Opinion
18-P-1304
04-08-2019
COMMONWEALTH v. RONALD WAIN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Ronald Wain, was convicted of negligent operation of a motor vehicle. See G. L. c. 90, § 24 (2) (a). He appeals, claiming error in the prosecutor's closing argument and that the evidence was insufficient. We affirm.
The jury found the defendant not guilty of operating a motor vehicle while under the influence of drugs, and a finding of not responsible entered for an alleged marked lanes violation.
Facts. On May 20, 2017, at approximately 2:15 A.M., Officer Jamie Mazzola of the Norwood Police Department was traveling northbound on Route 1 when he saw a white Honda automobile drift from the left lane to the right lane "multiple times." After stopping at a traffic light, the Honda "accelerated and was straddling the right lane and left lane, with the passenger side tires in the right lane and the driver's side tires in the left lane." Mazzola pulled the Honda over without incident. Mazzola asked the driver, the defendant, for his driver's license; the defendant retrieved it, looked at it, and returned it to his pocket. When asked a second time, the defendant gave his license to Mazzola. When asked about his driving, the defendant said he did not realize he had been drifting. Mazzola noted that the defendant's responses were "slow" and "gradual." Mazzola also detected an odor of burnt marijuana.
After the Honda was stopped, Officer Patrick Bishop arrived at the scene. He too noted the smell of burnt marijuana coming from the Honda. The defendant told Bishop he had smoked "[a]pproximately a blunt's worth" of marijuana that day, which he said was an unusually large amount for him. Bishop observed that the defendant's eyes were red and glassy; that he was euphoric; and that he had difficulty focusing, conversing, answering simple questions, and following the train of the conversation. The defendant was unable to successfully complete roadside assessments and was placed under arrest. After transporting the defendant to the police station, the police cruiser smelled of burnt marijuana, an odor that had not been there previously. During the booking process, the defendant seemed confused; he laughed randomly and appeared euphoric.
At trial, the defendant called his mother as a witness. She testified about the defendant's educational challenges, his cognitive and physical disabilities, and his nervous behavior when interacting with new people. She also testified that her husband, who uses the Honda, smoked marijuana in it before the defendant used the car.
Discussion. a. Closing argument. The defendant asserts that various errors in the prosecutor's closing argument individually or cumulatively call for a reversal. We determine whether a prosecutor's statements made during closing argument require a new trial by considering (1) whether the defendant objected to the argument; (2) whether the error concerned collateral issues or went to the heart of the case; (3) whether the judge's instructions may have mitigated the mistake; and (4) whether the error could have made a difference in the jury's conclusions. Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). See Mass. G. Evid. § 1113(b) & note (2018).
i. Unpreserved claims. Our review of statements to which there was no objection is limited to whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Brown, 479 Mass. 600, 609-610 (2018). The defendant claims that the prosecutor mischaracterized the evidence when she stated that Mazzola had seen the Honda "swerving between the lanes" and "accelerat[ing] before [the police] stopped it," and that Mazzola had observed the Honda "swerving, straddling the lanes, [and] accelerating quickly." Taken in context, the prosecutor's closing consisted of permissible comments about Mazzola's observations of the Honda based on the evidence presented. See Commonwealth v. Johnson, 429 Mass. 745, 749 (1999); Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 253-254 (2001).
The defendant also argues that it was error for the prosecutor to call the two Norwood police officers "veterans of their department," claiming that she impermissibly vouched for their credibility. This statement, even if error, did not create a substantial risk of a miscarriage of justice. The absence of an objection from trial counsel is some indication that, in context, the prosecutor's words were more innocuous than now argued. See Commonwealth v. Mello, 420 Mass. 375, 380 (1995). Moreover, the jury acquitted the defendant of the more serious charge of operating a motor vehicle while under the influence of drugs (OUI).
ii. Preserved claim. Defense counsel objected to the prosecutor's statement that Mazzola observed the defendant "accelerating rapidly for no apparent reason." We review this claim to determine, if error, whether it was prejudicial. Commonwealth v. Rosario, 430 Mass. 505, 515 (1999). During closing argument, "[c]ounsel may argue from the evidence and may argue fair inferences that might be drawn from the evidence." Commonwealth v. Murchison, 418 Mass. 58, 59 (1994), citing Commonwealth v. Earltop, 372 Mass. 199, 205 (1977). The challenged statement, perhaps inartfully made, was a fair inference from Mazzola's testimony that "[t]he signal turned green and we proceeded northbound . . . [t]he vehicle accelerated and was straddling the right lane and left lane . . . ." Taken in context, the prosecutor's statement was at worst a minimal distraction from the main subject of the evidence about the defendant's driving -- his repeated failure to keep his vehicle within the lane markings. Even if there was error, we are confident that it did not influence the jury.
b. Sufficiency. To obtain a conviction of negligent operation of a motor vehicle, the Commonwealth must prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) negligently so that the lives or safety of the public might be endangered. Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004). Unlike many negligent operation cases, this case does not involve a collision or a near-collision. See, e.g., Commonwealth v. Charland, 338 Mass. 742, 743-744 (1959). The question is whether the defendant's driving had the potential to cause danger to the public, not whether it actually did. See Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005).
Here, taking the evidence in the light most favorable to the Commonwealth, as we must, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence suffices. The Honda was drifting and straddling the marked lanes of a highway in the early morning hours, "multiple times." The defendant was not wearing his eyeglasses despite telling the police that he believed he used them for distance. He had smoked marijuana in a quantity larger than usual within an hour prior to being stopped. That the jury acquitted the defendant of OUI does not alter the sufficiency analysis. See Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017).
The defendant's reliance on Commonwealth v. Larose, 93 Mass. App. Ct. 1113, further appellate review granted, 480 Mass. 1108 (2018), is misplaced as in that case the question was whether a single act of crossing a fog line for two to three seconds constituted a marked lanes violation. Here, the facts are markedly different.
Although the defendant does not explicitly argue the point, we note that the defendant's evidence of his cognitive and physical challenges, as testified to by his mother, did not cause a deterioration in the Commonwealth's case for sufficiency purposes. See Ross, 92 Mass. App. Ct. at 381. The matter was for the jury.
Judgment affirmed.
By the Court (Wolohojian, Blake & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 8, 2019.