Opinion
No. 14–P–1883.
06-23-2016
COMMONWEALTH v. Beth ORAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a District Court jury trial, the defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor on both the impaired ability and the per se theories of criminal liability. See G.L. c. 90, § 24(1)(a ) (1) ; Commonwealth v. Colturi, 448 Mass. 809, 810 (2007). She also was found guilty of negligent operation of a motor vehicle. See G.L. c. 90, § 24(2)(a ). On appeal, the defendant's sole argument is that the judge abused his discretion in limiting closing arguments to five minutes for each side.
Pursuant to Mass.R.Crim.P. 24(a)(2), 378 Mass. 895 (1979), counsel for each party shall be allowed thirty minutes for closing argument; but, before the argument commences, the judge “may reasonably reduce or extend the time.” Whether a reduction in time is reasonable depends upon the complexity of the issues and whether counsel had ample time to cover the essential aspects of the case. See Commonwealth v. Cameron, 385 Mass. 660, 667 (1982) ; Commonwealth v. Johnson, 42 Mass.App.Ct. 948, (1997).
The defendant's trial, from empanelment to verdict, lasted approximately four hours. The Commonwealth called three witnesses: Officers Keith Tosi and Timothy Barros, both of whom interacted with the defendant on the evening in question, and Officer Glen Gerrans, who had tested the breathalyzer machine used to obtain the defendant's blood alcohol level at the police station. The defendant cross-examined the officers but did not present any witnesses of her own.
Natick police Officer Tosi testified on direct examination that, on March 10, 2013, he was driving his personal vehicle on Route 27 in Sherborn when he noticed the defendant driving erratically. The defendant's car hit three-foot-tall snowbanks at least six times and crossed the double solid yellow dividing line numerous times. Officer Tosi followed the defendant to Route 135 in Natick, where she continued to swerve into the opposite lane and, according to Officer Tosi, forced an oncoming vehicle to pull into a parking lot to avoid a collision. As the defendant approached Wellesley, Office Tosi alerted the Wellesley police about the defendant's erratic driving. On cross-examination, defense counsel brought out that the officer had not written a report and was relying on his memory from seven months earlier. Counsel also elicited that the road was narrow where the defendant hit the snowbanks, the oncoming car that swerved into the parking lot could have already been pulling into the lot, and the defendant was not speeding.
Officer Barros of the Wellesley police department testified on direct examination that he found the defendant's vehicle stopped near Wellesley College. When he approached the defendant, he smelled a moderate odor of alcohol on her breath and found her to be “upset.” Initially, the defendant denied drinking alcohol, but later admitted to taking a “couple of sips.” The officer directed the defendant to perform field sobriety tests, including the nine-step walk-and-turn, the alphabet test, and the one-legged stand. When the defendant did not complete the tests as instructed, she was placed under arrest and brought to the police station. After booking, she consented to a breathalyzer test resulting in a blood alcohol reading of .09. During cross-examination, the officer acknowledged that the defendant had no difficulty getting out of her car, she was not unsteady while changing her shoes to perform the field sobriety tests, and she told the officer that she had a bad back, suffered from glaucoma, and took medication. Counsel also elicited that the defendant walked to and entered the cruiser without difficulty and answered questions appropriately. In addition, counsel probed the reliability of field sobriety tests and whether the defendant's performance was, in fact, deficient.
Wellesley police Officer Gerrans testified on direct examination about the periodic testing performed on the breathalyzer machine, and the results of testing five days prior to the incident, which showed that the machine was operating properly. On cross-examination, defense counsel inquired about the age of the machine, and whether and how it had been serviced. Counsel also elicited that physical conditions and sample size can affect the test results.
At the close of the evidence, the judge denied the defendant's motion for required findings and outlined what he intended to charge the jury. He then stated, “I'll give you each five minutes,” and, again, “Five minutes each.” Without objection, defense counsel proceeded to address the jury. A few minutes later, the judge gave counsel a two-minute warning, and invited her to conclude. Counsel continued to speak until the judge announced that her time was up. At that point counsel objected.
The defendant contends that counsel initially did not object because it was not clear that the judge was referring to time limits on closing arguments; however, given the context, there was no ambiguity. Regardless, we will assume that the objection at the end of the argument sufficed to preserve the defendant's rights.
We recognize that it is important to conduct trials efficiently in our busy District Courts. However, in any jury trial—even one that is short and relatively simple—a five-minute limit on closing argument is extreme. That said, even if the judge may be said to have abused his discretion, we conclude that appellate relief is not warranted in the circumstances.
Unlike key cases relied upon by the defendant, this was not a situation where counsel was denied any closing argument, see Commonwealth v. Martelli, 38 Mass.App.Ct. 669, 672 (1995) ; nor was it a situation where counsel was erroneously precluded from addressing relevant evidence, see Commonwealth v. Bennett, 6 Mass.App.Ct. 832, 832 (1978). Significantly, the case was neither factually nor legally complex. Thus, despite the time limit, defense counsel was able to comment upon important points: the Commonwealth's heavy burden, the credibility of the three police officers, specific infirmities in Officer Tosi's testimony, and Officer Barros's admission that the defendant was able to answer questions without difficulty. Finally, and most significantly, the Commonwealth's case was strong. In sum, we discern no prejudice warranting reversal.
Judgments affirmed.