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17-P-948                                               Appeals Court

                 COMMONWEALTH   vs.   MICHAEL AHERN.


                            No. 17-P-948.

       Suffolk.        October 11, 2018. - October 7, 2019.

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


Motor Vehicle, Homicide, Operating under the influence.
     Alcoholic Liquors, Motor vehicle. Evidence, Intoxication.
     Practice, Criminal, Presumptions and burden of proof,
     Argument by prosecutor, New Trial.



     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.


     Dara Z. Kesselheim, Assistant District Attorney (Gregory D.
Henning, Assistant District Attorney, also present) for the
Commonwealth.
     Sean M. Smith for the defendant.


    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).
                                                                      2


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




     1 Smith was acquainted with the defendant, who had been
instrumental in helping her obtain the job as bar manager at
Slate. She believed he was one of the owners, along with
several other people. Smith testified that she was permitted to
serve certain people, including owners, regulars at the bar, and
friends without charging them; she described the process as a
"comp tab" and said that, at least a couple of times, the
defendant had not paid his tab for that reason. Smith also
identified various surveillance cameras located "[a]ll the way
down at the opening of the bar" and "one . . . above the kitchen
door."
                                                                      3


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


     2 Smith also testified that the defendant's vehicle was in
the parking lot of the bar when the defendant was present, the
same Ford pick-up truck that killed the victim.
                                                                     4


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




     3 Schmidt described the defendant's leaving as "an Irish
exit. It's kind of a no goodbye, didn't hear anything from him,
just kind of, he was gone, up and left." In summarizing
Schmidt's testimony in his closing argument, the prosecutor
repeated the term. The judge took exception to the use of the
term "Irish exit"; he wrote in his decision allowing the
defendant's motion for a new trial that "while it may not have
been intended, this comment conjures up the worst of stereotypes
and is insulting and offensive to many. Comments on ethnicity
have no place in a courtroom. Even though it originated with a
witness, its repetition by the prosecutor was unwarranted and
potentially prejudicial." We agree that ethnic slurs and
stereotypes should be avoided in the court room; however, trial
lawyers take their witnesses as they find them, and repetition
of this particular term cannot be said to be prejudicial here,
as it did not relate to the defendant's character, driving,
intoxication, or use of alcohol. Moreover, at oral argument,
defense counsel explicitly disclaimed any claim that use of the
term was prejudicial here.
                                                                    5


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

defendant was intoxicated.     When he spoke to the troopers, the

defendant said that he had "found" the victim and appeared not

to understand that there was damage to his truck.




     4 The victim's wife testified; she said that her husband was
the primary caretaker for their two children. In the summer, he
liked to go fishing at night near the gas tank on Morrissey
Boulevard. They would have a cookout with the fish and give
some of it away. She also testified that her husband frequently
rode his bicycle and that he was a good bicyclist -- "he’s
careful and he knows his way on the road." The last time that
she saw her husband alive was in the afternoon, hours before he
was killed, as he was preparing to go fishing.
                                                                    6


     At the defendant's request, the EMTs transported him to

Boston Medical Center.   During the ride, Mancuso rode with the

defendant in the back of the ambulance and noticed the smell of

alcohol on his breath.   Mancuso, who had been an EMT for twenty

years and a bartender for five years, testified specifically

that he believed the defendant was intoxicated.

     State Police Trooper James DeAngelis followed the ambulance

carrying the defendant to the hospital and he testified that he

noticed the smell of alcohol when the ambulance doors opened.5

DeAngelis also testified that the defendant had slurred speech,

and that, when the defendant was asked to produce his license at

the hospital, "I observed him pass his license once. . . .     [He]

passed his license again and then on the third attempt . . . he

pulled it out."   DeAngelis concluded his testimony by saying,

"My opinion was that he was drunk."

     State Police Detective Thomas Canning, the lead

investigator on the case, interviewed the defendant in the

hospital.   He observed the defendant to have somewhat slurred

speech and glassy eyes and noticed an odor of alcohol.   He also

watched the defendant stagger from his hospital bed to the

bathroom.   Based upon all of his observations, Canning concluded


     5 DeAngelis testified, "I immediately detected a fairly
strong odor of an alcoholic beverage coming from within the
vehicle. I remember it being kind of a cool, crisp night and I
was just hit with an odor as the doors opened."
                                                                    7


that the defendant was intoxicated when he interviewed him at

the hospital.

    At Boston Medical Center, Dr. Christopher Amanti examined

the defendant and smelled alcohol emanating from him.     Dr.

Harpaul Sandhu assisted with the defendant's treatment, and he

also noticed that the defendant's breath smelled of alcohol.

Both doctors opined that the defendant was intoxicated.    In

fact, Sandhu testified that, in his opinion, the defendant was

"very drunk."

    A State Police collision analyst later determined that the

defendant's truck had hit Bui from the rear, when Bui was

traveling on a bicycle in a straight line on the right hand side

of the road.    At the time, the defendant was traveling at least

fifty miles per hour; the collision knocked the victim's body

154 feet from the point of impact.    The speed limit in that

portion of the road was thirty miles per hour.

    During his opening statement, defense counsel told the jury

that Gregory Feeney, the defendant's business partner, would

testify to the defendant's whereabouts from approximately 6 P.M.

to 10 P.M. on September 13, 2014.    Specifically, counsel told

the jury they would hear testimony from the defendant's business

partner that the two men were at a community meeting and that

there was a back and forth between and among people engaged in

the meeting, an "intellectual exercise" in the late afternoon
                                                                  8


and early evening -- with the inference that no alcohol was

consumed.

     In fact, the defense never called Feeney to testify,

because counsel learned midway through trial that the defendant

was not one of the owners of Slate; as a result, it was

counsel's belief that, if Feeney testified, that information

would discredit the defendant.    As a result, the jury never

heard any evidence regarding the defendant's activities between

approximately 6 P.M. and 9:48 P.M. on the night in question.6

     The prosecutor made the following statement during his

closing argument:

          "Last week [defense counsel] stood up in front of
     you and told you you'd receive some evidence about
     where Michael Ahern was between [5] P.M. and [9:48]
     P.M. You didn't receive any of that evidence. The
     only thing you heard is that he dropped off Mary
     Pierce after they were at a bar sometime around [5:45]
     or [6] P.M.

          "You know at [5] P.M. he was at Sel Delaterre and
     he was drinking and the next time he pops up on the
     grid, it's [9:48] P.M. and he's at a bar and he's
     drinking. That's all you know about his whereabouts.
     Apply your common sense. When you do that, when
     you're diligent and you go through the video, you're
     going to notice a couple of things and I'm going to
     ask you very specifically how to do this.

          "Pull this television up to the table. Sit
     around it, all of you. Take out a piece of paper, use
     notes, watch each video and count what goes up to his
     mouth, count what touches his lips."




     6   The defendant ultimately did not call any witnesses.
                                                                   9


The prosecutor then went slowly through the video evidence,

pointing to each occasion where the defendant was drinking or

appeared to be drinking; he encouraged the jurors to do the same

thing during deliberations.   There was no objection to any

portion of the prosecutor's closing argument.   The jury

thereafter returned a verdict of guilty on the charge of

homicide by a motor vehicle while under the influence of an

intoxicating substance.

     On March 16, 2017, the defendant filed a motion for a new

trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435

Mass. 1501 (2001).   He argued that the prosecutor's statement

about the defense's failure to call Feeney constituted improper

burden shifting and that his trial counsel was ineffective.7     The

judge concluded that the prosecutor had impermissibly shifted

the burden of proof to the defense and he allowed the motion.

The judge analyzed the issue, essentially, as one involving a

missing witness and viewed the prosecutor's argument as calling

for the jury to draw a negative inference from the defense's




     7 The defendant also argued that defense counsel had been
ineffective when he told the jury in his opening that Feeney
would testify and then failed to call him as a witness. The
judge rejected that claim, concluding that "trial counsel's
decision against calling Mr. Feeney was a reasonable strategic
decision where the testimony threatened to harm the
[d]efendant's case." The defendant does not challenge that
decision here.
                                                                    10


failure to call Feeney as a witness.   In the judge's view, the

argument created a substantial risk of a miscarriage of justice.

    2.   Discussion.    "We review the allowance of a motion for a

new trial for abuse of discretion or error of law," Commonwealth

v. Downey, 65 Mass. App. Ct. 547, 552 n.12 (2006), accepting all

of the judge's findings "if supported by the evidence,"

Commonwealth v. Scott, 467 Mass. 336, 344 (2014).    We pay

particular deference to the motion judge where, as here, he was

also the trial judge.   Id.   However, because there was no

objection to the prosecutor's closing argument, we review to

determine whether there was error and, if so, whether the error

created a substantial risk of a miscarriage of justice.       See

Commonwealth v. Harris, 481 Mass. 767, 777 (2019); Commonwealth

v. Ferreira, 460 Mass. 781, 788 (2011).

    "In closing argument, a prosecutor may argue 'forcefully

for a conviction based on the evidence and on inferences that

may reasonably be drawn from the evidence.'    Commonwealth v.

Kozec, 399 Mass. 514, 516 (1987).   In doing so, the prosecutor

may not shift the burden of proof or argue that the defendant

has any affirmative duty to prove his innocence."    Commonwealth

v. Fernandes, 478 Mass. 725, 741 (2018).   However, "[i]f he

speaks with propriety on matters on the record before the jury,

a prosecutor may properly comment on the trial tactics of the
                                                                  11


defence and on evidence developed or promised by the defence."

Commonwealth v. Dunker, 363 Mass. 792, 800 (1973).

    "Closing arguments must be viewed 'in the context of the

entire argument, and in light of the judge's instruction to the

jury, and the evidence at trial.'   [Commonwealth v. Braley, 449

Mass. 316,] 328-329 [(2007)], quoting Commonwealth v. Colon-

Cruz, 408 Mass. 533, 553 (1990)."   Commonwealth v. Muller, 477

Mass. 415, 431 (2017).   Here, defense counsel promised in his

opening statement that Feeney would testify as to the

defendant's whereabouts for a substantial portion of the

evening; Feeney was never called.   As a result, the prosecutor

was entitled to note in his closing argument the absence of that

evidence from the record.   See Commonwealth v. Tavares, 27 Mass.

App. Ct. 637, 642-643 (1989) ("Although defense counsel in his

opening stated that he would produce witnesses who were with the

defendant at 11 P.M. on the night of the incident, none was

produced.   After the prosecutor, in closing, referred to the

defendant's stated intention in opening argument to produce

witnesses, the defendant moved for a mistrial. . . .    In view of

the defendant's opening argument and his claims of alibi, the

prosecutor's remarks were not improper").

    Significantly, the Supreme Judicial Court recently

reiterated, in the context of an allegation that the

prosecutor's argument was burden shifting, "'[a] prosecutor is
                                                                  12


entitled to emphasize the strong points of the Commonwealth's

case and the weaknesses of the defendant's case, even though he

[or she] may, in so doing, prompt some collateral or passing

reflection on the fact that the defendant declined to testify.'

Commonwealth v. Nelson, 468 Mass. 1, 12 (2014), quoting

Commonwealth v. Feroli, 407 Mass. 405, 409 (1990)."

Commonwealth v. Collazo, 481 Mass. 498, 503 (2019).

    Furthermore, as the judge emphasized in his findings, the

promised witness would not have testified to a time that was

particularly relevant to the crime charged.   The accident

occurred at midnight, and the witness left the defendant before

he walked into Slate.   And, after the challenged comment, the

prosecutor's argument examined the defendant's behavior at Slate

in detail.

    It is significant here that experienced defense counsel did

not object to the argument.   See Commonwealth v. Montez, 450

Mass. 736, 748 (2008) ("'Although not dispositive of the issue,

the absence of [an objection on this precise point and the

absence of a request for a curative instruction] from

experienced counsel is some indication that the . . . substance

of the now challenged aspects of the prosecutor's argument were

not unfairly prejudicial.'    Commonwealth v. Toro, 395 Mass. 354,

360 (1985).   Moreover, the judge's forceful instruction that the

defendant is presumed innocent, that he does not have to prove
                                                                  13


his innocence, and that the Commonwealth must prove each

essential element of the crimes charged beyond a reasonable

doubt mitigated any potential prejudice.   [Kozec, 399 Mass. at

517]").   Here, too, the judge explicitly and appropriately

charged the jurors, both before and after closing arguments,

that arguments of counsel are not evidence and should not be

regarded as such.

    Finally, even were we to accept the defendant's contention

that the prosecutor's comment improperly asked the jury to

infer, from the absence of the promised evidence, that the

defendant was drinking between 6 P.M. and 10 P.M., we see no

risk of a miscarriage of justice.   The evidence here was

overwhelming.   The jury viewed video that showed the defendant

drinking at least one, and at least part of another, bottle of

champagne at a bar shortly before the accident.   The

Commonwealth offered the testimony of four State Police

officers, an EMT, and two emergency room doctors who opined that

the defendant was intoxicated when they spoke with him shortly

after he struck Bui with his truck while speeding on Morrissey

Boulevard in Dorchester that night.   No other element of the

crime charged was at issue.   In addition, there was considerable

evidence of consciousness of guilt.   The defendant gave

conflicting accounts of his behavior, responding at least once
                                                                  14


that he had nothing to drink and on other occasions saying that

he had one beer or "had one drink at work."

    Certainly, we see no risk of a miscarriage of justice in

the jury's verdict.   For all these reasons, we conclude that the

judge abused his discretion in allowing the defendant's motion

for a new trial; the order is therefore reversed.


                                   So ordered.
