Opinion
No. 12–P–1081.
2013-08-23
COMMONWEALTH v. Shawn M. WEBB.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. Thereafter, the defendant pleaded guilty to that portion of the charge that alleged a second offense. On appeal, he argues that the prosecutor made improper comments in his closing argument and that the judge's instruction to the jury defining operating under the influence of alcohol was misleading and prejudicial. We affirm.
The defendant was also found responsible for a marked lanes violation.
Facts. The jury could have found the following facts. On March 26, 2011, at approximately 2:30 A. M., Sergeant Sean Kennedy stopped the defendant's vehicle after observing him drive erratically on Route 2. While asking the defendant for his license and registration, Sergeant Kennedy detected a strong odor of alcohol. He also noticed that the defendant's eyes were red and glassy and that his speech “was intermittently slurred.” When Sergeant Kennedy asked the defendant whether he had been drinking, the defendant admitted that he had “a few” alcoholic beverages that evening. At a later point, the defendant clarified his response by stating that he had one beer and a few shots. Sergeant Kennedy administered four field sobriety tests; the defendant failed three of the tests and passed the fourth test, the alphabet test. The defendant was then arrested and transported to the police station. The police subsequently recovered a brown paper bag containing a bottle of brandy from the back seat on the driver's side of the car. Discussion. 1. The prosecutor's closing argument. The defendant argues that the prosecutor misstated the evidence on three occasions during his closing argument. As the defendant did not object to any of the contested remarks, our review is limited to determining whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, 51 Mass.App.Ct. 99, 105 (2001).
All three of the challenged comments concern the amount of alcohol the defendant had consumed. At one point the prosecutor stated that the defendant had three beers, whereas the testimony indicated that he had one beer and two shots. This statement was no more than a slip of the tongue and did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Rosa, 73 Mass.App.Ct. 540, 548 n.9 (2009). Thereafter, the prosecutor argued that it was unlikely that the defendant had remained at a bar for two and one-half hours without consuming a drink and later stated that the defendant had ordered a shot “for the road.” These comments were well within the acceptable bounds of permissible argument in light of the evidence adduced at trial. See Commonwealth v. Daley, 66 Mass.App.Ct. 254, 257 (2006). Even if we were to assume, which we do not, that the comments were improper, there was no substantial risk of a miscarriage of justice.
2. Jury instruction. For the first time on appeal, the defendant challenges the judge's final instruction to the jury defining operating under the influence of alcohol. The judge essentially tracked the 1995 version of the Model Jury Instructions for Use in the District Court, Instruction 5:10. Certainly, as this case was tried in 2012, it would have been better to give the 2011 version of the same instruction. Nonetheless, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Flanagan, 76 Mass.App.Ct. 456, 465 (2010).
The judge's instruction reads as follows: “What does it mean to be under the influence of alcohol or intoxicating liquor? Under our law, a person does not have to be drunk or unconscious to be under the influence of alcohol or intoxicating liquor. Under our law, someone is under the influence whenever he has consumed enough alcohol to reduce his ability to operate a motor vehicle safely. The purpose of the law is not to punish someone who drinks an alcoholic beverage, and then without being affected by that beverage drives a motor vehicle. But, rather, it's to address the driver whose alertness, judgment, and ability to respond promptly have been lessened or diminished or reduced by alcohol. This would include someone who is drunk, but it would also include anyone who has consumed enough alcohol to reduce his mental clarity, self-control, and reflexes and thereby left him with a reduced ability to drive safely. The amount of alcohol necessary to do this may vary from person to person.”
Judgment affirmed.