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Commonwealth v. Beltrandi

Appeals Court of Massachusetts, Hampshire

March 14, 2016

Commonwealth
v.
Amy B. Beltrandi

         Argued December 14, 2015

          Complaint received and sworn to in the Eastern Hampshire Division of the District Court Department on May 29, 2012.

         The case was tried before John M. Payne, Jr., J.

          Tara B. Ganguly for the defendant.

          Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth.

         Present: Grainger, Hanlon, & Agnes, JJ.

          OPINION

          [46 N.E.3d 1031] Agnes, J.

          In this appeal from her conviction of operating a motor vehicle on a public way while under the influence of alcohol in violation of G. L. c. 90, § 24(1)( a )(1), the defendant raises two issues. First, she argues that the Commonwealth presented insufficient evidence to permit the jury to find beyond a reasonable doubt that she operated the vehicle. While the question is a close one, we conclude that on the basis of the circumstantial

Page 197

evidence presented by the Commonwealth, the jury were entitled to draw a reasonable inference that the defendant was the operator of the vehicle. Second, she argues that the prosecutor's closing argument was improper because in the absence of a missing witness instruction, the prosecutor should not have urged the jury to draw an adverse inference against the defendant due to the absence of a potential witness. We agree with the defendant that the prosecutor's closing argument was improper, and conclude that it constituted prejudicial error. Accordingly, we reverse.

          Background.

          Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found that at approximately 2:30 a.m. on May 29, 2012, a resident of Ware awoke to see a truck (later identified as a 2006 Toyota Tacoma pickup truck) stopped on Route 9 (Belchertown Road). Two-thirds of the vehicle was in the road and about one-third was over the fog line. The resident placed a telephone call to 911. Officer Scott Underwood of the Ware police department arrived soon thereafter. Initially, he saw the truck in the westbound lane, with its engine running and its lights out. He noticed that the windows were fogged up. He did not see any movement inside the vehicle. While standing at the vehicle's back bumper, he saw " a female party in the driver's seat, male party in the passenger seat." [1] Officer Underwood rapped on the fogged up window on the driver's side several times before the defendant, the person seated in the driver's seat, rolled down the window. The defendant and her companion were only partially clothed. The parties dressed at the officer's request. The defendant stated that she and her companion were on their way home from a bar which she identified correctly by name, but incorrectly located in Chicopee. The defendant told Officer Underwood that she and her companion had been engaged in " sexual activity." Based on his observations of the defendant while she was seated inside the vehicle and later after she exited and performed several field tests, Officer Underwood formed the opinion that she was intoxicated and placed her under arrest. Officer Underwood also testified that the vehicle was registered to the defendant's husband, who was not the male companion in the vehicle.[2]

Page 198

          [46 N.E.3d 1032] At trial, the defendant did not dispute that the vehicle had been operated on a public way, or that she was intoxicated at the time of her arrest, but instead challenged whether the Commonwealth proved that she had operated the vehicle.[3] The defendant's companion was living in California at the time of trial, and was not available as a witness for either party.

          Discussion.

          1. Stand ...


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