MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury found the defendant guilty of operating a motor vehicle while under the influence of liquor in violation of G. L. c. 90, § 24 (1) (a) (1). On appeal, he challenges an aspect of the prosecutors cross-examination and maintains that the prosecutor engaged in impermissible vouching during the opening statement and closing argument. We affirm.
Facts. Around 12:30 a.m. on February 3, 2018, a Watertown police officer was called to the scene of a single motor vehicle accident and found that a large sport utility vehicle had driven into the front yard of a building on Main Street and hit a concrete retaining wall. The defendant, the driver, told the officer that he believed he had dozed off while driving from a CVS store in Watertown Square, where he had attempted to buy cigarettes, to his home in Belmont.
The officer observed that the defendants speech was slurred, his eyes were watery and glassy, and he had an odor of alcohol on his breath. When asked by the officer, the defendant denied having anything to drink that night. The defendant failed a field sobriety test and was arrested, then brought to Mount Auburn Hospital where he was booked by another officer, who also noted the defendants slurred speech, glassy eyes, and odor of alcohol.
At trial, the prosecutors cross-examination of the defendant included a line of questioning about the defendants knowledge of a twenty-four hour BP gasoline station (BP station), less than one mile from the defendants home, that sold cigarettes.
Discussion. 1. Cross-examination. “There must be a reasonable and good-faith basis for questions asked on cross-examination.” Mass. G. Evid. § 611(b)(1) (2022). To satisfy this requirement, the Commonwealth “should have a reason for asking any such questions and should be prepared to disclose that reason to the judge.” Commonwealth v. White, 367 Mass. 280, 284 (1975). Because the defendant did not object to the cross-examination at trial, 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. AdonSoto, 475 Mass. 497, 504 (2016). We find no error.
The prosecutor showed the defendant a map of a BP station on Trapelo Road less than one mile from the defendants home. The defendant testified that he had lived in Belmont for several years and had traveled on Trapelo Road “plenty of times”; he was smoking a pack of cigarettes a day at the time of the accident and, he said, it was a quest for cigarettes that sent him to CVS just before the accident. This provided a sufficient factual basis for questioning about the defendants awareness of the BP station. See White, 367 Mass. at 285; Commonwealth v. Carroll, 360 Mass. 580, 589 (1971) (“reasonable cross-examination for the purpose of showing falsity of other testimony of the witness as to the main issues of the trial ․ is a matter of right”).
There was no error in the prosecutors continued pursuit of this topic after the defendants denial when the questions had a reasonable basis in fact and there was no objection. See Commonwealth v. Johnson, 441 Mass. 1, 6 (2004) (“where there were no further objections and the prosecutor was not called on to disclose his basis for the questions, the questioning was not improper”).
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2. Opening and closing. “Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). “The jury are presumed to understand that a prosecutor is an advocate, and statements that are ‘[e]nthusiastic rhetoric, strong advocacy, and excusable hyperbole’ will not require reversal.” Commonwealth v. Martinez, 476 Mass. 186, 199 (2017), quoting Wilson, supra at 351. “We consider the prosecutors remarks ․ ‘in the context of the whole ․ closing, as well as the entire case.’ ” Commonwealth v. Grier, 490 Mass. 455, 469 (2022), quoting Commonwealth v. Alemany, 488 Mass. 499, 511 (2021).
In both the opening statement and closing argument, the prosecutor said, “actions have consequences.” Far from touching on the credibility of any witness, this statement instead was a “mere platitude,” “far too trivial to imply that the prosecutor had special knowledge” about either this case or this type of case. Wilson, 427 Mass. at 352. “It is not improper ․ for a prosecutor to argue that a defendant should be held accountable for his actions.” Commonwealth v. Molle, 56 Mass. App. Ct. 621, 631 (2002). Particularly where the defense did not object, the trial judge instructed the jury that “[t]he opening statements and closing arguments are not a substitute for the evidence” and “you alone will determine whether to believe any witness,” and the trial judge enjoined the jurors to “confine your deliberations to the evidence and nothing but the evidence,” we discern no error.
Judgment affirmed.
FOOTNOTES
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. Because we conclude there was no error in the admission of this testimony, we need not address the defendants argument that it unfairly affected the jurys weighing of evidence, assessment of witness credibility, and drawing of inferences -- all of which are, in any event, matters unquestionably within the province of the jury. See Commonwealth v. Watkins, 473 Mass. 222, 229-230 (2015); Commonwealth v. Akara, 465 Mass. 245, 255-256 (2013).