COMMONWEALTH v. DUY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted, after a jury trial, of operating a motor vehicle while under the influence of alcohol (OUI) while having a suspended license as a result of an earlier OUI, G. L. c. 90, § 23.² He argues on appeal that the prosecutor impermissibly commented during closing argument on the defendant's right under art. 12 of the Massachusetts Declaration of Rights and the Fifth Amendment to the United States Constitution to remain silent. More specifically, the defendant points to the prosecutor's statement that the defendant “submitted to the [officer's] questioning and didn't protest” when the officer spoke to the defendant after his car had been stopped.

A prosecutor may not, for the purpose of urging an inference of guilt, draw the jury's attention to the fact that a defendant exercised his constitutional right to remain silent in the face of police inquiry. See Doyle v. Ohio, 426 U.S. 610, 617-620 (1976); Commonwealth v. Teixera, 396 Mass. 746, 752 (1986). Likewise, a prosecutor may never suggest to the jury that a suspect bears any affirmative duty during post-Miranda questioning to deny wrongdoing or otherwise assert his innocence. See Commonwealth v. Haas, 373 Mass. 545, 559 (1977). To determine whether a prosecutor's argument amounted to impermissible commentary on a defendant's silence, we view the prosecutor's statements in context. See Commonwealth v. Richotte, 59 Mass. App. Ct. 524, 528 (2003). If, so viewed, the prosecutor's statements did not so much comment on the defendant's silence, but rather highlighted variance or inconsistency between the defendant's testimony or theory at trial and his previous statements, then “[t]he prosecutor was not trampling on the constitutional right to remain silent; he was performing [the] proper function of alerting the jury to possible flaws” in the defendant's theory or testimony. Richotte, supra at 527, quoting Commonwealth v. Sherick, 401 Mass. 302, 305 (1987). Where the defendant waives his right to remain silent by voluntarily speaking with officers, the prosecutor may comment on omissions from the defendant's pretrial statements to point out inconsistencies with the defense's theory at trial without infringing on the defendant's right to remain silent. See Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 638 (2003). See also Commonwealth v. Lavalley, 410 Mass. 641, 648-650 (1991).

We now apply these principles to this case. A police officer observed a white Chrysler traveling five to ten miles per hour above the speed limit late at night. The officer pursued and turned on his blue lights. He lost sight of the Chrysler for about five seconds as it turned a corner. He then saw a white Chrysler parked in a driveway, with the defendant standing outside. No one else was present. In response to the officer's questions, the defendant produced an Ecuadorian identification document and the vehicle's registration. He told the officer that he was coming from the Portuguese Club and was heading to his home in Milford.³

The defendant voluntarily spoke with the officer, and the defendant's statements and actions were inconsistent with his theory at trial, which was that the Commonwealth failed to prove beyond a reasonable doubt that the Chrysler in the driveway was the car the officer observed speeding, or that the defendant was its driver. In these circumstances, the prosecutor's statement that the defendant did not “protest” was not a comment on the defendant's silence, but instead asked the jury to draw the reasonable inference that the defendant would have responded differently to the officer had the defendant not been driving.⁴

Judgment affirmed.

FOOTNOTES

2.   The defendant was acquitted of a separate charge of OUI, G. L. c. 90, § 24 (1) (a) (1), and a charge of speeding in violation of G. L. c. 90, § 17, was filed with the defendant's consent. The defendant does not argue on appeal that his conviction of OUI while having a suspended license as a result of an earlier OUI is inconsistent (logically or otherwise) with his acquittal on the OUI charge.

3.   The turn the car had last taken was inconsistent with that route.

4.   Although the defendant does not challenge the prosecutor's argument that the defendant's lack of “protest” indicated consciousness of guilt, we view this as an unwarranted inference and the jury should not have been asked to draw it. That said, we see no resulting substantial risk of a miscarriage of justice.