Commonwealth v. Carol A. Carchia.

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

22-P-1137

COMMONWEALTH

vs.

CAROL A. CARCHIA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of

operating a motor vehicle while under the influence of

intoxicating liquor (OUI). On appeal, the defendant claims that

the admission of certain evidence violated her constitutional

privilege against self-incrimination and that the prosecutor's

closing argument created a substantial risk of a miscarriage of

justice. We affirm.

Discussion. The defendant claims that evidence of her

nonresponsive answers to the arresting officer's questions

amounted to impermissible evidence of her refusal to submit to

field sobriety tests. As a result, the admission of this

"sanitized" refusal evidence violated her privilege against

self-incrimination under art. 12 of the Massachusetts

Declaration of Rights. We disagree.
The privilege against self-incrimination of art. 12

prohibits the admission of evidence that a defendant refused to

submit to a field sobriety test. See Commonwealth v. McGrail,

419 Mass. 774, 780 (1995). "[A]llowing such refusal evidence to

be admissible at trial would compel defendants to choose between

two equally unattractive alternatives: 'take the test and

perhaps produce potentially incriminating real evidence; refuse

and have adverse testimonial evidence used against him at

trial.'" Id., quoting Opinion of the Justices, 412 Mass. 1201,

1211 (1992).

Here, however, the judge excluded any reference to field

sobriety tests, as well as the fact that the officers repeatedly

asked the defendant if she was going to comply with the testing

without receiving a responsive answer. 1 Thus, the jury had no

way of knowing that the defendant's attempts to redirect the

conversation and lack of responsive answers amounted to a

refusal of such testing. Refusal evidence was simply not before

the jury.

Rather, the jury only heard that an officer asked "further

questions" of the defendant; that "[s]he either would start to

talk to [the other officer] or talk about something different, a

1 The judge even went so far as to prohibit the prosecutor from
eliciting testimony from the officer that the training he
received on OUI cases specifically included training on field
sobriety tests.

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different topic"; and that this went on for the "[n]umerous

amount of times that [he] asked." This does not amount to

"testimonial evidence which reveals a person's knowledge or

thoughts concerning some fact," Opinion of the Justices, 412

Mass. at 1208, particularly in light of the other evidence

indicating that in response to other questions posed by the

officers, the defendant was "talking in and out"; "had slurred

speech"; and "was difficult to understand at times," such that

the officers had trouble holding a conversation with her. The

evidence actually before the jury concerned the officers'

observations of signs of impairment that were made during their

interactions with the defendant at the scene. See Commonwealth

v. Hampe, 419 Mass. 514, 523 (1995). This was proper.

The defendant also claims that the prosecutor made improper

remarks in his closing argument, which include that: (1) the

defendant "was really close to doing the right thing, real

close"; (2) "[r]eal close didn't quite get all the way there";

(3) "when the officers were asking her questions and couldn't

get a straight answer, does that have anything to do with

stomach issues or anything to do [with what] you're going to

read in these [medical records]"; and (4) "[s]he knew she

shouldn't have been driving." Because the defendant did not

object to the claims she now raises on appeal, we review to

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determine whether there was error, and if so, whether it created

a substantial risk of a miscarriage of justice.

To determine whether the prosecutor's closing argument

created a substantial risk of a miscarriage of justice, and

keeping in mind that "[e]rrors of this magnitude are

extraordinary events and relief is seldom granted," Commonwealth

v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions:

"(1) Was there error? (2) Was the defendant prejudiced by the

error? (3) Considering the error in the context of the entire

trial, would it be reasonable to conclude that the error

materially influenced the verdict? (4) May we infer from the

record that counsel's failure to object or raise a claim of

error at an earlier date was not a reasonable tactical

decision?" Id. at 298 (citations omitted). "Only if the answer

to all four questions is 'yes,' may we grant relief." Id. See

Commonwealth v. Russell, 439 Mass. 340, 345 (2003); Commonwealth

v. Coutu, 88 Mass. App. Ct. 686, 693 (2015).

The defendant claims that the prosecutor's statements urged

the jury to draw impermissible consciousness of guilt inferences

from the sanitized evidence and were unsupported by the trial

evidence. We disagree. The first two challenged remarks, i.e.,

almost "doing the right thing," related to the defendant pulling

her car over to the side of the road, but not fully succeeding

because she fell asleep and did not turn the car off. The

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fourth challenged remark, i.e., arguing that the defendant

"knew" she should not be driving was implied by her choice to

pull over and stop driving. The third challenged remark, also

based on the evidence, was the prosecutor's request for the jury

to employ their common sense to determine whether the

defendant's slurred speech and inability to answer questions was

because of her medical issues or because she was impaired by the

alcohol she had consumed.

Even if, as the Commonwealth acknowledges, these statements

would have been better left unsaid, the defendant is not

entitled to relief. "The prosecutor's language, [even if] ill-

chosen, was not so rousing or inflammatory as to sweep the jury

beyond rational examination of the evidence." Commonwealth v.

Lassiter, 80 Mass. App. Ct. 125, 132 (2011). In the context of

the entire argument, the statements "amount to little more than

enthusiastic rhetoric, strong advocacy, and excusable

hyperbole." Commonwealth v. Costa, 414 Mass. 618, 629 (1993).

Additionally, a jury instruction providing that closing argument

is not evidence, as was provided by the judge here, "may

mitigate any prejudice in the final argument." Commonwealth v.

Kozec, 399 Mass. 514, 517 (1987). Jurors are presumed to follow

such instructions. See Commonwealth v. Pope, 406 Mass. 581, 588

(1990).

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Moreover, considering the challenged remarks within the

context of the entire trial, they merely highlighted the

compelling evidence of the defendant's impairment, including

that the officers found her slouched over with her eyes closed

in her vehicle, with its engine still running; the defendant

admitted to the officers that she had two drinks, she has

stomach issues, and when she drinks, it can severely impair her;

and the defendant was "talking in and out," had slurred speech,

and was difficult to understand at times. To the extent these

statements refer to the sanitized evidence, the jury would more

likely have inferred that the officers could not get a straight

answer from the defendant because she was so impaired, rather

than because she was conscious of her own guilt. Even if the

prosecutor's argument contained improper remarks, or that there

was no strategic choice for counsel to forego an objection to

them, the defendant has failed to prove that they materially

influenced the verdict. See Commonwealth v. Dresser, 71 Mass.

App. Ct. 454, 458 n.10 (2008) (defendant's burden to establish

existence of substantial risk of miscarriage of justice).

Because we do not answer all four of the Randolph inquiries

in the affirmative, the defendant has failed to establish that

the prosecutor's closing argument created a substantial risk

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that justice miscarried. See Randolph, 438 Mass. at 298; Coutu,

88 Mass. App. Ct. at 693.

Judgment affirmed.

By the Court (Meade,
Massing & Sacks, JJ. 2),

Assistant Clerk

Entered: January 30, 2024.

2 The panelists are listed in order of seniority.

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