NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-104
COMMONWEALTH
vs.
WILLIAM A. ROGERS, THIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant, William Rogers, was
convicted of operating a motor vehicle while under the influence
of alcohol, see G. L. c. 90, § 24 (1) (a) (1).1 On appeal, he
challenges the sufficiency of the evidence and the admissibility
of statements of a percipient witness, and urges us to reverse
his conviction based on an error in the prosecutor's closing
argument. We affirm.
1. Sufficiency. The defendant contends that the evidence
was insufficient to show that he was operating under the
influence of alcohol. To prove that he was operating under the
influence, "[t]he Commonwealth need not prove that the defendant
1 Charges of operating with a revoked license as a habitual
offender under G. L. c. 90, § 23, and of disguising to obstruct
justice under G. L. c. 268, § 34, were dismissed.
actually drove in an unsafe or erratic manner, but it must prove
a diminished capacity to operate safely." Commonwealth v.
Connolly, 394 Mass. 169, 173 (1985).
A McDonald's restaurant patron going through the drive-
through discovered a running vehicle blocking the way.2 The
driver approached the driver's side of the vehicle and saw the
defendant, who was unresponsive, "slouched over" the steering
wheel, and holding a cigarette that had burned down to the
filter. The driver called the police. It took the driver's
fiancée, a nurse, forty-five seconds to rouse the defendant and
confirm he was awake.
The responding officer approached the driver's side of the
vehicle. He had to knock on the window twice and yell to get
the defendant's attention. The defendant was "slumped over at
the neck, appeared to be sleeping" and had a McDonald's
hamburger in his lap. The officer noticed that the defendant
had red, bloodshot, and glossy eyes, and slurred speech. When
the officer asked him if he knew where he was, the defendant
responded, "Here." When asked for a license, the defendant said
he didn't have one. The defendant also said that he had one
beer earlier in the evening.
2 It was parallel parked running across the exit from the drive-
through.
2
The defendant agreed to complete roadside assessments, and
after struggling to get out of the vehicle on his own, failed to
complete all three assessments to the officer's satisfaction.
The officer concluded that the defendant was impaired and placed
him under arrest.
These facts are sufficient to show that the driver suffered
from a diminished capacity to drive safely. See Connolly, 394
Mass. at 173. He was unable to stay awake, he was parked in a
manner that blocked oncoming drivers and suggested he was
unaware of the surroundings, he was difficult to rouse, he could
not provide clear answers to simple questions, and, according to
the officer on the scene, he was slurring his speech. See
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393
(2017). In addition, he was unable to complete the field
assessments to the officer's satisfaction. Id. The verdict was
supported by the evidence.
2. "Hearsay." On direct examination, the driver who
attempted to assist the defendant testified that the defendant
slurred his words. On cross-examination it emerged that the
driver's fiancée was speaking with the defendant while the
driver was on the telephone, and that the driver could not hear
the words spoken but could hear that the defendant was mumbling.
Although no objection was lodged at the time, the defendant now
3
argues that the reference to slurred speech was inadmissible
hearsay.
The difficulty with this argument is that, at the time the
testimony was heard on direct examination, it emerged as a
proper answer to a proper question. The possibility that the
speaker lacked first-hand knowledge, or may have repeated what
he heard from his fiancée, materialized only on cross-
examination. However, at this juncture there was no objection
or motion to strike. See Commonwealth v. Grady, 474 Mass. 715,
720-721 (2016) (motion to strike required where question proper
but answer was not). We therefore review for error, and if
there was error, for a substantial risk of a miscarriage of
justice.
We are not persuaded that the testimony on cross-
examination fatally undermined the testimony on direct
examination. The witness could hear the defendant's voice. Nor
are we persuaded that the distinction between "slurred" and
"mumbled" rises to the level of evidentiary error, or that if it
did, such an error led to a substantial risk of a miscarriage of
justice. The responding officer also testified that the
defendant's speech was slurred. The evidence of the defendant's
inert and unresponsive physical condition was compelling, and
the evidence was otherwise strong.
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3. Closing argument. When summarizing the evidence during
closing argument, the prosecutor said, "I told you at the
beginning of this trial that the case would be simple. You
would hear from two witnesses who will tell you -– who testified
that the defendant was operating under the influence of alcohol
on that evening." While the prosecutor was permitted to argue
in summation that the Commonwealth had proven that the defendant
was operating under the influence, this statement was marginally
in error for two reasons. First, the testimony was that the
defendant was impaired, not that he was driving under the
influence. For this reason, the prosecutor's summation did not
accurately describe the evidence. See Mass. G. Evid. § 1113
note, subsection (b)(2) (2022). Cf Commonwealth v. Perez, 444
Mass. 143, 150-151 (2005), and cases cited. Second, any such
testimony regarding the ultimate issue in the case would have
been improper. See Commonwealth v. Canty, 466 Mass. 535, 544
(2013). However, the jury were instructed to take their own
recollection of the evidence, and that closing arguments were
not evidence. We presume that the jury followed those
instructions. Id. at 545.
Moreover, there was no objection to the summation, and for
the reasons stated in Canty, 466 Mass. at 545, we discern no
substantial risk of a miscarriage of justice. The evidence was
strong, and the prosecutor was entitled to argue that the
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Commonwealth had proven that the defendant was operating under
the influence of alcohol. The prosecutor's error in attributing
testimony to the witnesses, rather than making the same point in
argument, was a misstep, but she was entitled to urge on the
jury a finding of guilt. We may attribute to the jury a measure
of common sense and sophistication that would permit them to
separate facts from overstatement. See Commonwealth v. Silva,
455 Mass. 503, 515 (2009) ("The jury are assumed to possess
sufficient sophistication in sorting out excessive claims").
Judgment affirmed.
By the Court (Sullivan,
Shin & Hodgens, JJ.3),
Clerk
Entered: February 10, 2023.
3 The panelists are listed in order of seniority.
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