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Com. v. Quinn6/18/2004
A District Court jury convicted the defendant, Brian Quinn, of operating while under the influence of alcohol, G.L. c. 90, § 24. [FN1] The defendant claims that the judge should have allowed his motion for a required finding of not guilty, and that in closing argument the prosecutor improperly urged the jury to consider how they would explain their verdict to "a loved one at home or your friend on the phone...." Although *333 there was sufficient evidence to submit the case to the jury, we reverse the conviction because of the prosecutor's improper closing argument.
FN1. The defendant also was found responsible on a charge of violation of a municipal ordinance/by-law. The case was filed with the defendant's consent.
1. Factual background. The jury could have found the following facts. At approximately 2:00 P.M. on November 8, 2000, Worcester police Officer Richard Cowden responded to a report of a motor vehicle accident in Kelley Square. A ten-wheel dump truck struck a double-parked "box type" truck, pushing it toward a similar truck parked ahead. Both trucks were making deliveries to businesses adjacent to the street. The operator of the second truck, who was working at the rear of his truck, was slightly injured when the first truck was pushed forward by the dump truck. The officer observed heavy damage to the dump truck's front right fender and minor damage to the rear left of the truck that was hit by the dump truck.
Officer Cowden saw the defendant "staggering between the vehicles." The defendant said that he was the driver of the dump truck. Officer Cowden noticed that the defendant's face was flushed, that his eyes were bloodshot, and that there was a strong odor of alcohol on his breath. Officer Cowden administered three field sobriety tests to the defendant with his consent. While the defendant appeared able to follow the officer's instructions, the officer stated he failed each test. The defendant told Officer Cowden that he had been drinking the night before and had one drink during the day to "take the edge off."
The defendant testified that he had several drinks the night before between 9:00 P.M. and 2:00 A.M., going to sleep about 2:30 A.M. and getting up to go to work at 5:00 A.M. He felt "a little hung over" when he woke up that morning. He drove his car about ten miles to pick up his truck, then drove it through Kelley Square to join a municipal crew to load the truck with leaves and take them to a dump about twenty-five miles away. The supervisor of **821 the crew testified that the defendant probably made three such runs until about 2:00 P.M., when the defendant told him he did not feel well and wanted to go home. He did not recall any problem with the defendant's work and did not smell alcohol about him or think the defendant had been drinking. The defendant stated that he felt worse as the day went on because engine exhaust fumes had been entering the *334 driver's compartment of the 1974 truck, which was in "very bad shape." On his way home through heavy traffic, in making a left turn in Kelley Square he steered sharply, the driver's seat bent, he slipped to one side, and was unable to avoid hitting the bumper of the first double-parked truck. He testified that he got out of the truck to talk to the other two drivers, and that two State troopers on motorcycles appeared, examined his license and registration, and left without making further inquiry. He denied telling Officer Cowden that he had a drink that day.
2. Motion for required finding of not guilty. To convict the defendant of operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth was required to prove that the defendant (1) operated a vehicle, (2) on a public way, (3) while under the influence o
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