Commonwealth v. Ryan Vibber.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-97

COMMONWEALTH

vs.

RYAN VIBBER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of operating

a motor vehicle while under the influence of intoxicating liquor

and negligent operation of a motor vehicle. On appeal, the

defendant claims that the admission of certain testimony and a

comment in the Commonwealth's closing argument require a new

trial. We affirm.

Background. We summarize the relevant facts as the jury

could have found them, leaving some for further discussion.

After seeing a vehicle roll through a stop sign at 12:30 A.M.,

police Officer Kevin Realini1 watched the vehicle then cross over

1Realini was promoted to sergeant after the incident in
this case.
the white fog line -- so far that both passenger's side tires

hit the grassy area on the side of the road -- before

overcorrecting to the left and crossing over the double yellow

lines. Realini did not see anything in the road that would have

caused the vehicle to swerve like that. He stopped the vehicle

and spoke to the driver, the defendant, who said that he was

coming from a party where he drank alcohol.

Realini noticed that the defendant's eyes were bloodshot

and watery, and that he had "a slight slur to his speech [that]

sounded like he had a heavy tongue." A "strong odor of an

alcoholic beverage coming from inside the vehicle" followed the

defendant as he exited. Papers that were in the defendant's lap

also fell to the ground as he exited the vehicle, but the

defendant did not react until the second time Realini pointed

them out.

Realini administered field sobriety tests to the defendant,

which Realini defined as "basically divided attention tests.

They are made to have an individual do something physical while

remembering instructions at the same time." First, Realini

administered "a simple directions test," wherein the defendant

was told to follow a pen only with his eyes and not move his

head. The defendant "wasn't able to complete the test as

administered" because he kept moving his head to track the pen.

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Next the defendant tried the "walk and turn test," wherein he

took too many steps, raised his arms for balance and kept them

up for the duration of the test, and spun around quickly despite

being instructed not to. Finally, the defendant did "the one

leg stand test," which he was able to complete by holding his

arm out for balance (after being instructed to keep both arms

down). And contrary to the instructions before each test to

wait for Realini's direction to begin, the defendant started

both of the last two tests early. Realini formed the opinion

that the defendant was intoxicated, arrested him, and brought

him to the station three to four minutes away for booking.

Portions of the audio-visual recording of the defendant's

booking were admitted in evidence and played for the jury, and

we have reviewed the footage. In slurred speech, the defendant

repeatedly stated that he had just left the home of a State

police trooper whom the defendant was "not saying [was] gonna

save me," but who "need[s] . . . to help me out."

Discussion. Realini described the horizontal gaze

nystagmus (HGN) test as a "simple directions test" pursuant to

the judge's ruling on the defendant's motion in limine stating

that the opinion testimony relative to the test was

inadmissible, but the Commonwealth could elicit testimony about

"whether or not the defendant could follow simple instructions

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such as keeping his head still and following the moving finger

only with his eyes." See Commonwealth v. Sands, 424 Mass. 184,

188 (1997) (HGN test result evidence requires expert testimony

due to test's scientific nature). At trial, and on appeal, the

defendant objects to the simple directions exercise being called

a "test," arguing that doing so falsely lends it "an aura of

scientific validity." Commonwealth v. Gerhardt, 477 Mass. 775,

776 (2017).

The judge was not wrong to overrule the defendant's

objection and admit the evidence. See Commonwealth v. Brown, 83

Mass. App. Ct. 772, 774 n.1 (2013) ("The testimony of a police

officer about the results of ordinary field sobriety tests like

those involved in this case . . . is lay witness testimony, not

expert witness testimony"). A lay juror, who "understands that

intoxication leads to diminished balance, coordination, and

mental acuity from common experience and knowledge," Sands, 424

Mass. at 188, would also understand that Realini's "simple

directions test" was not "testing" the defendant's "mental

ability to understand and follow directions and to perform

divided-attention tasks . . . in the same way that a chemist in

a laboratory tests a sample for the presence of a particular

substance." Gerhardt, 477 Mass. at 784-785. This is especially

true considering Realini's descriptions of the test and of field

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sobriety tests in general. There was no prejudice from

admitting the evidence in any event where the testimony was that

the test could not be administered; as such, there was nothing

from which any aura of scientific validity could have emanated

(false or otherwise).

In its closing, the Commonwealth urged the jury to find

that the defendant was under the influence of alcohol based on

five categories of evidence, one of which included the

defendant's statements "[r]epeatedly emphasiz[ing] repeatedly,

I'm coming from a state trooper's house." The prosecutor

argued:

"Why is that relevant? I think you can use your common
sense why he might think that's relevant. But why is that
relevant that he's coming from a state trooper's house? A
state trooper who notably we didn't meet. Wasn't here.

"At one point just to give a little insight about why he's
bringing up that state trooper when he says, quote, 'I'm
not saying he's going to save me. But I need to talk to
him.' Save him (inaudible)."

The defendant objected to the comment about not meeting the

trooper and asked for a curative instruction that was not a

missing witness instruction. The judge agreed to address the

issue with the jury, except that the parties could not agree on

language. Ultimately the judge said, "Why don't I just leave it

the way it is. . . . It's just going to draw more attention to

it." The defendant responded, "Okay."

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Based on this exchange, the Commonwealth maintains that we

should review the defendant's claim that the prosecutor's

comment was impermissible burden shifting for a substantial risk

of a miscarriage of justice. The defendant asks us to review

the error for prejudice. Preliminarily, the argument had a

solid basis in the video footage and was a fair comment on the

defendant's state of mind. "We have never criticized a

prosecutor for arguing 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).

To the extent that the prosecutor's comment could have been

interpreted as one suggesting the defendant had some burden to

call witnesses, however, the "slip was corrected and does not

provide a basis for reversal." Commonwealth v. Gomes, 443 Mass.

502, 510 (2005). The jury understood that closing "argument"

was just that because the judge's instructions at the beginning

and end of trial "inform[ed] the jury that closing argument is

not evidence." Kozec, 399 Mass. at 517. Such instructions may

mitigate prejudice, id., and we are confident they did so here,

particularly where the judge also repeatedly gave "clear,

specific, and thorough" instructions on the presumption of

innocence and the Commonwealth's unshifting burden of proof.

Gomes, supra. He also told the jury not to "speculate about

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things about which there is no evidence." "We presume, as we

must, that the jury follow[ed] the judge's instructions and

underst[ood] the argumentative, not factual, nature of closing

arguments." Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237

(2013). See Kozec, supra ("A certain measure of jury

sophistication in sorting out excessive claims on both sides

fairly may be assumed").

Viewed in the context of the prosecutor's entire argument,

the judge's instructions, and the strong (if not overwhelming)

evidence of the defendant's impairment, see Gerhardt, 477 Mass.

at 780 (describing "eight specific indicators of impairment"

officers look for in walk and turn test and four indicators in

one leg stand); Commonwealth v. Gallagher, 91 Mass. App. Ct.

385, 392-393 (2017) ("classic symptoms of alcohol intoxication"

include bloodshot and glassy eyes, odor of alcohol, and slurred

speech), the passing reference to the State police trooper's

absence did not possibly make a difference in the jury's

conclusions. See Commonwealth v. Rodriguez, 437 Mass. 554, 565

(2002); Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).

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There was no prejudice and no substantial risk of a miscarriage

of justice.

Judgments affirmed.

By the Court (Desmond,
Brennan & Smyth, JJ.2),

Clerk

Entered: October 7, 2024.

2 The panelists are listed in order of seniority.

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