Commonwealth v. Dean S. Sasen

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

24-P-71

COMMONWEALTH

vs.

DEAN S. SASEN

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Dean Sasen, appeals from his 2023 conviction

for operating a motor vehicle under the influence of

intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1). Sasen

raises two issues on appeal. The first is that the prosecutor

committed error in her closing argument by misstating the law,

referring to her personal beliefs, and arguing an unreasonable

inference from the evidence. The second is that Sasen was

denied effective assistance of counsel. We are not persuaded by

either argument and accordingly, affirm.

Background. On October 10, 2020, Trooper David Marra of

the Massachusetts State police received a dispatch that a

rollover crash had occurred on the on-ramp to Interstate 291.
Trooper Marra arrived to find a van on its left side, and Sasen

standing outside the van, interacting with firefighters at the

scene. Trooper Marra testified that Sasen's eyes were bloodshot

and glassy, his speech was heavily slurred, and there was a

strong odor of alcohol emanating from him.

Trooper Marra asked Sasen if he was injured, and Sasen said

he was not. The Springfield fire department was at the scene

and had evaluated Sasen; Sasen also told the Fire department

that he was not injured, and signed a patient refusal form

denying treatment. At some point, Sasen told Trooper Marra that

he was going too fast and that he couldn’t take the turn.

Trooper Marra then administered two roadside assessments --

the nine step walk and turn test, and the one leg stand test.

Marra concluded that the defendant failed both tests, and

arrested him for operating under the influence.

Marra then transported Sasen to the Springfield police

barracks and booked him. Marra testified that the defendant was

advised of his right to seek medical attention and he did not

request any at that time. The booking process concluded around

2 A.M., and the defendant was released from custody.

At 4:51 A.M., the defendant went to the hospital, where he

was admitted to the emergency department for evaluation and

discharged several hours later. At the hospital, the defendant

reported that his van went off the road and rolled over, and

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that he lost consciousness and hit the right side of his head.

The defendant further reported that he was able to move and that

he worked with bystanders to remove his car from the side of the

road. He complained of pain on the right side of his head,

blurry vision in his right eye, and neck pain but denied nausea,

vomiting, lightheadedness, or dizziness. A CT scan of Sasen's

head and neck did not show any signs of bleeding or fractures of

bones in his neck, and his medical records reflected a "low

suspicion for any traumatic injuries from the motor vehicle

collision." The report stated that Sasen had no limitations on

mobility, full consciousness, and was orientated to person,

place, and time. However, Sasen's right eye visual acuity was

20/100, as his right eye was not focusing.

Sasen was charged with operating under the influence and a

civil motor vehicle infraction. The case was tried to a jury on

March 3, 2023. During closing argument, the prosecutor stated

the following regarding Sasen's field sobriety tests: "That's

nine out of [fourteen] clues that indicated that the defendant

was drunk. You don't have to -- you can drink and drive, you

just can't be intoxicated enough to where you can't operate your

vehicle safely." Later in the argument the prosecutor stated,

regarding the defendant going to the hospital:

"The booking video ends at 2 A.M. The defendant goes to
the hospital at 4:51 A.M. I believe he went to the
hospital because of consciousness of guilt. He needed a

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story. He needed to tell them he had hit his head, his
right side of the head, and that he was having problems
with his eye vision. But they stated he was able to full
mobility [sic], consciousness of awareness, person, place
and time."

The defendant did not object to either of the above statements.

At a bench conference following the jury instructions, the

defendant stated to the trial judge, "Your Honor, [my attorney]

doesn't want me to go up and speak but the way this whole thing

hangs right now if I was that jury, I would feel like guilty."

The judge stated, "Sir, sir, sir, hold on." Sasen replied, "I'd

like to speak." The judge replied, "No. Hold on." Sasen

stated, "Okay, I just -- I don't feel I'm represented right."

The judge replied again, "Hold on."

The judge then excused the jury and asked defense counsel

to explain Sasen's objection. Defense counsel explained that

Sasen had "expressed to me a desire to testify. I've explained

to him that evidence is closed. We've given our closing

remarks, instructions have started and we're past that point."

Sasen again asked to speak, but the judge informed him that the

judge could not speak with Sasen without his lawyer's consent.

Sasen conferred with his attorney and once back on the record,

defense counsel stated, "Judge, I believe we're ready to

proceed."

The jury found Sasen guilty of operating under the

influence, and Sasen appealed.

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Discussion. 1. Remarks by the prosecutor in closing

argument. Sasen first argues that in two instances, the

prosecutor made improper statements in her closing argument. A

closing argument can be improper for several reasons, including

the argument of facts not in evidence, see Commonwealth v.

Jenkins, 458 Mass. 791, 798-799 (2011); the introduction of the

prosecutor's personal beliefs, see Commonwealth v. Sylvia, 456

Mass. 182, 194 (2010); or misstatement of the law, see

Commonwealth v. Thomas, 401 Mass. 109, 113 (1987). The court

will consider several factors when determining whether an

improper closing argument requires vacating the judgment of

conviction, including whether the defendant seasonably objected,

whether the prosecutor's error was limited to collateral issues

or went to the heart of the case, whether the judge gave

instructions that may have mitigated the prosecutor's mistake,

and whether the prosecutor's error potentially made a difference

in the jury's conclusions. Commonwealth v. Kozec, 399 Mass.

514, 518 (1987). Because Sasen did not object at trial to

either of the statements he challenges, we review to determine

if the alleged improprieties created a substantial risk of a

miscarriage of justice. See Commonwealth v. Carroll, 439 Mass.

547, 554 (2003).

The defendant first challenges the prosecutor's statement

that "the defendant was drunk." Sasen argues that this was a

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misstatement of the law on operating under the influence, as the

standard for operating under the influence does not turn on

whether the defendant was "drunk." It is true that a person

does not need to be drunk to be under the influence of liquor

for purposes of G. L. c. 90, § 24 (1) (a) (1). Commonwealth v.

Connolly, 394 Mass. 169, 172 (1985). However, the prosecutor's

reference to Sasen as being "drunk" did not introduce any error.

For one thing, the prosecutor immediately corrected herself when

she stated, "you can drink and drive, you just can't be

intoxicated enough to where you can't operate your vehicle

safely." "Remarks made during closing argument are considered

in the context of the entire argument, and in light of the

judge's instructions to the jury and the evidence at trial."

Commonwealth v. Staines, 441 Mass. 521, 536 (2004), quoting

Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).

Moreover, it simply was not error, and in any event not

prejudicial, for the prosecutor to use the vernacular "drunk"

during argument to describe the defendant's state. The actual

standard for impairment is, if anything, more easily met than

proving "drunkenness." See Connolly, 394 Mass. at 172 (person

does not need to be drunk to be driving while under influence of

liquor). Furthermore, the trial judge told the jury that she

would instruct them on the law and that it was the jury's duty

to accept the law as she stated it; that the attorneys' closing

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arguments were not a substitute for the evidence; and that

someone does not have to be drunk to be under the influence of

alcohol. See Commonwealth v. Robidoux, 450 Mass. 144, 162

(2007). The prosecutor's statement that Sasen was "drunk" was

not improper, and in any event did not create a substantial risk

of a miscarriage of justice.

The defendant also complains of the prosecutor's statement

that "I believe [Sasen] went to the hospital because of

consciousness of guilt." He argues that (1) the prosecutor's

statement was an unreasonable inference from the evidence, and

(2) the words "I believe" were an improper personal opinion.

Again, there was no error.

First, the prosecutor's argument that Sasen went to the

hospital because of consciousness of guilt was not improper.

Closing arguments may not misstate the evidence, but prosecutors

are free to marshal the evidence, and to argue as well the

reasonable inferences that can be drawn therefrom. See

Commonwealth v. Pearce, 427 Mass. 642, 646 (1998), quoting

Commonwealth v. Kelly, 417 Mass. 266, 270 (1994) (argument must

be limited "to the evidence and fair inferences that can be

drawn from the evidence."). Here, we are satisfied that the

argument that Sasen's trip to the hospital showed consciousness

of guilt was a reasonable inference from the evidence. As

described above, the evidence showed that Sasen stated multiple

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times that he was not injured, over a period of hours. He made

that statement to the firefighters, and to Officer Marra, and he

did not claim a need for medical attention at booking. The

defendant even signed and gave to the paramedics on scene a form

refusing all treatment, yet he thereafter went to the hospital

on his own volition, within three hours after being released

from custody. The inference that Sasen had an ulterior motive

for going to the hospital was not unreasonable, and the

prosecutor was not precluded from so arguing. Furthermore, "a

jury instruction on consciousness of guilt is not a precondition

to a prosecutor arguing evidence suggesting a defendant's

consciousness of guilt." Commonwealth v. Franklin, 465 Mass.

895, 915-916 (2013).

Nor was there error in the prosecutor's isolated use of the

first person -- "I believe" -- in her closing argument.

Attorneys may not introduce their personal observations or

beliefs in closing argument or suggest that they have

independent knowledge of relevant facts. Sylvia, 456 Mass. at

194. It is a "worthwhile suggestion[]" to counsel not to "state

any personal opinion" and not to use statements such as "'I

think,' 'I feel,' 'I believe.'" Commonwealth v. Finstein, 426

Mass. 200, 205 n.1 (1997). However, "[i]solated slips by the

prosecutor where [s]he interjects a personal pronoun do not

constitute serious error." Commonwealth v. Santiago, 425 Mass.

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491, 499 (1997). Although use of a personal pronoun should be

avoided, here the prosecutor's statement that "I believe [Sasen]

went to the hospital because of consciousness of guilt" was not

improper, as the prosecutor was not "informing [the jury] of

information [she] knew." Jenkins, 458 Mass. at 797.

Furthermore, the statement did not create a substantial risk of

a miscarriage of justice when the issue of consciousness of

guilt was a collateral issue to the case, and the judge

instructed the jury that the arguments of counsel are not

evidence.

2. Ineffective assistance of counsel. Sasen also argues

that he was deprived of effective assistance of counsel because,

he claims, his attorney advised him not to testify in his

defense and he followed that advice. However, Sasen attempts to

present this ineffective assistance claim on direct appeal,

rather than through a motion for a new trial. "[T]he preferred

method for raising a claim of ineffective assistance of counsel

is through a motion for a new trial." Commonwealth v. Zinser,

446 Mass. 807, 810 (2006). There is a narrow exception to that

rule if the factual basis of the claim "appears indisputably on

the trial record." Id. at 811, quoting Commonwealth v.

Adamides, 37 Mass. App. Ct. 339, 344 (1994). Here, however, the

factual basis for Sasen's claim is not apparent on the record;

rather, it derives from advice allegedly given to him off the

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record, and there is not even a supporting affidavit from Sasen,

let alone trial counsel. This argument also presents no error.

Judgment affirmed.

By the Court (Vuono,
Englander & Hodgens, JJ.1),

Clerk

Entered: December 12, 2024.

1 The panelists are listed in order of seniority.

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