Heard: January 18, 2017.
found and returned in the Superior Court Department on April
pretrial motion to suppress evidence was heard by C. Jeffrey
Kinder, J.; the case was tried before Tina S. Page, J.; and a
motion to reduce the verdict was heard by Edward J.
McDonough, Jr., J.
renewed motion to stay execution of sentence, which was filed
in the Appeals Court on June 8, 2016, was considered by
Barbara Munro for the defendant.
Bala, Assistant District Attorney, for the Commonwealth.
Agnes, & Desmond, JJ.
a nine-day jury trial in the Superior Court, the defendant,
Daniel Leary, was convicted of motor vehicle homicide by
reckless or negligent operation while under the influence of
alcohol. See G. L. c. 90, § 24G(a.) . The case comes
before us by two routes: the defendant's direct appeal,
and his appeal from an order of a single justice of this
court denying his renewed motion to stay execution of his
sentence pending the direct appeal. For the reasons that follow,
recite the facts as the jury could have found them, reserving
several details for later discussion. On March 25, 2011, at
approximately 3:30 P.M., Peter Desrosiers came to the
defendant's house with a "thirty-pack" of beer.
The defendant was preparing motorcycles for a "motor
cross" race the next day. About one hour later, the
defendant took his motorcycle to the racetrack, in Southwick,
and Desrosiers followed in his truck, bringing the beer with
him. At the racetrack, the defendant continued his
preparations for the next day's race. At approximately
9:00 P.M., the defendant and Desrosiers left the racetrack
together in Desrosiers's truck to pick up another
motorcycle at the defendant's cousin's friend's
home, in West Springfield. The defendant drove because
Desrosiers felt drunk, having consumed as many as one dozen
beers by this time. They spent about an hour at the
cousin's friend's home, drinking beers that the
defendant had brought with him, and then left -- without the
motorcycle, as it needed repairs -- to return to the
racetrack. Again, the defendant drove.
route took them through a residential area, along Dewey
Street, where the victim was at a friend's home,
celebrating another friend's recent engagement. At
approximately 10:20 P..M., at the same time as the defendant
was driving down Dewey Street, the victim was walking on the
side of the road outside his friend's home. When the
defendant saw the victim, who was to his right, he swerved to
the right, striking the victim. The vehicle continued briefly
along the lawn, knocking over a mailbox, before coming to a
stop about sixty feet from the point of impact. The victim
was taken to an area hospital, where he later died of his
Brian Duffy of the West Springfield police department arrived
at the scene within ten minutes of the accident. While
speaking with the defendant, the officer detected a strong
odor of alcohol on the defendant's breath, and he (Duffy)
noticed that the defendant's eyes were glassy and
bloodshot. Duffy asked the defendant if he had been drinking,
and the defendant admitted to having consumed two beers.
After the officer administered field sobriety tests, he and
another officer who observed the tests, Michael Kennedy,
formed the opinion that the defendant was impaired, and they
arrested him. At the police station, the defendant blew twice
into a breathalyzer machine. Each sample registered a blood
alcohol concentration (BAC) of .19 percent.
April 27, 2011, a grand jury indicted the defendant for motor
vehicle homicide by reckless or negligent operation while
under the influence of alcohol or with a BAC of .08 percent
or greater. See G. L. c. 90, § 24G(a.) . The
defendant's first trial, which began on March 20, 2013,
ended in a mistrial. On July 25, 2013, following a nine-day
retrial, at which the defendant elected to testify on his own
behalf, a jury of the Superior Court convicted the defendant.
The verdict form permitted the jury to convict him under
either or both of two theories -- that he was under the
influence of alcohol, or that his BAC was .08 percent or
greater. According to the verdict form, the jury accepted the
former theory, and rejected the latter. See note 7,
Admissibility of breathalyzer test results.
defendant contends that the judge (suppression judge) erred
by denying his pretrial motion to suppress the results of the
breathalyzer test. Those results, he argues, were improperly
admitted because the breath test operator did not observe him
for fifteen minutes prior to administering the test, in
violation of 501 Code Mass. Regs. § 2.13(3) (2010).
"The purpose of the fifteen-minute waiting period is to
ensure that the defendant has not brought any substance into
his mouth, such as food, drink, or regurgitation by burping
or by hiccoughing, that would have had a contaminating impact
on the accuracy of the results, and to permit a sufficient
lapse in time to allow such possible contaminants to
clear." Commonwealth v. Pierre, 72 Mass.App.Ct.
230, 231-232 (2008). This regulation was designed to ensure
the accuracy of the results. Commonwealth v.
Hourican, 85 Mass.App.Ct. 408, 411 (2014). However,
"mere 'deviations from meticulous
compliance'" do not justify the suppression of
breathalyzer test results. Commonwealth v.
Zeininger, 459 Mass. 775, 792 (2011), quoting from
Commonwealth v. Kelley, 39 Mass.App.Ct. 448, 453
(1995). "[I]n cases where there is a 'substantial
deviation, ' their admission constitutes reversible
error." Ibid., quoting from Pierre,
supra at 235.
record, which includes a video recording of the booking
process (booking video) and the breathalyzer test, confirms
that the breathalyzer test operator did not, himself, observe
the defendant for the requisite fifteen-minute period. The
suppression judge found, however, that there were multiple
officers at the booking, and that the defendant was in the
presence of one or more of them, continuously, for at least
twenty-eight minutes prior to the breathalyzer test. The
defendant takes issue with certain details in these findings,
such as the precise times that certain officers left or
returned to the booking room, and whether one officer was in
a position to observe him when he was taken to another area
for an additional field sobriety test.
reviewing a ruling on a motion to suppress, we accept the
judge's subsidiary findings absent clear error, but
conduct an independent review of his ultimate findings and
conclusions of law. Commonwealth v. Craan, 469 Mass.
24, 26 (2014). Here, we need look no further than the booking
video, upon which the suppression judge relied, to confirm
that the defendant was in the presence of one or more of a
handful of officers, in a relatively small booking area, for
more than the requisite fifteen-minute period. The booking
video also confirms the testimony of one of those officers,
who was with the defendant for most of the twenty-eight
minutes, and who testified that he did not observe the
defendant vomit, hiccough, burp, or place anything in his
mouth. We agree with the suppression judge that whatever
deviation there was from "meticulous compliance"
goes to the weight, not the admissibility, of the results.
Zeininger, 459 Mass. at 792.
Admission of prior testimony of an unavailable
Duffy, who responded to the scene of the accident, testified
during the defendant's first trial, which ended in a
mistrial. Three months before the date of the retrial, the
Commonwealth represented to the trial judge that Officer
Duffy would be unavailable to testify at the retrial for
medical reasons. The day before jury selection began in the
retrial, the trial judge allowed the Commonwealth's
motion to admit the transcript of Officer Duffy's
testimony from the first trial, over the defendant's
objection. See Mass. G. Evid. § 804(b)(1) (2017). After
the trial was underway, during a sidebar conference on the
day Officer Duffy's testimony was to be recited, counsel
withdrew his objection, telling the trial judge that the
parties had agreed to the reading of the transcript. Counsel
did not object when the prior recorded testimony was
admitted. On appeal, the defendant now argues that the
testimony was improperly admitted because the Commonwealth
failed to offer evidence of Officer Duffy's
unavailability. In the absence of an objection, we review the
admission of this evidence, if error, for a substantial risk
of a miscarriage of justice. Commonwealth v.
Randolph, 438 Mass. 290, 294-295 (2002) .
satisfied that no such risk is present. Certainly, had
Officer Duffy's testimony been excluded, the case against
the defendant would have been weaker. But, on review, the
question is whether "we are left with uncertainty that
the defendant's guilt has been fairly adjudicated."
Ibid., quoting from Commonwealth v. Azar,
435 Mass. 675, 687 (2002) . In this case, we are left with no
such uncertainty. First, at the time of the
Commonwealth's motion, the trial judge did not have the
benefit of Commonwealth v. Housewright, 470 Mass.
665, 671 (2015), to guide her analysis of witness
unavailability. Housewright did not alter existing
law, but merely "amplifie[d]" it, and
"established a framework for" analyzing
unavailability "because of illness or infirmity. . . .
Such a framework had not previously existed."
Commonwealth v. Dorisca, 88 Mass.App.Ct. 776, 777
n.2 (2015). Second, because the Commonwealth informed the
trial judge of the witness's anticipated unavailability
well in advance of the trial, this is not a case where
"the defendant ha[d] little opportunity to investigate
the witness's medical condition to challenge the
prosecutor's claim of unavailability."
Housewright, supra at 674. Third, and most
importantly, the defendant thoroughly cross-examined the
witness at the first trial, a fact that ameliorates potential
concerns about the defendant's rights under the State and
Federal confrontation clauses. See Commonwealth v.
Sena, 441 Mass. 822, 833-834 (2004) .
defendant claims that the prosecutor's closing argument
was improper for three reasons. We determine whether errors
occurred, before determining their cumulative effect. See
Commonwealth v. Niemic, 472 Mass. 665, 673 (2015) .
the defendant argues that the prosecutor improperly injected
his personal beliefs into the case when he said, "[T]he
Commonwealth doesn't even have to prove that [the
defendant] drove in an erratic manner, which he obviously
did. We don't have to prove it." (Emphasis
supplied.) This was not improper. The prosecutor
"interjected no extraneous material or belief but
[merely] expressed [his] view of the strength of the
evidence." Commonwealth v. Smith, 387 Mass.
900, 907 (1983).
Second, the defendant argues that the prosecutor improperly
vouched for the credibility of Officer Kennedy, who was at
the accident scene, and who testified to the defendant's
performance on the field ...