottle belonged or who consumed the alcohol it had contained, does not show that Punch lacked personal knowledge of the bottle's discovery during the inventory search.

4.   The defendant moved to strike a portion of the Commonwealth's brief reporting that, based on a review of the police report, Punch was present when another officer conducted the inventory search. In his motion, the defendant attaches the report, which provides that the officer who conducted the search “informed” Punch of the nip bottle's discovery. We deny the motion, but do not consider the Commonwealth's statement.

5.   The minivan driver also smelled alcohol on the defendant's breath and suspected that he was slurring his words.