Massachusetts DUI Trials: Closing Arguments

Commonwealth v. Broomhead, 67 Mass. App. Ct. 547 (2006)

Kevin S. Broomhead was convicted of 2nd offense DUI. He appealed based on the prosecutor's improper closing arguments. 
Middleborough Police Officer Angelo Lapanna stopped Broomhead when he saw Broomhead's vehicle drift across the fog line and cross the center line into the opposing travel lane on Route 28 in Middleborough. He detected an odor of alcohol and other indicators of alcohol intoxication. Broomhead admitted to have been consuming beer. After he failed the heel to toe, one legged stand, and alphabet field sobriety tests,  he was arrested for drunk driving. 

In his testimony, Broomhead made reference to having picked up his brother and another individual, who were allegedly present during his performance of field sobriety tests and arrests. However, he failed to call these witnesses at trial. In his closing argument, the prosecutor made reference to absence and lack of testimony regarding these witnesses, in an attempt to discredit Broomhead. He made these comments without obtaining the trial judge's permission in advance. Such "missing witness" arguments should not be made without first obtaining the Judge's express authorization. The guilty verdict was set aside and the judgment against Broomhead was reversed.

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