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-1189

COMMONWEALTH

vs.

JACOB A. SCOTT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted of operating a motor vehicle under the influence 

of intoxicating liquor (OUI), second offense,1 the defendant 

appeals. He argues that during the prosecutor's closing 

argument she referred to facts not in evidence when she stated 

that the defendant was not charged with resisting arrest and 

that the defendant had told a State police trooper that he had 

"nothing to drink," and that she shifted the burden of proof by 

arguing, "why would someone say they had nothing to drink . . . 

[u]sually it's because they've had too much to drink." The 

defendant further argues that the judge should have given, sua 

sponte, a jury instruction clarifying that the trooper's 

1 After a jury trial on the underlying charge, the defendant 

entered a guilty plea on the second offense portion. The 

defendant was found not responsible for speeding and marked 

lanes civil infractions.
2

testimony about the defendant's performance on field sobriety 

tests (FSTs) was lay opinion and not expert opinion. We affirm.

Background. At approximately 2 A.M. on March 7, 2020, on 

Route 2 in Lancaster, State police Trooper Jeffrey Murray saw a 

blue Honda Civic pass another vehicle at a speed approximately 

twenty miles per hour more than the posted speed limit. The

Honda then crossed over into the left lane and back into the 

right lane, then swerved within its own lane. Trooper Murray 

activated his blue lights and the Honda pulled over into the 

breakdown lane.

Trooper Murray approached the Honda and asked the driver, 

the defendant, for his license and registration. Instead of 

providing those documents immediately, the defendant asked why 

he had been stopped. After Trooper Murray informed him of the 

speeding and marked lanes violations, the defendant provided the 

documents "sluggish[ly]." The defendant stated he was coming 

from a party with his friend in the passenger seat, who the 

trooper noted was "clearly intoxicated."

When asked whether he had been drinking that evening, the 

defendant replied unresponsively that he was "just trying to get 

his friend home." The defendant's eyes were glassy and 

bloodshot and his speech was slurred. At Trooper Murray's 

request, the defendant got out of the Honda to perform FSTs. As 
3

he got out of the car, the defendant was unsteady on his feet. 

The defendant did not object to performing the FSTs.

Before Trooper Murray finished instructing him on the ninestep walk-and-turn, the defendant began performing that FST. 

While doing so, the defendant stepped off the line, left a gap 

greater than two inches between his heel and toe on some steps, 

and improperly turned in a military-style about-face movement. 

At the turn, the defendant asked the trooper if he had completed 

nine steps. When Trooper Murray instructed the defendant how to 

perform the one-legged stand test, the defendant told Trooper 

Murray to be more realistic and "that was something that normal 

people really can't do." The defendant then performed that FST, 

but was becoming "increasingly more agitated." As to the 

alphabet test, the defendant performed it with slurred speech. 

Lastly, Trooper Murray asked the defendant to count backwards 

from fifty-seven to forty-two. The defendant counted backwards 

from fifty-seven to forty-six, paused for a moment, and 

continued to count down to forty-two.

For about ten minutes, the defendant and Trooper Murray 

waited for another trooper to arrive. During this time, the 

defendant became more agitated and questioned why Trooper Murray 

stopped him in the first place, why he had do FSTs, and what 

proof Trooper Murray had to conduct the FSTs. The defendant 

spoke over Trooper Murray and interrupted when Trooper Murray 
4

attempted to answer. During those ten minutes, the defendant's 

demeanor shifted back and forth from "very aggressive" to 

"apologetic." Trooper Murray formed the opinion that the 

defendant was intoxicated and decided to place the defendant 

under arrest.

When Trooper Murray attempted to place the defendant in 

handcuffs, the defendant stiffened his body and put his hands 

down by his sides. After a brief struggle, the trooper placed 

the defendant in the rear compartment of a cruiser. During the 

booking process, the defendant shouted over Trooper Murray 

numerous times and did not give direct answers to questions.

The jury convicted the defendant of OUI. This appeal 

followed.

Discussion. 1. Prosecutor's closing argument. The 

defendant argues that the prosecutor's closing argument was 

improper in two respects, and that the cumulative effect of 

those errors required the judge to grant defense counsel's 

request for a mistrial. Because the defendant timely objected 

to the prosecutor's closing argument, "we evaluate whether the 

defendant was prejudiced thereby, considering the remarks in the 

context of the entire argument, the trial testimony, and the 

judge's instructions to the jury." Commonwealth v. Beaudry, 445 

Mass. 577, 584 (2005). In doing so, we first determine whether 

there was an error, and if so, whether that error was 
5

prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 

(1994). 

First, the defendant contends that the prosecutor injected 

"bad character" information of "uncharged conduct" not in 

evidence when she argued that the defendant "wasn't charged with 

resisting arrest." A prosecutor may use closing argument to 

comment on the trial tactics of the defense and to respond to 

the defendant's closing argument. See Commonwealth v. Chambers, 

93 Mass. App. Ct. 806, 822 (2018); Commonwealth v. Fernandes, 

436 Mass. 671, 674 (2002) (prosecutor may use closing argument 

to respond to defense counsel's characterization of evidence). 

The prosecutor's reference to resisting arrest came in response 

to the defense closing, in which counsel emphasized that the 

defendant "provid[ed] the documents without argument or 

resistance," and "did not argue or resist the trooper," and the 

trooper's testimony that the defendant struggled while being 

arrested was not sufficient evidence to convict him of OUI. 

This was a proper response to defense counsel's characterization 

of the evidence and was not error. See Commonwealth v. Kozubal, 

488 Mass. 575, 591 (2021) (prosecutor's argument that 

"[d]efendant says that he wasn't her teacher" proper response to 

defense closing). To the extent that the prosecutor's comment 

could be interpreted to inform the jury of the existence of the 
6

crime of resisting arrest, the defendant was not prejudiced, as 

the defendant was not charged with or convicted of that crime. 

Second, the defendant contends that the prosecutor argued 

facts not in evidence and shifted the burden of proof when she 

argued, "So, where is [the odor of alcohol] coming from because 

the [d]efendant said he had nothing to drink. And, ladies and 

gentlemen, I would suggest to you why would someone say they had 

nothing to drink or why do people lie about how much they've had 

to drink? Usually it's because they've had too much to drink." 

The Commonwealth concedes that the prosecutor misstated the 

evidence when she erroneously claimed that there was evidence 

that the defendant said he had nothing to drink.

"Prosecutors must limit the scope of their closing 

arguments to facts in evidence and the fair inferences that may 

be drawn therefrom" (citation omitted). Commonwealth v. 

Valentin, 474 Mass. 301, 309 (2016). Here, the evidence was 

that the trooper asked the defendant whether he had been 

drinking, and that the defendant replied that he was "just 

trying to get his friend home." There was no testimony that the 

defendant denied drinking or that he stated he had "nothing to 

drink," as the prosecutor claimed in closing. We agree that the 

prosecutor misstated the evidence.

"Whether a misstatement of the evidence in a prosecutor's 

closing argument results in reversible error depends on 
7

consideration of four factors: '(1) whether the defendant 

seasonably objected; (2) whether the error was limited to 

collateral issues or went to the heart of the case; (3) what 

specific or general instructions the judge gave the jury which 

may have mitigated the mistake; and (4) whether the error, in 

the circumstances, possibly made a difference in the jury's 

conclusions.'" Commonwealth v. West, 487 Mass. 794, 809 (2021), 

quoting Commonwealth v. Reyes, 483 Mass. 65, 77 (2019).

The prosecutor's inaccurate statement in closing that the 

defendant had said he had "nothing to drink," although improper, 

was not unduly prejudicial, as it might have been had the 

prosecutor argued without basis in the evidence that the 

defendant admitted drinking alcohol. Further, after defense 

counsel objected, the judge instructed the jury that closing 

arguments were not evidence, the jury's memory of the testimony 

controlled, and the Commonwealth bore the burden of proof. The 

Commonwealth presented a strong case, and while there was no 

evidence that the defendant told the trooper that he had 

"nothing to drink," he did evade the trooper's question. Cf. 

Commonwealth v. Collins, 11 Mass. App. Ct. 583, 586 (1981) 

(defendant's evasive statements regarding access to automobile 

trunk evidenced constructive possession of firearm inside). We 

conclude that the prosecutor's misstatement of the evidence did 

not prejudice the defendant or shift the burden of proof.
8

Nor did the prosecutor improperly inject any personal 

opinion by suggesting to the jury that someone who denies 

drinking anything or who lies about how much they had to drink 

would usually do so "because they've had too much to drink." 

The prosecutor was not stating a personal opinion but merely 

asking the jury to draw an inference. 

2. Lack of jury instruction that trooper's opinion about 

field sobriety tests was not expert opinion. The defendant 

argues that a substantial risk of a miscarriage of justice arose 

when the judge did not instruct the jury that the trooper's 

testimony about the defendant's performance on FSTs was lay and 

not expert opinion. In doing so, the defendant relies on a 

suggestion in the dissenting opinion in Commonwealth v. 

Gallagher, 91 Mass. App. Ct. 385, 399 (2017) (Agnes, J., 

dissenting).

At trial, when the prosecutor asked if the trooper had 

formed an opinion about the defendant's sobriety, the trooper 

replied that he "believed [the defendant] was intoxicated." 

That was proper. See Commonwealth v. Jones, 464 Mass. 16, 17 

n.1 (2012). But the trooper did not opine on whether the 

defendant failed any of the FSTs. Rather, he simply described 

what he saw the defendant do. From the trooper's testimony, 

defense counsel argued in closing that the defendant "passed" 

some of the FSTs.
9

The defendant did not ask the judge to instruct the jury 

that the trooper's testimony about the FSTs was lay and not 

expert opinion. If a police officer's testimony includes an 

opinion about FSTs, and it may not be clear to a jury whether 

that opinion qualifies as that of an expert, the judge may 

instruct the jury that the testimony is lay opinion. See 

Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 324 (2023). See 

also Criminal Model Jury Instructions for Use in the District 

Court, 5.310 supplemental instruction 3 (2023). However, "a 

judge need not give such an instruction where it was not 

requested." Commonwealth v. Waite, 102 Mass. App. Ct. 578, 582 

(2023). 

The defendant here did not request such an instruction, and 

so there was no error in not giving it, and no substantial risk 

of a miscarriage of justice arose.

Judgment affirmed.

By the Court (Sacks, Grant & 

Smyth, JJ.2),

Clerk

Entered: August 10, 2023.

2 The panelists are listed in order of seniority.