NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-104

COMMONWEALTH

vs.

WILLIAM A. ROGERS, THIRD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant, William Rogers, was 

convicted of operating a motor vehicle while under the influence 

of alcohol, see G. L. c. 90, § 24 (1) (a) (1).1 On appeal, he 

challenges the sufficiency of the evidence and the admissibility 

of statements of a percipient witness, and urges us to reverse 

his conviction based on an error in the prosecutor's closing 

argument. We affirm.

1. Sufficiency. The defendant contends that the evidence 

was insufficient to show that he was operating under the 

influence of alcohol. To prove that he was operating under the 

influence, "[t]he Commonwealth need not prove that the defendant 

1 Charges of operating with a revoked license as a habitual 

offender under G. L. c. 90, § 23, and of disguising to obstruct 

justice under G. L. c. 268, § 34, were dismissed.
2

actually drove in an unsafe or erratic manner, but it must prove 

a diminished capacity to operate safely." Commonwealth v. 

Connolly, 394 Mass. 169, 173 (1985).

A McDonald's restaurant patron going through the drivethrough discovered a running vehicle blocking the way.2 The 

driver approached the driver's side of the vehicle and saw the 

defendant, who was unresponsive, "slouched over" the steering 

wheel, and holding a cigarette that had burned down to the 

filter. The driver called the police. It took the driver's 

fiancée, a nurse, forty-five seconds to rouse the defendant and 

confirm he was awake.

The responding officer approached the driver's side of the 

vehicle. He had to knock on the window twice and yell to get 

the defendant's attention. The defendant was "slumped over at 

the neck, appeared to be sleeping" and had a McDonald's 

hamburger in his lap. The officer noticed that the defendant 

had red, bloodshot, and glossy eyes, and slurred speech. When 

the officer asked him if he knew where he was, the defendant 

responded, "Here." When asked for a license, the defendant said 

he didn't have one. The defendant also said that he had one 

beer earlier in the evening.

2 It was parallel parked running across the exit from the drivethrough.
3

The defendant agreed to complete roadside assessments, and 

after struggling to get out of the vehicle on his own, failed to 

complete all three assessments to the officer's satisfaction. 

The officer concluded that the defendant was impaired and placed 

him under arrest.

These facts are sufficient to show that the driver suffered 

from a diminished capacity to drive safely. See Connolly, 394 

Mass. at 173. He was unable to stay awake, he was parked in a 

manner that blocked oncoming drivers and suggested he was 

unaware of the surroundings, he was difficult to rouse, he could 

not provide clear answers to simple questions, and, according to 

the officer on the scene, he was slurring his speech. See 

Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393

(2017). In addition, he was unable to complete the field 

assessments to the officer's satisfaction. Id. The verdict was 

supported by the evidence.

2. "Hearsay." On direct examination, the driver who 

attempted to assist the defendant testified that the defendant 

slurred his words. On cross-examination it emerged that the 

driver's fiancée was speaking with the defendant while the 

driver was on the telephone, and that the driver could not hear 

the words spoken but could hear that the defendant was mumbling.

Although no objection was lodged at the time, the defendant now 
4

argues that the reference to slurred speech was inadmissible 

hearsay.

The difficulty with this argument is that, at the time the 

testimony was heard on direct examination, it emerged as a 

proper answer to a proper question. The possibility that the 

speaker lacked first-hand knowledge, or may have repeated what 

he heard from his fiancée, materialized only on crossexamination. However, at this juncture there was no objection 

or motion to strike. See Commonwealth v. Grady, 474 Mass. 715, 

720-721 (2016) (motion to strike required where question proper 

but answer was not). We therefore review for error, and if 

there was error, for a substantial risk of a miscarriage of 

justice.

We are not persuaded that the testimony on crossexamination fatally undermined the testimony on direct 

examination. The witness could hear the defendant's voice. Nor 

are we persuaded that the distinction between "slurred" and 

"mumbled" rises to the level of evidentiary error, or that if it 

did, such an error led to a substantial risk of a miscarriage of 

justice. The responding officer also testified that the 

defendant's speech was slurred. The evidence of the defendant's 

inert and unresponsive physical condition was compelling, and 

the evidence was otherwise strong.
5

3. Closing argument. When summarizing the evidence during 

closing argument, the prosecutor said, "I told you at the 

beginning of this trial that the case would be simple. You 

would hear from two witnesses who will tell you -– who testified

that the defendant was operating under the influence of alcohol 

on that evening." While the prosecutor was permitted to argue 

in summation that the Commonwealth had proven that the defendant 

was operating under the influence, this statement was marginally 

in error for two reasons. First, the testimony was that the 

defendant was impaired, not that he was driving under the 

influence. For this reason, the prosecutor's summation did not 

accurately describe the evidence. See Mass. G. Evid. § 1113 

note, subsection (b)(2) (2022). Cf Commonwealth v. Perez, 444

Mass. 143, 150-151 (2005), and cases cited. Second, any such 

testimony regarding the ultimate issue in the case would have 

been improper. See Commonwealth v. Canty, 466 Mass. 535, 544 

(2013). However, the jury were instructed to take their own 

recollection of the evidence, and that closing arguments were

not evidence. We presume that the jury followed those 

instructions. Id. at 545.

Moreover, there was no objection to the summation, and for 

the reasons stated in Canty, 466 Mass. at 545, we discern no 

substantial risk of a miscarriage of justice. The evidence was 

strong, and the prosecutor was entitled to argue that the 
6

Commonwealth had proven that the defendant was operating under 

the influence of alcohol. The prosecutor's error in attributing 

testimony to the witnesses, rather than making the same point in 

argument, was a misstep, but she was entitled to urge on the 

jury a finding of guilt. We may attribute to the jury a measure 

of common sense and sophistication that would permit them to 

separate facts from overstatement. See Commonwealth v. Silva, 

455 Mass. 503, 515 (2009) ("The jury are assumed to possess 

sufficient sophistication in sorting out excessive claims").

Judgment affirmed.

By the Court (Sullivan, 

Shin & Hodgens, JJ.3),

Clerk

Entered: February 10, 2023.

3 The panelists are listed in order of seniority.