Commonwealth v. Colon

• Decision Date: 22 July 2016
• Docket Number: No. 15–P–1338.,15–P–1338.
• Citation: 89 Mass.App.Ct. 1133,55 N.E.3d 432 (Table)
• Parties: COMMONWEALTH v. Shaun COLON.
• Court: Appeals Court of Massachusetts

89 Mass.App.Ct. 1133
55 N.E.3d 432 (Table)

COMMONWEALTH
v.
Shaun COLON.¹

No. 15–P–1338.

Appeals Court of Massachusetts.

July 22, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial, the defendant was convicted of several offenses related to his operation of a motor vehicle while under the influence of alcohol. On appeal, the defendant claims the prosecutor erred in his closing argument. We affirm.

The defendant's only argument on appeal is that the prosecutor's closing argument, to which he did not object, improperly asked the jury to consider their personal experiences and use common sense, creating a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002). Specifically, the defendant claims that, after the prosecutor noted that one of the arresting officers did not observe the defendant perform field sobriety tests, but still concluded that he was under the influence of alcohol, the prosecutor “set forth a hypothetical which asked the jurors to, essentially imagine themselves in a scenario that was wholly irrelevant and went well beyond the facts of the case” with “unnecessary and hyperbolic embellishments.”³ We disagree.

In this instance, the prosecutor's closing remarks made an acceptable argument based on fair inferences of fact and properly commented on and responded to the defendant's attempts to discredit the testifying officers' credibility. See Commonwealth v. Kee, 449 Mass. 550, 560 (2007). After the defense suggested that the testifying officers did not sufficiently observe the defendant to fairly conclude that he was under the influence of alcohol, the prosecutor's closing included a permissible “retaliatory reply” where the prosecutor properly asked the jury to consider the officers' training, experience, and observations that would lead them to their conclusions. Ibid.

The prosecutor then posed a proper hypothetical urging the jury to consider how an individual interacts with and identifies an intoxicated person based on their own common sense and experience. Although it is error for a prosecutor to make an argument designed to evoke...