Commonwealth v. Beltrandi (Lawyers Weekly No. 11-027-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1926 Appeals Court COMMONWEALTH vs. AMY B. BELTRANDI. No. 14-P-1926. Hampshire. December 14, 2015. – March 14, 2016. Present: Grainger, Hanlon, & Agnes, JJ. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Argument by prosecutor, Witness. Evidence, Absence of witness. Witness. Complaint received and sworn to in the Eastern Hampshire Division of the District Court Department on May 29, 2012. The case was tried before John M. Payne, Jr., J. Tara B. Ganguly for the defendant. Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth. AGNES, J. In this appeal from her conviction of operating a motor vehicle on a public way while under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a)(1), the defendant raises two issues. First, she argues that the Commonwealth presented insufficient evidence to permit the jury to find beyond a reasonable doubt that she operated the vehicle. While the question is a close one, we conclude that on the basis of the circumstantial evidence presented by the Commonwealth, the jury were entitled to draw a reasonable inference that the defendant was the operator of the vehicle. Second, she argues that the prosecutor’s closing argument was improper because in the absence of a missing witness instruction, the prosecutor should not have urged the jury to draw an adverse inference against the defendant due to the absence of a potential witness. We agree with the defendant that the prosecutor’s closing argument was improper, and conclude that it constituted prejudicial error. Accordingly, we reverse. Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found that at approximately 2:30 A.M. on May 29, 2012, a resident of Ware awoke to see a truck (later identified as a 2006 Toyota Tacoma pickup truck) stopped on Route 9 (Belchertown Road). Two-thirds of the vehicle was in the road and about one-third was over the fog line. The resident placed a telephone call to 911. Officer Scott Underwood of the Ware police department arrived soon thereafter. Initially, he saw the truck in the westbound lane, with its engine running and its lights out. He noticed that the windows were fogged up. He did not see any movement inside the vehicle. While standing at the vehicle’s back bumper, he […]