MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Matthew R. Marcotte, appeals from his conviction after a District Court jury trial of operating a motor vehicle under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1).
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Concluding that the evidence of impairment was sufficient, the prosecutors closing argument did not create a substantial risk of a miscarriage of justice, and trial counsel was not ineffective, and discerning on this record no error in the judges ruling with respect to the admission of prior bad acts, we affirm.
1. Sufficiency of impairment evidence. When reviewing the denial of a motion for a required finding of not guilty, “we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).
The defendant challenges the Commonwealths proof that the defendant was impaired. “[T]he phrase ‘under the influence’ refers to impairment, to any degree, of an individuals ability to safely perform the activity in question.” Tsonis, 96 Mass. App. Ct. at 218, quoting Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (2016). “The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely.” Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).
Here, the jury could reasonably have found that the defendant was impaired. Upon approaching the defendants vehicle, which was parked half in the road and half in the entrance of a parking lot, the officers observed the defendant sleeping in the drivers seat with the lights on and the car running. After an officer banged on the window of the vehicle to get the defendants attention, the defendant stirred, then went back to closing his eyes. Another officer banged on the window again, with no answer, and then opened the drivers side door and had to yell to see if the defendant was all right. There was a strong smell of alcohol emanating from the vehicle, and the officers observed several empty containers of alcohol and one full container sitting on the passengers seat.
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Upon being asked how much he had to drink, the defendant said, “whatevers left.” As the defendant spoke, the officer noticed the smell of alcohol on his breath, and observed his bloodshot and glassy eyes. The defendant appeared confused and had slurred speech. Without being prompted, the defendant removed his keys from the ignition and dropped them to the floor, and, although he retrieved his license without issue, the officer had to remind the defendant what he was looking for “a couple times” as he was searching for his registration.
When asked to exit the vehicle to perform field sobriety tests, the defendant was “unsteady on his feet” and “couldnt really keep his balance.” He could not balance in the starting position, did not connect heel to toe, used his arms to balance, took the wrong number of steps, walked back normally instead of heel to toe, and could not hold a one leg stand for more than ten seconds.
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The evidence of impairment was sufficient. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) (sufficient evidence of impairment where defendants eyes were bloodshot and glassy, odor of alcohol emanated from her person, and she had slurred speech, admitted to drinking three beers, parked her car “crooked[ly]” across two parking spaces, could not stand straight when being instructed how to perform field sobriety tests, and was unable to properly perform two out of three tests); Rarick, 87 Mass. App. Ct. at 350, 353-354 (sufficient evidence of impairment where, although defendant did not perform field sobriety tests, defendant said he consumed six beers before he was stopped, moderate odor of alcohol emanated from his person, his eyes were red and glassy, and he was speeding).
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2. 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. “Because the defendant did not object to the prosecutors closing statement at trial, we review [any error] for a substantial risk of a miscarriage of justice.” Commonwealth v. Childs, 94 Mass. App. Ct. 67, 76 (2018), quoting Commonwealth v. Proia, 92 Mass. App. Ct. 824, 835 (2018).
Although “prosecutors are entitled to argue ‘forcefully for the defendants conviction,’ closing 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). Here, the prosecutors comment in closing argument was error, as it drew an unreasonable inference by connecting the defendants actions of removing the keys from the ignition and dropping them on the floor to the statements he made as he was being arrested.
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The evidence, or even logic, did not support the inference that the reason the defendant removed the keys from the ignition was because he believed that doing so meant he could not be arrested. Cf. Rakes, 478 Mass. at 46, quoting Commonwealth v. Pope, 406 Mass. 581, 587 (1990) (“ ‘[C]ounsel may present an argument by dramatizing it in imaginary dialogue,’ but that dialogue must remain ‘grounded in the evidence’ ”).
Nonetheless, this comment constituted a small portion of the prosecutors argument, the Commonwealths case was strong, and the judge repeatedly instructed the jury that closing arguments are not evidence. Accordingly, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Johnston, 467 Mass. 674, 695 (2014) (“The absence of an objection is some indication that the argument did not land a hard, foul blow, and was not unfairly prejudicial”); Commonwealth v. Ortiz, 463 Mass. 402, 415 (2012), quoting Commonwealth v. Raposa, 440 Mass. 684, 694 (2004) (“In analyzing a claim of improper argument, the prosecutors remarks must be viewed in light of the ‘entire argument, as well as in light of the judges instruction to the jury and the evidence at trial’ ”).
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3. Prior bad acts. “Evidence of prior bad acts is generally inadmissible to show a defendants propensity to commit a crime.” Commonwealth v. Waterman, 98 Mass. App. Ct. 651, 659 (2020), quoting Commonwealth v. Don, 483 Mass. 697, 713 (2019). “Such evidence may be admitted ‘to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive.’ ” Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780 (2016), quoting Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003). Even if the evidence is relevant, it may be excluded “if its probative value is outweighed by the risk of unfair prejudice to the defendant.” Waterman, supra, quoting Commonwealth v. Bryant, 482 Mass. 731, 734 (2019). “These matters are ‘entrusted to the trial judges broad discretion and are not disturbed absent palpable error.’ ” Waterman, supra at 659-660, quoting Childs, 94 Mass. App. Ct. at 71.
Prior to trial, the prosecutor requested to cross-examine the defendant regarding prior drug use, if he testified. The defendant objected to this line of questioning. Initially, the judge stated that questioning about drug use or alcohol use would be “fair game,” but, after a break in the proceedings, the judge said that he “would be inclined” not to allow the prosecutor to question about past drug use, as it could be “extremely prejudicial.” The defendant did not testify.
In the context of admission of a prior conviction, a “defendant may challenge the judges ruling even if he never testifies.” Commonwealth v. Little, 453 Mass. 766, 773 (2009). See Commonwealth v. Crouse, 447 Mass. 558, 564 (2006). This rule has never been extended to the admission of prior bad acts. Even assuming that the defendant may challenge the judges ruling, we cannot discern from the record what evidence would have been admitted against the defendant. As the prosecutor asked only to question the defendant about prior drug use, and the judge stated that he would permit only evidence about prior alcohol use, it is impossible to ascertain what questions he would have allowed about the defendants prior alcohol use, if any at all, or under what circumstances.
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Furthermore, we are unable to determine on this record how the judges vague ruling affected the defendants choice not to testify. Accordingly, we discern no palpable error.
4. Ineffective assistance of counsel. a. Standard of review. “Ineffective assistance of counsel requires ‘behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,’ which ‘likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.’ ” Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175 (2018), quoting Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 44 (2015). In assessing whether the defendant was prejudiced, “a defendant is entitled to a new trial ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ ” Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439 (2016), quoting Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
b. Motion to suppress. “[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 237 (2011), quoting Commonwealth v. Comita, 441 Mass. 86, 91 (2004). “It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success.” Hanson, supra at 238, quoting Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
The defendant would not have fared well on a motion to suppress the open containers of alcohol found in his vehicle.
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“Local police officers are charged with ‘community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” Commonwealth v. Evans, 436 Mass. 369, 372 (2002), quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973). The community caretaking function applies “to a range of police activities involving motor vehicles, ․ in which there are objective facts indicating that a person may be [in] need of medical assistance or some other circumstance exists apart from the investigation of criminal activity that supports police intervention to protect an individual or the public.” Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 51 (2014). “An officer may take steps that are reasonable and consistent with the purpose of his inquiry, ․ even if those steps include actions that might otherwise be constitutionally intrusive.” Commonwealth v. Knowles, 451 Mass. 91, 95 (2008).
Here, the officers were justified in opening the drivers side door of the vehicle to see if the defendant required assistance. It was approximately 11 p.m., and the defendant was parked, with the car running and the lights on, in an industrial park, half in a parking lot and half in the street. The officers noticed that the defendant was sleeping in the drivers seat, and one officer banged on the window. The defendant stirred, but then went back to closing his eyes, and one of the officers walked over to the cruiser to get his gloves because he thought there was “possibly a medical issue.” The remaining officer banged on the window again, and opened the defendants door once he failed to respond. The officer yelled at the defendant, “[A]re you okay?” After the officer opened the door, the other officer walked over to the passengers side of the vehicle and saw several containers of alcohol in plain view on the passengers seat.
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The Supreme Judicial Court has recognized that, pursuant to the community caretaking function, a trooper was justified in opening the unlocked door of a vehicle parked in a breakdown lane to determine whether the occupant required assistance, after he knocked several times on the window with no response. See Evans, 436 Mass. at 372-373; Commonwealth v. Leonard, 422 Mass. 504, 508-509 (1996), cert. denied, 519 U.S. 877 (1996) (“Once the trooper was justified in making his entry into the car, anything he acquired within the scope of his inquiry is properly admissible in a court of law”). Similarly, here, where officers knocked twice on the window of the vehicle and the defendant did not effectively respond, opening the door of the drivers side of the vehicle was reasonable and consistent with the community caretaking function. The containers of alcohol, observed in plain view by the second officer on the passengers seat of the vehicle, after the first officer opened the drivers side door, were admissible as well. See Commonwealth v. Balicki, 436 Mass. 1, 8 (2002), quoting Commonwealth v. DAmour, 428 Mass. 725, 730-731 (1999) (“Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant”).
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As there is no basis for us to conclude that the motion to suppress would have been successful, counsel was not ineffective for any failure to move to suppress the photographs of the containers of alcohol.
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Judgment affirmed.
FOOTNOTES
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. The defendant waived his right to a jury trial on the second offense portion of the complaint, and the judge found him guilty as a second offender.
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. Photographs of the containers of alcohol were admitted in evidence.
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. When asked whether he had any physical abilities that would prevent him from performing the field sobriety tests, the defendant replied that he did not, but that he was tired from work and that he was partially blind in his right eye.
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. As the evidence of the defendants guilt was strong, we are not persuaded by his argument that the judge erred in declining to order a new trial because of leading questions asked by the prosecutor. See Commonwealth v. Ridge, 455 Mass. 307, 326 (2009), quoting Commonwealth v. Flynn, 362 Mass. 455, 467 (1972) (“The ‘decision whether to allow leading questions [is] left for the most part to the wisdom and discretion of the trial judge’ ”). The pivotal evidence was elicited through proper, open-ended questions.
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. In closing, the prosecutor argued, “And the Defendant even stuck his hands on the ignition, turned it off and dropped the keys on the floor as if to say ha ha, Im going to shut the vehicle off, you cant find me guilty of or you cant arrest me for OUI.” As the defendant was being arrested, he yelled that the officers “were ruining his life,” and that he “was parked.”
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. Given that there is no substantial risk of a miscarriage of justice, counsel was not ineffective in failing to object to this statement in the prosecutors closing. See Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 147 (2008), quoting Commonwealth v. Curtis, 417 Mass. 619, 625 n.4 (1994) (“[I]f an omission of counsel does not present a substantial risk of a miscarriage of justice ․, there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution”).
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. The defendant made no attempt at trial to obtain clarification concerning what evidence would be admitted if the defendant testified.
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. It bears noting that a motion to suppress was filed, requesting suppression of “any identification evidence, any evidence seized ․ or any items seized as a result of the warrantless arrest and or seizure of the Defendant, and the warrantless search and seizure of items,” which indicated the wrong date and the wrong location of the charged offense. That motion was denied, which is evidence that a motion to suppress the containers of alcohol would likely have been unsuccessful. Given that the defendant did not provide us with a transcript of the hearing, the arguments made by counsel, or the judges decision on the motion, we are unable to determine the grounds of the denial on the record before us. See Commonwealth v. Alphonese, 87 Mass. App. Ct. 336, 339 n.5 (2015) (“The appellant has the burden to produce the record on appeal”).
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. To the extent that the defendant challenges counsels failure to move to exclude the photographs of the empty containers, he has failed to demonstrate that such a motion would have been successful. An empty alcohol container is relevant evidence in an operating under the influence case. See, e.g., Commonwealth v. Leary, 92 Mass. App. Ct. 332, 340 n.6 (2017); Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 38 (2016).
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. Here, the officers did not seize the containers of alcohol, but they took photographs of them.
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. The defendant raises several additional arguments in his reply brief, including that counsel was ineffective in failing to request the transcript of the phone call to the police and the audio from the suppression hearing. Arguments raised for the first time in a reply brief are waived. See Commonwealth v. Hampton, 64 Mass. App. Ct. 27, 33 n.8 (2005).