Opinion
10-P-2035
11-14-2011
COMMONWEALTH v. THOMAS P. KEENAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in District Court, the defendant was convicted of: 1) operating a motor vehicle under the influence of alcohol, G. L. c. 90, § 24(1)(a)(1); and 2) negligent operation of a motor vehicle in a manner that might endanger the public, G. L. c. 90, § 24(2)(a). We affirm.
Sufficiency of the evidence. The defendant challenges the sufficiency of the Commonwealth's proof that he had driven his car on a 'way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.' G. L. c. 90, § 24(1)(a)(1), amended by St. 2003, c. 28, § 1. In addressing this question, we consider the evidence in the light most favorable to the Commonwealth and draw all reasonable inferences therefrom. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The two charges at issue relate to a one-car accident that occurred in a residential area of Holyoke. It is uncontested that the defendant's car left the road and drove onto a corner house lot where it ended up on top of 'some shrubs and bushes.' The responding police officer indicated that the accident was at the intersection of MacKenzie Avenue and another street whose name he could not identify. Given that the street address of the corner lot was 4 Anderson Avenue, the jury could have inferred that the house lot lay at the intersection of Anderson Avenue and MacKenzie Avenue.
Two eyewitnesses, friends who were having a conversation with each other while on MacKenzie Avenue, heard screeching and turned to see the defendant's car drive off the road and into the shrubbery. One of them testified that the defendant's car drove onto the house lot after it 'went speeding around the corner.' From this, the jury could reasonably have inferred that in going 'around the corner,' the defendant had one way or another driven on MacKenzie Avenue, which, as the defendant concedes, the Commonwealth demonstrated was a public way.
One of the friends recalled that they were inside her car at the time, while the other recalled that they were standing outside of the car.
To be sure, the other eyewitness testified that the defendant was not driving on MacKenzie Avenue but instead was on the 'street coming down towards MacKenzie,' which he identified as 'maybe Linden or --' (with the dashes apparently indicating that the witness did not complete his answer before defense counsel moved on to the next question). However, the jury were not required to credit this particular witness's recollection over that of his friend. Moreover, even if the jury did accept it, they readily could have inferred that the defendant crossed MacKenzie Avenue before driving into the shrubbery. In addition, the Commonwealth demonstrated that Linden Street was a public way.
Moreover, we note that while the proof that the defendant had driven on a public way was indeed somewhat impressionistic, the picture that the evidence painted was of a residential neighborhood of intersecting streets, without any hint that Anderson Avenue was of a wholly different character than the others, or that there were any barriers to the public's accessing it. See Commonwealth v. Hart, 26 Mass. App. Ct. 235, 237-238 (1988) (what matters is the status of the street, not whether the driver had actual permission to access it; the key inquiry is whether the 'physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel'). Accord Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 832-833 (2010). The Commonwealth provided proof that three of the streets in the immediate vicinity of the accident site (including the very street that intersected with Anderson Avenue at the accident site) were public ways, and the jury reasonably could have inferred that Anderson Avenue was a public way as well.
We note that photographs of the accident scene were allowed in evidence. Neither party included copies of those photographs in the appellate record, so we do not know whether the photographs alone demonstrated that MacKenzie Avenue and Anderson Avenue each provided the driving public with unimpeded access to the other. Certainly, nothing in the trial transcript suggests anything out of the ordinary regarding the intersection of the two streets.
In sum, although the Commonwealth's 'public way' evidence would hardly serve as a model for future driving under the influence prosecutions, it was sufficient. The judge therefore properly denied the motion for a required finding of not guilty at the conclusion of the Commonwealth's case. The defendant's witnesses provided further substantiation that he was driving on a public way. For example, the defendant himself testified that he believed he had been driving on Linden Street, which the Commonwealth showed was a public way.
In particular, as the Commonwealth candidly acknowledged at oral argument, it would have been helpful to the jury (and a reviewing court) for the Commonwealth to have introduced a map or other evidence establishing the spatial relationship between the various streets in question.
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Jury instructions. In the middle of an otherwise proper charge, the judge stated that 'the defendant [sic] must prove beyond a reasonable doubt that the defendant operated a motor vehicle on a public way.' Viewed in context, this was obviously a 'slip of the tongue,' and we are confident that the jury viewed it that way. See Commonwealth v. Grant, 418 Mass. 76, 85 (1994) ('A reasonable juror could not have misunderstood or have been misled by this slip of the tongue').
Ineffective assistance. The defendant argues that his trial counsel was ineffective by failing to cross-examine the eyewitnesses regarding inconsistencies between their trial testimony and what they allegedly had told the police at the time of the accident, as memorialized in police reports. A defendant can prevail on a claim of ineffective assistance in a direct appeal only 'when the factual basis of the claim appears indisputably on the trial record.' Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). The police reports on which the defendant bases his claim are not in the record, so his claim necessarily fails.
Judgments affirmed.
By the Court (Mills, Milkey, & Carhart, JJ.),