MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was found guilty of operating a motor vehicle under the influence of alcohol (OUI). After a separate bench trial, he was found guilty of the subsequent (third) offense portion of the OUI charge.
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On appeal, he argues that the investigating officer gave improper expert testimony, and that the prosecutors closing argument relied on facts not in evidence. We affirm.
Discussion. 1. Expert testimony. The defendant argues that the investigating officer, who administered the defendants field sobriety test, improperly gave expert testimony by stating that he considered the effects of the defendants leg pins in forming his opinion that the defendant was intoxicated. As counsel failed to object, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160 (2010). That question turns on whether we have “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
We need not decide whether the officer gave improper testimony, because we conclude, in any event, that the testimony did not create a substantial risk of a miscarriage of justice. When the prosecutor first asked the officer whether he “[took] into account the fact that [the defendant] had pins in his legs,” the officer testified, “No, sir.” However, two questions later, when the prosecutor asked the officer whether he “considered the fact that [the defendant] had pins in his legs and [ ] still formed the opinion that he was intoxicated,” the officer answered, “Yes, sir.” Because these apparently contradictory statements were made in close proximity to each other, the jury likely would not have known whether to accept the officers statement that he took the presence of the pins into consideration. The officer also did not specify the manner in which he took the pins into account, nor did he indicate that the defendants performance on the test was in any way significant to his determination that the defendant was intoxicated. Because the defendant said that he could still perform the test despite the pins, it was also a fair inference that the defendant himself believed that the pins would not affect his performance on the test.
Furthermore, the Commonwealth introduced ample evidence of the defendants intoxication, including the officers testimony regarding the defendants erratic driving, his confusion as to why the officer pulled him over, his glassy eyes and slurred speech, the smell of alcohol, his eventual admission to the officer that he had a drink upon being asked a second time, and his behavior at the police station. Therefore, we are not left with “a serious doubt whether the result of the trial might have been different” had this testimony been excluded; the admission of the officers testimony did not create a substantial risk of a miscarriage of justice. LeFave, 430 Mass. at 174.
2. Closing arguments. The defendant contends that the prosecutor improperly argued during his closing argument that the defendant (1) had “said he wanted to perform” the field sobriety test, and (2) “d[id]nt realize that he’[d] just been driving [sixty] to [sixty-five] miles per hour in the middle of the road.” The defendant asserts that these arguments misstated the evidence. As the defendant did not object at trial, we review his claims to determine whether any errors created a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). “Although not dispositive, ․ the fact that the defendant did not object to the statements at trial [i]s some indication that the tone [and] manner ․ of the now challenged aspects of the prosecutors argument were not unfairly prejudicial” (quotation and citation omitted). Commonwealth v. Lyons, 426 Mass. 466, 471 (1998).
A closing argument should not misstate the evidence or refer to facts not in evidence. Kozec, 399 Mass. at 516. A closing argument may be based on the evidence and fair inferences drawn from the evidence. See Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978). The inferences that are drawn from the evidence “need not be necessary or inescapable,” “only ․ reasonable and possible.” Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993).
Here, the prosecutors argument that the defendant “wanted” to take the field sobriety test was a fair inference from the evidence. The officer testified that, before asking the defendant to perform a field sobriety test, he asked the defendant if he was physically able to do the test and if there was anything that would impede him from walking in a straight line or holding his leg up for thirty seconds. The officer testified that the defendant replied that he had a “rod in his left leg” and had undergone multiple leg surgeries, but that he “had no other problems” and agreed to take the test. Therefore, it was a fair inference that the defendant, after weighing his options, wanted to take the test as opposed to not taking it. The defendant also used these facts to his advantage in his own closing, by arguing that he did not have to agree to the test but voluntarily agreed to take it anyway. Accordingly, this argument was not improper.
Second, the prosecutors argument that the defendant “d[id]nt realize that he’[d] just been driving [sixty] to [sixty-five] miles per hour in the middle of the road” was also a fair inference from the evidence. The officer testified that the defendant was driving at a speed more than twice the posted limit and then, once pulled over, was angry and demanded an explanation. This reaction permitted a reasonable inference that he did not know he was speeding. Moreover, the prosecutor himself began his closing by stating, and the judge instructed the jury, that closing arguments were not evidence and that the jurys memory of the evidence was controlling. We see no error in the prosecutors closing argument and thus no risk of a miscarriage of justice.
Judgments affirmed.
FOOTNOTES
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. The defendant also admitted to sufficient facts and was found guilty of negligent operation. An admission to sufficient facts, like a guilty plea, waives all earlier nonjurisdictional defects in the proceedings, see Commonwealth v. Berrios, 84 Mass. App. Ct. 521, 524-526 (2013), and the defendant makes no arguments regarding this conviction. Therefore, we do not address it further.