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Commonwealth v. Ramirez5/19/1998
and at the booking stage, including Cummings, testified that he was under the influence of alcohol. Therefore, because any of Cummings's testimony concerning the correlation of the blood alcohol level with his observations of the defendant would be cumulative, the Judge acted within his discretion in excluding that portion of Cummings's testimony. Commonwealth v. Cokonougher, 35 Mass. App. Ct. 502, 505 (1993) (judge can exclude witnesses' testimony, including that of expert witnesses, when their testimony is cumulative or repetitive).
Finally, the Judge acted within his discretion in ruling that Cummings was not qualified to give an opinion as to whether the defendant's blood alcohol level would have been significantly higher at the time of the homicide than it was at the time the breathalyzer test was given. We think that it was within the common knowledge of jurors that an intoxicated person, once he stops drinking, becomes less intoxicated over time. Further, the medical examiner testified that a person's blood alcohol level decreases over time.
2. Claim of improper remarks in prosecutor's summation. The defendant claims that the prosecutor committed prejudicial error when he argued that justice had been denied to the victim, his family and the community for thirteen years and that "it does not need to be denied any longer." There was an objection to the comments, and a motion for a mistrial was denied.
There was evidence introduced at trial that the defendant had fled the jurisdiction and, as a result, there had not been a trial until thirteen years after the homicide. In that context the remarks were not prejudicial. Further, the prosecutor did not ask the jury for a guilty verdict or "for a 'proper verdict' (with the understanding that a proper verdict would be a guilty verdict)." Commonwealth v. Moore, 408 Mass. 117, 129 (1990). Finally, the jury were obviously not completely persuaded by the prosecutor's argument. They rejected the Commonwealth's theory that the defendant had deliberately murdered the victim and instead returned a verdict of manslaughter. See Commonwealth v. Rogers, 43 Mass. App. Ct. 782, 787-788 (1997) (jury that acquitted defendant of several charges were unlikely to have been swept away by prosecutor's argument). Therefore, even if the remarks were error, they were not prejudicial.
Judgments affirmed.
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