MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury found the defendant, Irvin Dominguez-Cruz, guilty of one count of motor vehicle homicide by negligent operation in violation of G. L. c. 90, § 24G (b), and one count of leaving the scene of a collision after causing injury resulting in death in violation of G. L. c. 90, § 24 (2) (a 1/2) (2).
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On appeal, the defendant raises challenges to several remarks made by the prosecutor during the opening statement, questions put to or testimony of three witnesses, and comments the prosecutor made during the closing argument. We affirm.
Background. On June 14, 2018, at approximately 6 a.m., the defendant was driving a twenty-six-foot box truck on Highland Avenue in Fall River. The defendant “took a very hard left turn” without signaling in front of an oncoming motorcycle, causing the motorcycle to strike the rear passenger side and resulting in the death of the motorcyclist. The defendant left the scene. He “sped up Courtney Street toward the apartments,” where the defendant lived. The driver behind the defendants box truck was listening to loud music but still heard the crash.
Meanwhile, an officer responding to the scene of the crash observed a white box truck with the name “Enterprise” in green lettering on it operating in an area approximately two miles from the crash. The officer did not know then that the truck was involved in the crash.
At about 1 p.m. on the day of the crash, the police unsuccessfully searched the apartment complex for the truck. The investigation led police to an apartment unit where they located the defendant. The defendant told police that he drove a box truck for a company called Paige, LLC, but he had already returned the truck to the company. During a videotaped interview at the police department, portions of which were played for the jury, the defendant told police that he had finished his shift in Falmouth around 5:30 a.m. and that he got back to Fall River around 6 a.m. The defendant said that he did not see anything in front of him, but he did see a white SUV behind him. He also told police that he never heard any bang but noted that the truck was loud and vibrated. After dropping milk off for his son at the apartment complex, the defendant took the truck back to the yard on the Avon Stoughton line even though days before the crash the defendant had been having car trouble and the defendants boss would allow employees to take the company trucks home for personal use if they were having car trouble. Surveillance video later obtained by the police showed that the defendant took a circuitous route to get back to Route 24 leading to the yard, thereby avoiding the scene of the crash. The defendant also admitted to taking this circuitous route.
Once at the yard, the defendant examined the truck. He “saw a hit in the truck” and described seeing “a tiny scratch” located above one of the rear tires. He then went to a Cumberland Farms and asked his boss to give him a ride back to Fall River. When they got back to the apartment complex, the defendant saw police in the area and debris in the street. The defendant did not come forward about his involvement at this time.
State Trooper Daniel Nunes testified about the condition of the truck the defendant had been driving when police found it at the yard. He testified that there was “a large gouge and dent directly above the gouge in the rear passenger wheel rim area” of the truck, a “dent in the cargo area just above the rear passenger wheel as well as a dark gray scuff mark in that area,” and “small pieces of plastic lodged in between the rim and the rubber tire.” Photographic exhibits confirmed this testimony.
Discussion. 1. Opening statement. The defendant challenges several remarks by the prosecutor in the opening statement. “Because there was no objection to the prosecutors opening statement, we review the defendants claim[s] only to ascertain whether any error created a substantial risk of a miscarriage of justice.” Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 56 (2009). “ ‘[A] claim of improper [opening statement] by the prosecutor must be judged in light of the entire [statement], the judges instructions to the jury, and the evidence actually introduced at trial.’ ” Commonwealth v. Jones, 439 Mass. 249, 260-261 (2003), quoting Commonwealth v. Thomas, 429 Mass. 146, 158 (1999).
a. Sympathy. The defendant argues that the prosecutors remarks in the opening statement asked the jury to set aside objectivity and be guided by sympathy when he told the jury about the victims wife kissing her husband goodbye after making him a sandwich. We disagree.
“[T]he prosecutor is entitled to tell the jury something of the person whose life ha[s] been lost in order to humanize the proceedings.” Commonwealth v. Santiago, 425 Mass. 491, 495 (1997). “[W]here a prosecutor chooses to provide background information about a victim, he or she must take care not to cross the line from permissibly humanizing the proceedings to making an improper appeal to sympathy.” Commonwealth v. Sun, 490 Mass. 196, 209-210 (2022). Here, the prosecutor was merely humanizing the victim by describing his final morning with his spouse. The prosecutor did not discuss any details about the victims life or his family beyond the victims spouse making him a sandwich and kissing him goodbye that morning.
Even if we were to find error in the prosecutors opening statement, which we do not, there was no substantial risk of a miscarriage of justice. See id. at 209-213, quoting Commonwealth v. Alemany, 488 Mass. 499, 513 (2021) (although opening statement by prosecutor mentioning victims immigration story and involvement in community were “an improper appeal to the passions or sympathies of the jury,” errors did not create substantial risk of miscarriage of justice).
b. Facts not in evidence. The defendant argues that the prosecutor improperly argued two facts not in evidence in the opening statement. We address each in turn.
First, the defendant argues that the prosecutor erred when he told the jury that the victim was dragged eleven feet by the defendants truck. The Commonwealth recognizes that no evidence was introduced at trial regarding the victim being dragged eleven feet. However, “[t]he prosecutor could state in [his] opening statement anything [he] reasonably, and in good faith, expected to prove․ Absent a showing of bad faith or prejudice ․ the fact that certain evidence fails to materialize is not a ground for reversal” (citation omitted). Commonwealth v. Qualls, 440 Mass. 576, 586 (2003). Here, this fact was contained in an expert report prepared by a testifying witness.
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The defendant has failed to show any bad faith or prejudice.
In addition, the judge clearly instructed the jury prior to the prosecutors opening statement that an opening statement is “not evidence” and that “evidence is what youre going to hear during testimony and the like.” In the final charge to the jury, the judge explained again that opening statements are not evidence. Given the judges instructions and the fact that other evidence of the defendants guilt introduced at trial was overwhelming, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 11 (2000) (“[w]e think the cautionary instructions that the judge gave in this case were clear and sufficient”). See Sun, 490 Mass. at 213 (no substantial risk of miscarriage of justice and judges instructions sufficient to mitigate impact of improper statements even when judge failed to remind jury at end of trial that “opening statements are not evidence”).
Second, the defendant argues that the prosecutor erred when he told the jury that the Commonwealths witness “estimates that the truck is going about [thirty-five], [forty], somewhere in that neighborhood.” This statement was supported by trial testimony that the defendant was traveling at a speed of about forty miles per hour or faster.
c. State of mind. The defendant challenges the prosecutors statements that the defendant “kept going” because he “knew” he “did it” and to avoid “apprehension.” Knowledge is an element of the offense of leaving the scene of an accident. Commonwealth v. Platt, 440 Mass. 396, 400 n.5 (2003). While the prosecutor might have been more clear that the evidence would show that the defendant knew there had been a crash, we do not agree that this remark created a substantial risk of a miscarriage of justice.
2. Testimony at trial. The defendant challenges parts of the questioning and testimony of Trooper Palmer, Officer Faris, and Detective Cabeceiras. We discern no errors.
a. Trooper Palmers testimony. The prosecutor asked the trooper whether something attracted his attention on April 9, 2018, approximately two months before the crash. The trial judge sustained defense counsels objection. The jury never heard any testimony that this trooper had stopped the defendant that day. Moreover, the trial judge had instructed the jury prior to trial that they are not to “speculate why theres an objection or what the answer would be. Thats inappropriate to do.” The jury are presumed to follow the judges instructions and to disregard questions to which an objection was sustained. See Commonwealth v. Gomes, 443 Mass. 502, 509 (2005) (jury presumed to follow judges instructions after objection was sustained). We discern no error.
b. Officer Fariss testimony. The defendant argues that Officer Faris, the Commonwealths expert, improperly testified that if a person is “standing at the entrance of Royal Crest on Highland Avenue, you can see unobstructed --” and that during a reconstruction six days after the crash, the officer wanted to determine “if a reasonable person would have been able to see the roadway.” As to the view being unobstructed, the trial judge sustained an objection, presumably because the answer was not responsive to the question that had been asked. The jury never heard what was unobstructed. The witness then testified without objection that “[y]ou can clearly see north and south.” As to the second comment, the trial judge sustained defense counsels objection and struck the answer. The jury are presumed to follow the judges instructions. See id. Moreover, the jury was taken on a view and photographs were introduced of the intersection, so the jury could determine what could or could not be seen from a particular location. We discern no error.
c. Detective Cabeceirass testimony. The defendant argues that Detective Cabeceiras rendered an opinion on the defendants guilt by interpreting the defendants statement that he was “confused.” The defense counsel elicited the testimony that the detective thought the defendant was confused. The prosecution objected and warned that he anticipated the detectives response “[wa]s going to be ․ that the confusion as to consistently seeing a white SUV. Detective Cabeceiras is going to say its the white motorcycle. So I just want to be clear that so if its not elicited from the defense, I intend to ask that question.” Defense counsel responded, “Sure. They can redirect.” On redirect, the prosecution elicited the testimony as forecast. Specifically, the detective concluded that the defendant was confused because the defendant had told the police that he “observed a white SUV type vehicle in his mirrors,” but the police knew from their investigation that the SUV directly behind the defendants truck was black. We discern no error. See Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991) (“Having opened the door to this information, the defendant essentially invited the Commonwealth to address the issue on redirect examination”).
3. Closing argument. The defendant challenges several remarks in the prosecutors closing argument. “Closing arguments must be viewed ‘in the context of the entire argument, and in light of the judges 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). The defendant did not object to the prosecutors closing argument, so we review to determine “whether there was an error which created a substantial risk of a miscarriage of justice.” Commonwealth v. Sanchez, 405 Mass. 369, 375 (1989).
a. Emotion. The defendant argues that the prosecutor asked the jury to be guided by emotion when he told them about the motorcycle disintegrating and the damage to the truck caused by the victims helmet. There was no error because the prosecutor was stating facts introduced through evidence and one of the issues at trial was whether the defendant heard the crash. The jury saw photographs of the motorcycle after the crash, with various parts broken off the body of the motorcycle. See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/disintegrate (“disintegrate” means “to break or decompose into constituent elements, parts, or small particles” or “to destroy the unity or integrity of”). The jury also saw photographs of the damage to the truck and photographs of the helmet. Closing arguments may include “enthusiastic rhetoric, strong advocacy, and excusable hyperbole,” Commonwealth v. Costa, 414 Mass. 618, 629 (1993), and these remarks were within the bounds of fair argument.
b. Personal comments. The defendant argues that the prosecutor impermissibly made personal comments when he told the jury, “[’]Am I right? Yeah, youre right․ [’] Theres no confusion there, ladies and gentlemen. Theres no tricks. Theres no deception.” The defendant takes these remarks out of context. The prosecutor was quoting a police officer from the defendants interview with police and rebutting statements in defense counsels closing argument. There was no error.
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c. Impermissible vouching. The defendant contends the prosecutor engaged in impermissible vouching when he stated that not only were there no “tricks” or “deceptions” on the Commonwealths part, but that “this defendant understood exactly what questions were being asked of him,” and when the prosecutor highlighted the polices opinion of the defendants guilt. “Improper vouching occurs when ‘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’ ” (citation omitted). Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 189 (2009). Further, the jury watched the defendants interview for themselves and was able to draw their own conclusions. See Commonwealth v. Cannon, 449 Mass. 462, 469 n.17 (2007) (“It is for the jury to make a determination of credibility”).
Our review of the prosecutors closing argument convinces us that the statements challenged by the defendant here stayed within permissible bounds of vigorous argument. See Commonwealth v. Bizanowicz, 459 Mass. 400, 421 (2011). Arguing forcefully from the evidence is appropriate. See Commonwealth v. Roy, 464 Mass. 818, 833 (2013), citing Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). They did not rise to the level of vouching. Even if the prosecutor engaged in improper vouching, again, there is no substantial risk of a miscarriage of justice. See Commonwealth v. Kent K., 427 Mass. 754, 761 (1998).
d. Misstating the law. General Laws c. 90, § 24 (2) (a 1/2) (2), requires that “a defendant must have left the scene after knowingly colliding with a person ‘or otherwise’ after knowingly causing injury to a person, if the injuries result in death in order to fall under the purview of the statute.” Commonwealth v. Daley, 463 Mass. 620, 624 (2012), quoting G. L. c. 90, § 24 (2) (a 1/2) (2). The defendant claims that the prosecutor misstated the law by urging that the defendant could be convicted based on knowledge of the crash that the defendant developed later (such as when he saw damage to the truck or when he and his boss drove by the crash scene). In context, the prosecutors statements about later acquired knowledge were to show the lengths the defendant went to avoid apprehension. The prosecutors argument that the defendant was in a rush and that the victims helmet hit the side of the truck were supported by the evidence and stayed within the bounds of permissible argument. See Roy, 464 Mass. at 833, citing Kozec, 399 Mass. at 516. There was eyewitness testimony that the truck “sped up Courtney Street toward the apartments” and the jury was shown photographs of the helmet and the truck. “[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. Fernandes, 478 Mass. 725, 741 (2018), quoting Kozec, 399 Mass. at 516. We conclude there was no error let alone one creating a substantial risk of a miscarriage of justice.
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Judgments affirmed.
FOOTNOTES
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. After the close of the Commonwealths case, the trial judge entered a required finding of not guilty as to one count of unlicensed operation of a motor vehicle in violation of G. L. c. 90, § 10.
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. The report is not a part of the record in this case.
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. For the same reason, because the prosecutor was quoting the evidence, we do not agree that this implied some special knowledge of the prosecutor.
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. In light of our discussion, the defendants argument that the cumulative effect of the alleged errors deprived the defendant of a verdict based upon the evidence at trial also fails.