Heard: October 11, 2018.
Indictment found and returned in the Superior Court
Department on November 14, 2012. The case was tried before
Christopher J. Muse, J., and a motion for a new trial, filed
on March 16, 2017, was heard by him.
Z. Kesselheim, Assistant District Attorney (Gregory D.
Henning, Assistant District Attorney, also present) for the
M. Smith for the defendant.
Present: Green, C.J., Hanlon, & Maldonado, JJ.
jury trial, the defendant, Michael Ahern, was convicted of
motor vehicle homicide while under the influence of an
intoxicating substance, G. L. c. 90, § 24G (a). After
trial, he moved for a new trial, contending that, in closing
argument, the prosecutor had shifted the burden of proof to
the defense. The trial judge allowed the motion and the
Commonwealth appeals. We reverse.
jury heard the following evidence. On September 13, 2012, at
approximately 4:30 P.M., the defendant and a friend went to a
Boston restaurant for drinks and appetizers. While they were
there, the defendant consumed one Amstel Light beer. At
around 5:46 P.M., the defendant and the friend left the
restaurant, and the defendant drove her to South Boston.
approximately 9:48 P.M., the defendant walked into the Slate
Bar & Grill (Slate) at 109 High Street in Boston and
ordered a glass of champagne. At just after 10 P.M., Lindsey
Smith, the bar manager at Slate, selected a bottle of
champagne and brought it to the defendant at a
table. She poured some champagne in a glass for
herself and some in a glass for the defendant. Smith drank
only some of her glass of champagne because she was working;
she testified that she spent about an hour with the
defendant, using the time to complain about her general
manager. She was emphatic that she had not finished her glass
of champagne, or consumed anything else from the bottle.
footage (video) from the establishment showed the defendant
switching the glasses, taking Smith's partially full
glass, and drinking what was left in the glass. He then
appeared to finish drinking what was in the bottle of
champagne by tipping it upwards and emptying its contents. At
around 11 P.M., Smith went back to the bar area of the
restaurant, and the defendant moved from his table to the
bar. Smith then opened a second bottle of champagne and
poured a glass for the defendant.
Schmidt also testified that he worked at Slate on the night
in question. He knew the defendant and believed him to be one
of the owners. Schmidt remembered that, earlier in the
evening, Smith had received a text from the defendant that he
was on the way and so they "kind of notified everybody
that one of the owners [was] coming in, don't close the
kitchen early, don't start breaking down for the night,
you know, leave everything in order." Schmidt testified
that the defendant sat with Smith in the dining area for
about an hour and then moved to the bar. At around midnight,
Schmidt heard a glass break; he saw that it had happened at
the place where the defendant was sitting. Right afterwards,
he heard the door open and saw the defendant leave --
"[n]ot a stroll out the door but just kind of with
after 12:15 A.M., Boston Police Officer Marilynne Gaffey
noticed the defendant's pickup truck stopped on the side
of Morrissey Boulevard in the Dorchester section of Boston.
She also saw the victim, Doan Bui, and his bicycle lying in
the road. She stopped, called for backup and medical
assistance, and went to help the victim, who was
nonresponsive. He was dressed in a black hooded sweatshirt.
Emergency medical technicians (EMTs) Matthew King and
Christopher Mancuso arrived soon after Gaffey and determined
that the victim was dead.
EMTs found the defendant sitting against a fence by the side
of Morrissey Boulevard. Both EMTs noticed that the defendant
had slurred speech, and King noticed that he had glossy eyes,
as if he had been crying. State Police Trooper Gregory Turco
spoke with the defendant and testified that the
defendant's responses were "unintelligible"
because his speech was slurred. Turco testified that, based
upon "[t]he odor of alcohol, his inability to look us in
the eye when he was speaking with us, his confusion, his
confused state, and based on what we saw, our interactions
with him, I formed an opinion that, yes, he was
intoxicated." Turco's partner, State Police Trooper
Richard Lauria, also testified that, in his opinion, the