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 19-P-711 COMMONWEALTH vs. JAY T. HANNAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jay T. Hannan, appeals from a conviction, after a District Court jury trial, of operating under the
influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1).1
Concluding that the defendant's various claims of reversible error lack merit, we affirm the conviction and the denial of his two motions for a new trial.
1. Knowing introduction of false testimony. "[I]f 'through misfeasance or nonfeasance by the prosecutor, false testimony is introduced . . . , [a] conviction will be set aside
1 The jury also convicted the defendant of failure to stop for
police, G. L. c. 90, § 25. This conviction was filed with the defendant's consent. See Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 309 n.1 (2018). After the jury returned their
verdicts, the defendant pleaded guilty to the fourth offense portion of the complaint as well as to a complaint for operating a motor vehicle after a suspension, G. L. c. 90, § 23.
if there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury."'" Commonwealth v. Hill, 432 Mass. 704, 716 (2000), quoting Commonwealth v. Collins, 386 Mass. 1, 9 (1982).
The defendant argues that two statements2 made by a police
lieutenant during direct examination constitute deliberately elicited false testimony. The lieutenant later testified in a Federal civil whistleblower lawsuit that, between 2009 and August 2012, booking videos were recorded but not produced to prosecutors or defense counsel. At trial here, the prosecutor disclosed at sidebar that he had been tasked with providing missing booking videos from August 2012 to defense attorneys in seven to nine cases. He stated that "this is not one of those cases, obviously, because this is a February 2013 case." The prosecutor's statement is supported by testimony in the Federal suit that the booking cameras were shut off in August 2012. Additionally, a captain stated in his affidavit that there was no recording for the defendant's booking. There is simply no evidence that the prosecutor knew the lieutenant's testimony was
2 "[D]oes it have the ability to take video? Um, I think it may,
but it's set up as a booking camera. We don't usually take video with it." "Did they record that evening, do you know? Uh, all but the booking area camera from what I'm told. . . .
false (assuming it was false). See Commonwealth v. Smith, 412 Mass. 823, 837 (1992).
2. Denial of motions for new trial. "In reviewing the denial of a motion for new trial, we 'examine the motion judge's conclusions only to determine whether there has been a
significant error of law or other abuses of discretion.'" Commonwealth v. Ferreira, 481 Mass. 641, 648 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "In
determining whether a 'substantial issue' meriting an
evidentiary hearing . . . has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing." Commonwealth v. Smith, 90 Mass. App. Ct. 261, 264 (2016), quoting Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981).
a. Ineffective assistance of counsel. When the basis for a motion for a new trial is a claim of ineffective assistance of counsel, "the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as
here, the trial judge." Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020), quoting Commonwealth v. Martin, 467 Mass. 291, 316 (2014).
Defense counsel knew that the defendant had medical issues that affected his balance, gait, and mobility. Counsel choose to bypass medical evidence "because the most recent treatment was a while before the incident." The defendant's medical evidence would not have provided an otherwise available,
substantial ground of defense. The defendant's medical expert stated merely that his various medical conditions "could affect" his gait, balance, and ability to stand up from a seated
position, and that his diabetic sensory neuropathy "would
affect" those abilities. The extent that those abilities would be affected was not discussed. This tepid evidence would not have provided a substantial ground of defense, because the defendant's gait and balance was a minor part of the
Commonwealth's evidence of intoxication. Witnesses testified that (1) the defendant's eyes were "bloodshot" and "glassy"; (2) his speech was slurred; (3) he had a "strong odor of alcohol emanating from his person"; (4) he yelled "a lot of things that didn't make sense"; (5) he shouted profanities at the police; and (6) he was confused about how to use the phone despite multiple instructions and being provided his own cell phone. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390-391
(2017) (testimony of defendant's bloodshot and glassy eyes, slurred speech, odor of alcohol coming from her person, and unsteady balance were compelling evidence of defendant's
intoxication). Additionally, the defendant repeatedly refused to follow police instruction (1) to pull over his vehicle;
(2) to exit his vehicle; (3) to put his arms behind his back for handcuffs; (4) to exit the police cruiser; and (5) to sign
paperwork. We discern no error in the denial of the first motion for a new trial without an evidentiary hearing on this ground.
b. Failure to disclose whistleblower suit. "Due process requires that 'the government disclose to a criminal defendant favorable evidence in its possession that could materially aid the defense against the pending charges.'" Commonwealth v. Laguer, 448 Mass. 585, 593 (2007), quoting Commonwealth v.
Daniels, 445 Mass. 392, 401 (2005). Evidence is exculpatory if it "provides some significant aid to the defendant's case,
whether it furnishes corroboration of the defendant's story, calls into question a material, although not indispensable, element of the prosecution's version of the events, or
challenges the credibility of a key prosecution witness."
Daniels, supra at 401-402, quoting Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).
The defendant argues that the Commonwealth was required to disclose the lieutenant's whistleblower lawsuit regarding the 2009 to 2012 booking videos. Even assuming that this employment dispute was exculpatory in the defendant's case, the lieutenant was not a key prosecution witness. Contrast Smith, 90 Mass. App. Ct. at 267-268. The lieutenant's testimony was cumulative of two police witnesses who testified about the defendant's behavior during the arrest and at the police station.
Accordingly, we discern no error in the judge's decision to deny the defendant's second motion for a new trial. See Commonwealth v. Healy, 438 Mass. 672, 680, 685 (2003).
3. Prosecutor's closing argument. "Closing argument must be limited to discussion of the evidence presented and the
reasonable inferences that can be drawn from that evidence." Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). "Counsel may, however, zealously argue in favor of those inferences favorable to his or her case." Id. The defendant objected to "some of the things in the closing," but the defendant has produced no showing that he objected on any of the grounds raised before us. See Commonwealth v. Alphonse, 87 Mass. App. Ct. 336, 339 n.5
(2015) ("The appellant has the burden to produce the record on appeal"). According, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Shanley, 455 Mass. 752, 773 (2010).
The defendant claims that the prosecutor made irrelevant statements in closing argument. The prosecutor stated, "I just walked up here, holding my hands together, I'm not unsteady on my feet." The prosecutor is entitled to "set the stage." Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 544 n.3 (2009). These remarks were meant to remind the jury of the testimony about the defendant's lack of balance. We discern no error with the prosecutor's "rhetorical flourish." Commonwealth v. Cole, 473 Mass. 317, 332 (2015).
The defendant claims that the prosecutor improperly referenced the defendant's failure to testify. "[I]n life, there are two sides to every story . . . but I believe in this case, all we really have is a story that the defense [c]ounsel told you. And then we have the facts, which came from the officers' testimony." There is nothing improper in a
prosecutor's arguing that the evidence does not support the defendant's theory of the case. See Commonwealth v. Silva, 471 Mass. 610, 622-623 (2015). Furthermore, "[a] prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant." Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009), quoting Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). Even if the remark were error, it was cured by the judge's "'clear, strong, and correct
instructions' . . . regarding both the Commonwealth's burden and the defendant's right not to testify or present evidence."
Commonwealth v. Elliott, 87 Mass. App. Ct. 520, 525 (2015), quoting Commonwealth v. Nelson, 468 Mass. 1, 13 (2014).
Nonetheless, it was improper for the prosecutor to reference his own beliefs. See Commonwealth v. Sylvia, 456 Mass. 182, 194 (2010) ("The prosecutor should not have injected his personal observations or beliefs, or intimate independent knowledge, by employing the words 'I know' in his argument"). The passing comment, however, did not create a substantial risk of a miscarriage of justice.
The defendant argues that the prosecutor impermissibly lowered the burden of proof by stating that "[y]our job as
jurors is not just sit and pick apart the case by each piece of evidence. You're supposed to look at the whole picture, like it's a movie, and weight everything together." "[A] prosecutor may attempt to 'fit all the pieces of evidence together' by suggesting 'what conclusions the jury should draw from the evidence.'" Commonwealth v. Diaz, 478 Mass. 481, 487 (2017), quoting Commonwealth v. Burgess, 450 Mass. 422, 437 (2008). Moreover, immediately after closing arguments the judge told the jury that they were to follow his instructions, not counsel's comments. See Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835 n.13 (2018).
The defendant argues that the prosecutor's reference that the driver was not looking for a safe place to stop is not
supported by the evidence. "[C]losing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts." Commonwealth v. Alvarez, 480 Mass. 299, 305 (2018), quoting Commonwealth v. Rutherford, 476 Mass. 639, 643 (2017). The arresting officer testified, "As I went to get out of my vehicle, the vehicle started to continue driving away slowly . . . . Several cruisers came from the opposite
direction, down Hudson Street and the vehicle stopped on Hudson Street." The prosecutor's argument was a fair inference based on the arresting officer's testimony. See Commonwealth v. Smith, 450 Mass. 395, 408 (2008).
4. Police testimony about intoxication. "[A]n opinion regarding a defendant's sobriety is a lay opinion, not an expert opinion." Gallagher, 91 Mass. App. Ct. at 397 n.4, quoting
Commonwealth v. Canty, 466 Mass. 535, 541 (2013). "[T]he risk of prejudice arising from the admission of an opinion that
closely touches on the ultimate issue of guilt is less with lay opinion than with expert opinion, even where the lay opinion is offered by a police officer, because it is less likely that a jury would 'forego independent analysis of the facts and bow too readily to the opinion' where it is not reached through the
specialized knowledge of an expert." Canty, supra at 545, quoting Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977).
Here, the defendant challenges the lieutenant's "opinion that [the defendant] was intoxicated." There was, however, no such testimony. The lieutenant merely testified that he "made observations . . . consistent with somebody who had been
consuming [an] alcoholic beverage." He then listed these
observations, including a strong odor of alcohol, unsteadiness, combativeness, red and glassy eyes, and mood swings. There was no error in the lieutenant's reporting his observations.
5. Conclusion. The defendant's conviction is affirmed. The orders denying the defendant's motions for a new trial are affirmed.
So ordered.
By the Court (Sacks,
Ditkoff & Englander, JJ.3),
Clerk
Entered: July 13, 2020.
