Commonwealth v. Ahern

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17-P-948 Appeals Court
COMMONWEALTH vs. MICHAEL AHERN.
No. 17-P-948.
Suffolk. October 11, 2018. - October 7, 2019.
Present: Green, C.J., Hanlon, & Maldonado, JJ.
Motor Vehicle, Homicide, Operating under the influence.
Alcoholic Liquors, Motor vehicle. Evidence, Intoxication.
Practice, Criminal, Presumptions and burden of proof,
Argument by prosecutor, New Trial.
Indictment found and returned in the Superior Court
Department on November 14, 2012.
The case was tried before Christopher J. Muse, J., and a
motion for a new trial, filed on March 16, 2017, was heard by
him.
Dara Z. Kesselheim, Assistant District Attorney (Gregory D.
Henning, Assistant District Attorney, also present) for the
Commonwealth.
Sean M. Smith for the defendant.
HANLON, J. After a jury trial, the defendant, Michael
Ahern, was convicted of motor vehicle homicide while under the
influence of an intoxicating substance, G. L. c. 90, § 24G (a).
2
After trial, he moved for a new trial, contending that, in
closing argument, the prosecutor had shifted the burden of proof
to the defense. The trial judge allowed the motion and the
Commonwealth appeals. We reverse.
1. Background. The jury heard the following evidence. On
September 13, 2012, at approximately 4:30 P.M., the defendant
and a friend went to a Boston restaurant for drinks and
appetizers. While they were there, the defendant consumed one
Amstel Light beer. At around 5:46 P.M., the defendant and the
friend left the restaurant, and the defendant drove her to South
Boston.
At approximately 9:48 P.M., the defendant walked into the
Slate Bar & Grill (Slate) at 109 High Street in Boston and
ordered a glass of champagne. At just after 10 P.M., Lindsey
Smith, the bar manager at Slate, selected a bottle of champagne
and brought it to the defendant at a table.1 She poured some
champagne in a glass for herself and some in a glass for the
1 Smith was acquainted with the defendant, who had been
instrumental in helping her obtain the job as bar manager at
Slate. She believed he was one of the owners, along with
several other people. Smith testified that she was permitted to
serve certain people, including owners, regulars at the bar, and
friends without charging them; she described the process as a
"comp tab" and said that, at least a couple of times, the
defendant had not paid his tab for that reason. Smith also
identified various surveillance cameras located "[a]ll the way
down at the opening of the bar" and "one . . . above the kitchen
door."
3
defendant. Smith drank only some of her glass of champagne
because she was working; she testified that she spent about an
hour with the defendant, using the time to complain about her
general manager. She was emphatic that she had not finished her
glass of champagne, or consumed anything else from the bottle.
Videotape footage (video) from the establishment showed the
defendant switching the glasses, taking Smith's partially full
glass, and drinking what was left in the glass. He then
appeared to finish drinking what was in the bottle of champagne
by tipping it upwards and emptying its contents. At around 11
P.M., Smith went back to the bar area of the restaurant, and the
defendant moved from his table to the bar. Smith then opened a
second bottle of champagne and poured a glass for the defendant.2
Brian Schmidt also testified that he worked at Slate on the
night in question. He knew the defendant and believed him to be
one of the owners. Schmidt remembered that, earlier in the
evening, Smith had received a text from the defendant that he
was on the way and so they "kind of notified everybody that one
of the owners [was] coming in, don't close the kitchen early,
don't start breaking down for the night, you know, leave
everything in order." Schmidt testified that the defendant sat
2 Smith also testified that the defendant's vehicle was in
the parking lot of the bar when the defendant was present, the
same Ford pick-up truck that killed the victim.
4
with Smith in the dining area for about an hour and then moved
to the bar. At around midnight, Schmidt heard a glass break; he
saw that it had happened at the place where the defendant was
sitting. Right afterwards, he heard the door open and saw the
defendant leave -- "[n]ot a stroll out the door but just kind of
with intent."3
Shortly after 12:15 A.M., Boston Police Officer Marilynne
Gaffey noticed the defendant's pickup truck stopped on the side
of Morrissey Boulevard in the Dorchester section of Boston. She
also saw the victim, Doan Bui, and his bicycle lying in the
road. She stopped, called for backup and medical assistance,
and went to help the victim, who was nonresponsive. He was
3 Schmidt described the defendant's leaving as "an Irish
exit. It's kind of a no goodbye, didn't hear anything from him,
just kind of, he was gone, up and left." In summarizing
Schmidt's testimony in his closing argument, the prosecutor
repeated the term. The judge took exception to the use of the
term "Irish exit"; he wrote in his decision allowing the
defendant's motion for a new trial that "while it may not have
been intended, this comment conjures up the worst of stereotypes
and is insulting and offensive to many. Comments on ethnicity
have no place in a courtroom. Even though it originated with a
witness, its repetition by the prosecutor was unwarranted and
potentially prejudicial." We agree that ethnic slurs and
stereotypes should be avoided in the court room; however, trial
lawyers take their witnesses as they find them, and repetition
of this particular term cannot be said to be prejudicial here,
as it did not relate to the defendant's character, driving,
intoxication, or use of alcohol. Moreover, at oral argument,
defense counsel explicitly disclaimed any claim that use of the
term was prejudicial here.
5
dressed in a black hooded sweatshirt. Emergency medical
technicians (EMTs) Matthew King and Christopher Mancuso arrived
soon after Gaffey and determined that the victim was dead.4
The EMTs found the defendant sitting against a fence by the
side of Morrissey Boulevard. Both EMTs noticed that the
defendant had slurred speech, and King noticed that he had
glossy eyes, as if he had been crying. State Police Trooper
Gregory Turco spoke with the defendant and testified that the
defendant's responses were "unintelligible" because his speech
was slurred. Turco testified that, based upon "[t]he odor of
alcohol, his inability to look us in the eye when he was
speaking with us, his confusion, his confused state, and based
on what we saw, our interactions with him, I formed an opinion
that, yes, he was intoxicated." Turco's partner, State Police
Trooper Richard Lauria, also testified that, in his opinion, the
defendant was intoxicated. When he spoke to the troopers, the
defendant said that he had "found" the victim and appeared not
to understand that there was damage to his truck.
4 The victim's wife testified; she said that her husband was
the primary caretaker for their two children. In the summer, he
liked to go fishing at night near the gas tank on Morrissey
Boulevard. They would have a cookout with the fish and give
some of it away. She also testified that her husband frequently
rode his bicycle and that he was a good bicyclist -- "he’s
careful and he knows his way on the road." The last time that
she saw her husband alive was in the afternoon, hours before he
was killed, as he was preparing to go fishing.
6
At the defendant's request, the EMTs transported him to
Boston Medical Center. During the ride, Mancuso rode with the
defendant in the back of the ambulance and noticed the smell of
alcohol on his breath. Mancuso, who had been an EMT for twenty
years and a bartender for five years, testified specifically
that he believed the defendant was intoxicated.
State Police Trooper James DeAngelis followed the ambulance
carrying the defendant to the hospital and he testified that he
noticed the smell of alcohol when the ambulance doors opened.5
DeAngelis also testified that the defendant had slurred speech,
and that, when the defendant was asked to produce his license at
the hospital, "I observed him pass his license once. . . . [He]
passed his license again and then on the third attempt . . . he
pulled it out." DeAngelis concluded his testimony by saying,
"My opinion was that he was drunk."
State Police Detective Thomas Canning, the lead
investigator on the case, interviewed the defendant in the
hospital. He observed the defendant to have somewhat slurred
speech and glassy eyes and noticed an odor of alcohol. He also
watched the defendant stagger from his hospital bed to the
bathroom. Based upon all of his observations, Canning concluded
5 DeAngelis testified, "I immediately detected a fairly
strong odor of an alcoholic beverage coming from within the
vehicle. I remember it being kind of a cool, crisp night and I
was just hit with an odor as the doors opened."
7
that the defendant was intoxicated when he interviewed him at
the hospital.
At Boston Medical Center, Dr. Christopher Amanti examined
the defendant and smelled alcohol emanating from him. Dr.
Harpaul Sandhu assisted with the defendant's treatment, and he
also noticed that the defendant's breath smelled of alcohol.
Both doctors opined that the defendant was intoxicated. In
fact, Sandhu testified that, in his opinion, the defendant was
"very drunk."
A State Police collision analyst later determined that the
defendant's truck had hit Bui from the rear, when Bui was
traveling on a bicycle in a straight line on the right hand side
of the road. At the time, the defendant was traveling at least
fifty miles per hour; the collision knocked the victim's body
154 feet from the point of impact. The speed limit in that
portion of the road was thirty miles per hour.
During his opening statement, defense counsel told the jury
that Gregory Feeney, the defendant's business partner, would
testify to the defendant's whereabouts from approximately 6 P.M.
to 10 P.M. on September 13, 2014. Specifically, counsel told
the jury they would hear testimony from the defendant's business
partner that the two men were at a community meeting and that
there was a back and forth between and among people engaged in
the meeting, an "intellectual exercise" in the late afternoon
8
and early evening -- with the inference that no alcohol was
consumed.
In fact, the defense never called Feeney to testify,
because counsel learned midway through trial that the defendant
was not one of the owners of Slate; as a result, it was
counsel's belief that, if Feeney testified, that information
would discredit the defendant. As a result, the jury never
heard any evidence regarding the defendant's activities between
approximately 6 P.M. and 9:48 P.M. on the night in question.6
The prosecutor made the following statement during his
closing argument:
"Last week [defense counsel] stood up in front of
you and told you you'd receive some evidence about
where Michael Ahern was between [5] P.M. and [9:48]
P.M. You didn't receive any of that evidence. The
only thing you heard is that he dropped off Mary
Pierce after they were at a bar sometime around [5:45]
or [6] P.M.
"You know at [5] P.M. he was at Sel Delaterre and
he was drinking and the next time he pops up on the
grid, it's [9:48] P.M. and he's at a bar and he's
drinking. That's all you know about his whereabouts.
Apply your common sense. When you do that, when
you're diligent and you go through the video, you're
going to notice a couple of things and I'm going to
ask you very specifically how to do this.
"Pull this television up to the table. Sit
around it, all of you. Take out a piece of paper, use
notes, watch each video and count what goes up to his
mouth, count what touches his lips."
6 The defendant ultimately did not call any witnesses.
9
The prosecutor then went slowly through the video evidence,
pointing to each occasion where the defendant was drinking or
appeared to be drinking; he encouraged the jurors to do the same
thing during deliberations. There was no objection to any
portion of the prosecutor's closing argument. The jury
thereafter returned a verdict of guilty on the charge of
homicide by a motor vehicle while under the influence of an
intoxicating substance.
On March 16, 2017, the defendant filed a motion for a new
trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001). He argued that the prosecutor's statement
about the defense's failure to call Feeney constituted improper
burden shifting and that his trial counsel was ineffective.7 The
judge concluded that the prosecutor had impermissibly shifted
the burden of proof to the defense and he allowed the motion.
The judge analyzed the issue, essentially, as one involving a
missing witness and viewed the prosecutor's argument as calling
for the jury to draw a negative inference from the defense's
7 The defendant also argued that defense counsel had been
ineffective when he told the jury in his opening that Feeney
would testify and then failed to call him as a witness. The
judge rejected that claim, concluding that "trial counsel's
decision against calling Mr. Feeney was a reasonable strategic
decision where the testimony threatened to harm the
[d]efendant's case." The defendant does not challenge that
decision here.
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failure to call Feeney as a witness. In the judge's view, the
argument created a substantial risk of a miscarriage of justice.
2. Discussion. "We review the allowance of a motion for a
new trial for abuse of discretion or error of law," Commonwealth
v. Downey, 65 Mass. App. Ct. 547, 552 n.12 (2006), accepting all
of the judge's findings "if supported by the evidence,"
Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We pay
particular deference to the motion judge where, as here, he was
also the trial judge. Id. However, because there was no
objection to the prosecutor's closing argument, we review to
determine whether there was error and, if so, whether the error
created a substantial risk of a miscarriage of justice. See
Commonwealth v. Harris, 481 Mass. 767, 777 (2019); Commonwealth
v. Ferreira, 460 Mass. 781, 788 (2011).
"In closing argument, a prosecutor may argue 'forcefully
for a conviction based on the evidence and on inferences that
may reasonably be drawn from the evidence.' Commonwealth v.
Kozec, 399 Mass. 514, 516 (1987). In doing so, the prosecutor
may not shift the burden of proof or argue that the defendant
has any affirmative duty to prove his innocence." Commonwealth
v. Fernandes, 478 Mass. 725, 741 (2018). However, "[i]f he
speaks with propriety on matters on the record before the jury,
a prosecutor may properly comment on the trial tactics of the
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defence and on evidence developed or promised by the defence."
Commonwealth v. Dunker, 363 Mass. 792, 800 (1973).
"Closing arguments must be viewed 'in the context of the
entire argument, and in light of the judge's instruction to the
jury, and the evidence at trial.' [Commonwealth v. Braley, 449
Mass. 316,] 328-329 [(2007)], quoting Commonwealth v. Colon-
Cruz, 408 Mass. 533, 553 (1990)." Commonwealth v. Muller, 477
Mass. 415, 431 (2017). Here, defense counsel promised in his
opening statement that Feeney would testify as to the
defendant's whereabouts for a substantial portion of the
evening; Feeney was never called. As a result, the prosecutor
was entitled to note in his closing argument the absence of that
evidence from the record. See Commonwealth v. Tavares, 27 Mass.
App. Ct. 637, 642-643 (1989) ("Although defense counsel in his
opening stated that he would produce witnesses who were with the
defendant at 11 P.M. on the night of the incident, none was
produced. After the prosecutor, in closing, referred to the
defendant's stated intention in opening argument to produce
witnesses, the defendant moved for a mistrial. . . . In view of
the defendant's opening argument and his claims of alibi, the
prosecutor's remarks were not improper").
Significantly, the Supreme Judicial Court recently
reiterated, in the context of an allegation that the
prosecutor's argument was burden shifting, "'[a] prosecutor is
12
entitled to emphasize the strong points of the Commonwealth's
case and the weaknesses of the defendant's case, even though he
[or she] may, in so doing, prompt some collateral or passing
reflection on the fact that the defendant declined to testify.'
Commonwealth v. Nelson, 468 Mass. 1, 12 (2014), quoting
Commonwealth v. Feroli, 407 Mass. 405, 409 (1990)."
Commonwealth v. Collazo, 481 Mass. 498, 503 (2019).
Furthermore, as the judge emphasized in his findings, the
promised witness would not have testified to a time that was
particularly relevant to the crime charged. The accident
occurred at midnight, and the witness left the defendant before
he walked into Slate. And, after the challenged comment, the
prosecutor's argument examined the defendant's behavior at Slate
in detail.
It is significant here that experienced defense counsel did
not object to the argument. See Commonwealth v. Montez, 450
Mass. 736, 748 (2008) ("'Although not dispositive of the issue,
the absence of [an objection on this precise point and the
absence of a request for a curative instruction] from
experienced counsel is some indication that the . . . substance
of the now challenged aspects of the prosecutor's argument were
not unfairly prejudicial.' Commonwealth v. Toro, 395 Mass. 354,
360 (1985). Moreover, the judge's forceful instruction that the
defendant is presumed innocent, that he does not have to prove
13
his innocence, and that the Commonwealth must prove each
essential element of the crimes charged beyond a reasonable
doubt mitigated any potential prejudice. [Kozec, 399 Mass. at
517]"). Here, too, the judge explicitly and appropriately
charged the jurors, both before and after closing arguments,
that arguments of counsel are not evidence and should not be
regarded as such.
Finally, even were we to accept the defendant's contention
that the prosecutor's comment improperly asked the jury to
infer, from the absence of the promised evidence, that the
defendant was drinking between 6 P.M. and 10 P.M., we see no
risk of a miscarriage of justice. The evidence here was
overwhelming. The jury viewed video that showed the defendant
drinking at least one, and at least part of another, bottle of
champagne at a bar shortly before the accident. The
Commonwealth offered the testimony of four State Police
officers, an EMT, and two emergency room doctors who opined that
the defendant was intoxicated when they spoke with him shortly
after he struck Bui with his truck while speeding on Morrissey
Boulevard in Dorchester that night. No other element of the
crime charged was at issue. In addition, there was considerable
evidence of consciousness of guilt. The defendant gave
conflicting accounts of his behavior, responding at least once
14
that he had nothing to drink and on other occasions saying that
he had one beer or "had one drink at work."
Certainly, we see no risk of a miscarriage of justice in
the jury's verdict. For all these reasons, we conclude that the
judge abused his discretion in allowing the defendant's motion
for a new trial; the order is therefore reversed.
So ordered.