The Massachusetts Appeals Court today upheld Michael Ahern's 18-month sentence for crashing his pickup into Doan Bui's bicycle on Morrissey Boulevard in 2012, sending the man, returning home from a fishing trip, 150 feet into the air and killing him.
A Suffolk Superior Court judge had ordered the sentence, which came after a 2014 trial, overturned, ruling a Suffolk County prosecutor had improperly used Ahern's attorney's decision not to call a particular witness as part of his closing argument that Ahern was guilty felony motor vehicle homicide of the death of Bui, 63.
But in its ruling today, the appeals court overturned the reversal, saying the prosecutor did nothing wrong and noting that Ahern's trial attorney, an "experienced defense counsel" did not object at the time.
In its summary of the evidence, the court said that Ahern, owner of Dorchester Lower Mills's Sweet Life Bakery and Cafe, had been drinking the afternoon and night of Sept. 13, 2012, starting with an Amstel Light at one restaurant and ending with him sharing champagne at Slate Bar & Grill on High Street with the manager there, who thought he was one of the co-owners, only it turned out he wasn't.
Videotape footage (video) from the establishment showed the defendant switching the glasses, taking Smith's [the manager's] partially full glass, and drinking what was left in the glass. He then appeared to finish drinking what was in the bottle of champagne by tipping it upwards and emptying its contents. At around 11 P.M., Smith went back to the bar area of the restaurant, and the defendant moved from his table to the bar. Smith then opened a second bottle of champagne and poured a glass for the defendant.
Around midnight, Ahern left the bar. The narrative then continues at 12:15 a.m., about four miles to the south, on Morrissey Boulevard near Malibu Beach:
Shortly after 12:15 A.M., Boston Police Officer Marilynne Gaffey noticed the defendant's pickup truck stopped on the side of Morrissey Boulevard in the Dorchester section of Boston. She also saw the victim, Doan Bui, and his bicycle lying in the road. She stopped, called for backup and medical assistance, and went to help the victim, who was nonresponsive. He was dressed in a black hooded sweatshirt. Emergency medical technicians (EMTs) Matthew King and Christopher Mancuso arrived soon after Gaffey and determined that the victim was dead. ...
A State Police collision analyst later determined that the defendant's truck had hit Bui from the rear, when Bui was traveling on a bicycle in a straight line on the right hand side of the road. At the time, the defendant was traveling at least fifty miles per hour; the collision knocked the victim's body 154 feet from the point of impact. The speed limit in that portion of the road was thirty miles per hour.
The EMTs who helped and transported him - one of whom had spent five years working as a bartender - the state troopers who arrived on scene and doctors at the Boston Medical Center who treated him, all concluded he was heavily intoxicated, base in part by the strong odor of alcohol coming from him, and from the ambulance after EMTs opened its doors at the hospital ambulance bay.
In his opening statement, the court continues, Ahern's attorney promised the jury testimony from one of Slate's owners, who was a business partner with Ahern, that the two had spent much of the evening - from 6 until 10 p.m. - in a community meeting, at which no alcohol was served.
In fact, the defense never called Feeney to testify, because counsel learned midway through trial that the defendant was not one of the owners of Slate; as a result, it was counsel's belief that, if Feeney testified, that information would discredit the defendant. As a result, the jury never heard any evidence regarding the defendant's activities between approximately 6 P.M. and 9:48 P.M. on the night in question.
And this is where Ahern's appeal began. The prosecutor in the case reminded the jury of the promise to have the business partner testify - and the fact that he did not:
Last week [defense counsel] stood up in front of you and told you you'd receive some evidence about where Michael Ahern was between  P.M. and [9:48] P.M. You didn't receive any of that evidence. The only thing you heard is that he dropped off Mary Pierce after they were at a bar sometime around [5:45] or  P.M.
You know at  P.M. he was at Sel Delaterre and he was drinking and the next time he pops up on the grid, it's [9:48] P.M. and he's at a bar and he's drinking. That's all you know about his whereabouts. Apply your common sense. When you do that, when you're diligent and you go through the video, you're going to notice a couple of things and I'm going to ask you very specifically how to do this.
Pull this television up to the table. Sit around it, all of you. Take out a piece of paper, use notes, watch each video and count what goes up to his mouth, count what touches his lips.
The prosecutor then went slowly through the video evidence, pointing to each occasion where the defendant was drinking or appeared to be drinking; he encouraged the jurors to do the same thing during deliberations. There was no objection to any portion of the prosecutor's closing argument. The jury thereafter returned a verdict of guilty on the charge of homicide by a motor vehicle while under the influence of an intoxicating substance.
Ahern's new attorney argued Ahern's previous attorney should have objected to this, so provided "ineffective counsel" and that this argument was "improper burden shifting," by getting the jury to consider something that happened during the trial as proof of Ahern's guilt, rather than considering the facts of the case.
The appeals court ruled, nope. In addition to noting that Ahern's trial lawyer was "experienced," it said Massachusetts case law lets prosecutors "properly comment on the trial tactics of defence and and on evidence developed or promised by the defence" in their closing statements.
Here, defense counsel promised in his opening statement that Feeney would testify as to the defendant's whereabouts for a substantial portion of the evening; Feeney was never called. As a result, the prosecutor was entitled to note in his closing argument the absence of that evidence from the record.
The justices continued:
Furthermore, as the judge emphasized in his findings, the promised witness would not have testified to a time that was particularly relevant to the crime charged. The accident occurred at midnight, and the witness left the defendant before he walked into Slate. And, after the challenged comment, the prosecutor's argument examined the defendant's behavior at Slate in detail.