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Commonwealth v. Thomas4/6/1998
Middlesex.
December 5, 1997.
In making his closing argument, the assistant district attorney made one minor and one major misstatement of fact. On balance, and particularly in light of the strength of the government's case, we are not persuaded by the argument of the defendant that the missteps in the prosecutor's closing require reversal. Terry Thomas, the defendant, was found guilty by a jury of operating a motor vehicle while under the influence of intoxicating liquor. Two other counts in the complaint, operating a motor vehicle after his license had been suspended (G. L. c. 90, Section 23) and possession of a Class D substance (G. L. c. 94C, Section 34), were put to the District Court Judge who presided at the trial, and he found the defendant guilty. On appeal, in addition to the claim of improper closing argument, the defendant urges that the Judge improperly allowed the prosecutor to cross-examine the defendant about prior arrests for driving while under the influence of liquor and that the Judge engaged in an inadequate colloquy with the defendant who, after the close of the evidence, chose to waive putting to the jury any count other than the one for operating while under the influence of liquor (OUI).
These are the facts the jury could have found, taking the evidence in the light most favorable to the Commonwealth. Shortly before 2:00 A.M. on April 11, 1996, Stephen Altieri, a State trooper, stopped the defendant for speeding. The defendant had been doing seventy-nine miles per hour, significantly over the sixty-five mile per hour limit. Trooper Altieri smelled "a moderate odor of intoxicating beverage coming from the vehicle," in which the defendant was alone. Uncertain whether the odor was an emanation of the vehicle or an exhalation of the defendant, Trooper Altieri asked the defendant to recite the alphabet. The defendant managed that task but his speech was slurry and hard to understand; his eyes were bloodshot.
Now quite satisfied about the source of the smell of alcohol, Trooper Altieri ordered the defendant out of his car for field sobriety tests. The defendant fell back against his car when he stepped out. He had to push himself off the vehicle to regain his footing and then walked unsteadily. Trooper Altieri administered the one-legged stand test, in which the subject is asked to stand on one leg while the tester counts to thirty. The defendant did badly; he had to flap his arms for balance, put his leg down at the count of seven, eighteen, nineteen, and twenty-one and gave up on the test altogether at the count of twenty-one. "I can't do it," the defendant said. Then came the nine-step heel-to-toe test. That test the defendant also failed dramatically.
Persuaded that the defendant was drunk, Trooper Altieri placed him under arrest. An inventory search of the car turned up a six-by-four-inch box containing marihuana. At the State police barracks, the defendant took a breathalyzer test on which he blew a blood alcohol level of .11, above the statutory presumption of impaired status that an .08 reading would produce. See G. L. c. 90, Section 24(1)(e). The booking officer, Trooper Peter Kane, checked off the defendant's state of intoxication as obvious on a rating scale of extreme, obvious, slight, and none.
1. Claim of improper cross-examination. The defendant had been convicted thrice before of drunk driving, facts that his counsel moved in limine to exclude, should the defendant testify. That motion was allowed. During direct examination of the defendant, his counsel inquired whether he had been advised of his constitutional rights while being booked. In that connection, defense counsel asked: "Were you familiar with t
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