COMMONWEALTH v. MURPHY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted in a bifurcated trial of operating under the influence of intoxicating liquor (OUI), fourth offense G. L. c. 90, § 24 (1) (a) (1). In this, his direct appeal, he raises two claims of error with respect to his conviction by the jury of OUI.² We affirm.

He argues first that the evidence was insufficient to support his conviction. We apply the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), and ask whether, viewing the evidence in the light most favorable to the Commonwealth, any rational juror could have found the essential elements of the crime beyond a reasonable doubt.

In order to convict the defendant of operating under the influence of intoxicating liquor, the Commonwealth was required to prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle, (2) on a public way, while (3) under the influence of alcohol. With respect to the last element, the only one contested here, the jury must find beyond a reasonable doubt that alcohol “diminished the defendant's capacity to operate a motor vehicle safely.” Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988). See generally id. at 457-458.

The evidence here was sufficient to support the jury's finding beyond a reasonable doubt with respect to that final element. There was evidence that the defendant smelled strongly of alcohol and had glassy eyes and slurred speech. There was an open bottle of Heineken beer in the front center console of his car, which was still cold and fizzy, and an open case of Heineken immediately behind the driver's seat, from which that beer had apparently been taken, which was missing four bottles of beer. The defendant was belligerent and falsely asserted that he was a brain surgeon at the Massachusetts General Hospital. Most significantly, on cross-examination, the arresting officer testified that when the defendant was asked to exit the vehicle, which was stuck in a snowbank, “he fell out of the car,” because instead of placing his feet down, “[t]he top of his body came out first.”

Although there may be alternative explanations for individual pieces of evidence that support the conclusion that the defendant was under the influence of alcohol within the meaning of the statute, “[t]he inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable,” Commonwealth v. Casale, 381 Mass. 167, 173 (1980), and we must view the evidence in the light most favorable to the Commonwealth. See Latimore, 378 Mass. at 677.

The defendant's second argument is that the prosecutor erred in closing by stating that he “would argue ․ that [the defendant] was too intoxicated to be given field sobriety tests.” The defendant objected to this statement, so the claim of error is preserved. Although the objection was overruled, the judge did instruct the jurors that “[t]he opening statements and closing statements ․ are not evidence ․ If your memory of the testimony differs from the attorneys' or mine, you are to follow your own recollection.”

In fact, the testimony of the police officer was that the defendant was not given a field sobriety test both because of the snowy and icy weather conditions and because he was belligerent -- flailing his arms and screaming at the officers. We therefore think the statement that he was not given field sobriety tests because he was too intoxicated was neither supported by the evidence, nor was it a reasonable inference that could have been drawn therefrom. In light, however, of the overwhelming evidence of the defendant's guilt and the judge's cautionary instruction, we conclude that, although the prosecutor's statement in closing was error, it was not prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (“An error is not prejudicial if it ‘did not influence the jury, or had but very slight effect’; however, if we cannot find ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,’ then it is prejudicial”).

Judgment affirmed.

FOOTNOTES

2.   The defendant also pleaded guilty to operating a motor vehicle after his license was suspended for operating a motor vehicle under the influence of intoxicating liquor. He does not challenge that conviction.