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Commonwealth v. Ahern

Appeals Court of Massachusetts, Suffolk

October 7, 2019

COMMONWEALTH
v.
MICHAEL AHERN.

          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.

          Para Z. Kesselheim, Assistant District Attorney (Gregory D. Henning, Assistant District Attorney, also present) for the Commonwealth.

          Sean M. Smith for the defendant.

          Present: Green, C.J., Hanlon, & Maldonado, JJ.

          HANLON, J.

         After a 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.

         1. Background.

         The 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.

         At 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.[1] 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.

         Videotape 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.[2]

         Brian 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 intent."[3]

         Shortly 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.[4]

         The 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 ...


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