Opinion
14-P-25
11-19-2014
COMMONWEALTH v. MICHAEL T. BARTLESON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Michael T. Bartleson, of operating a motor vehicle while under the influence of liquor, third offense, in violation of G. L. c. 90, § 24(l)(a)(l). Shortly thereafter, the defendant filed this timely appeal. Given that the Commonwealth's evidence at trial was primarily circumstantial in nature, the defendant argues that the trial judge erred by failing to instruct the jury on the applicable law of circumstantial evidence and inferences drawn therefrom. We affirm.
The defendant failed to object to the jury instructions at trial; therefore, we must review the charge for an error which creates a substantial risk of a miscarriage of justice. See Commonwealth v. Whitman, 430 Mass. 746, 750 (2000). Analysis under this standard asks four questions: (1) was there error?; (2) was the defendant prejudiced by the error?; (3) considering the error in the context of the entire trial, is it reasonable to conclude that the error materially influenced the verdict?; and (4) whether it can be inferred from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). "Only if the answer to all four questions is 'yes' may we grant relief." Id. at 298.
The judge did not err in delivering her instructions to the jury. Jurors are permitted to draw inferences based on circumstantial evidence. See Commonwealth v. Anderson, 396 Mass. 306, 311 (1985). "Judges need not deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words." Commonwealth v. Torres, 420 Mass. 479, 484 (1995), cert. denied, 528 U.S. 898 (1999). In her instructions to the jury, the judge stated, "You alone determine what evidence to accept, how important any evidence is that you do accept and what conclusions to draw from all of the evidence. . . . You should determine the facts based solely on the fair consideration of the evidence. You are to be completely fair and impartial . . . ." The judge continued, "You are to decide this from all the believable evidence in this case together with any reasonable inferences that you draw from the evidence. You may rely on your experience and common sense about the effects of alcohol, you should evaluate any believable evidence about the defendant's alleged consumption of alcohol and the defendant's appearance and condition and behavior at the time." In addition, the judge instructed the jury on the presumption of innocence and the Commonwealth's burden to prove its case beyond a reasonable doubt, which is not to be based on "suspicion or conjecture." The jury are presumed to follow a judge's instructions, Commonwealth v. Gonzales, 465 Mass. 672, 681 (2013), and in the instant case, the judge's instructions "could not have led the jury to engage in unwarranted speculation." Commonwealth v. Schand, 420 Mass. 783, 795 (1995).
Moreover, even if there were arguable error here, it would not be reasonable to conclude that such an error materially influenced the verdict. There was abundant direct and circumstantial evidence to establish the defendant's guilt, including the condition in which he and his car were found, specifically his bloodshot eyes, slurred speech, and lack of balance. The defendant's alternative theory for his behavior -- that it was the result of an earlier physical altercation -- was thoroughly argued at trial. Considering the strength of the Commonwealth's case, there was no danger of jury confusion here.
Thus, we conclude that there was no error resulting in a substantial risk of a miscarriage of justice, and uphold the defendant's conviction.
Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 19, 2014.