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Com. v. Harty12/16/2003
The defendant was convicted by a District Court jury of operating a motor vehicle while intoxicated and negligent operation of a motor vehicle. Subsequently, in jury-waived proceedings, the defendant pleaded guilty to operating a motor vehicle while intoxicated as a second or subsequent offense and operating a motor vehicle with a suspended license (by virtue of a prior conviction for OUI). In due course the defendant filed a motion for new trial, which was allowed to the extent of vacating the convictions obtained at the jury-waived proceedings (i.e., operating a motor vehicle while intoxicated as a second or subsequent offense and operating a motor vehicle with a suspended license). The defendant now appeals from the remaining jury convictions and from the denial of his motion for new trial with respect to those convictions. We affirm
Based on the evidence presented at trial, the jury could have found as follows. At approximately 4:00 A.M. Trooper Adam Crook spotted the defendant's sport utility vehicle traveling between eighty-three and eighty-five miles per hour along a stretch of I-290 near downtown Worcester. The defendant's car swerved from lane to lane as it sped along. Trooper Crook followed the defendant for a short distance, then pulled him over.
The officer approached the defendant's car and asked the defendant for his license and registration. The officer detected a very strong odor of alcohol in the car and also noticed that the defendant's eyes were bloodshot and glassy. The defendant seemed confused and had trouble complying with the trooper's requests. After administering field sobriety tests, Trooper Crook formed the opinion that the defendant was driving while intoxicated and placed him under arrest.
Other relevant facts are included in our analysis of the claims.
Closing Speech. In discussing the relative credibility of Trooper Crook and the defendant, the prosecutor stated:
"Tonight, tomorrow, a week from now, a month from now ... at some point someone may say or ask you or tell you or say 'I got jury duty this week.' [You will reply] Well I served on a jury about a week ago. Well what kind of case was it? Well it was an operating under the influence of alcohol and also negligent operation type case.
"Think about it intellectualwise. Rationalize how you explain that to a person you're saying I sat on a case and this is what the facts were.
"Well a trooper got up there and and told me it was 290 west bound, that the vehicle was going eighty-three to eighty-five miles an hour. It was weaving in and out of traffic. It was four o'clock in the morning, from a Saturday to a Sunday morning.
"The defendant and his friend on the stand said that they had been playing cards until two o'clock in the morning. He's ... heading somewhere. He's in Worcester. He's going that fast. He's weaving.
"[The trooper testified] I pull him over. He stinks of booze, essentially. His eyes are bloodshot and glassy. When I get him out of the car he can't produce his license and registration. On two separate occasions he seems confused. I ask him out of the vehicle, he's extremely unsteady on his feet
***2 "... Those are the facts that you're going to tell whoever that you explain that you sat on a jury. What do those add up to?" (Emphasis added.)
Without question, this line of argument was improper.
In Commonwealth v. Matthews, 31 Mass.App.Ct. 564, 572-573 (1991), we held that it was error for a prosecutor to argue "that the jury [will] have to answer" for their verdict to members of the public after the trial has concluded. The jury's role "is limited to finding facts on the basis of the evidence, dispassionately and impartially." Id. at 573. Argument that suggests that a verdict should be informed by considerations beyo
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