Opinion
21-P-817
10-07-2022
COMMONWEALTH v. KAWEESI MARVIN.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI). On appeal, the defendant argues that the evidence of his intoxication was insufficient to support that conviction. We agree and vacate the defendant's conviction.
As part of the complaint charging him with OUI liquor, the defendant was charged with negligent operation of a motor vehicle and a civil infraction of driving the wrong way on a State highway. After conviction on the OUI liquor charge, the defendant tendered a plea on the negligent operation count and the judge continued the matter without a finding. The judge also found the defendant responsible for the civil infraction.
Facts.
In reviewing the sufficiency of the evidence, we look to see "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Merola, 405 Mass. 529, 533 (1989), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). We summarize the facts with this standard in mind.
On appeal, the defendant does not challenge the sufficiency of the evidence of the elements of operation or public way. See G. L. c. 90, § 24 (1) (a) (1) .
In the early morning hours of October 14, 2018, Lauren Bemister and Stephen Magro traveled in Bemister's Jeep on Interstate Highway 95 North in the left-most lane. Magro, who was driving, testified:
"At approximately 1:45 [A.M.], we turned a bend, and instantly there were headlights in front of us. . . . I could not turn left, so I . . . turned right as quickly as I could. The impact came on my side, it avoided a head-on collision, and we spun around five, six, seven, eight times before the car came to a complete stop."
The front left side of Bemister's vehicle was crushed and the front left tire was blown off. Neither individual interacted with the other driver, but Magro testified that he saw the other vehicle and it looked "very bad."
State Trooper Nicholas Keating responded to the crash at approximately 1:45 A.M. He had not witnessed the accident. Upon arriving at the scene, Keating saw a sport utility vehicle (SUV) that had come to rest between two concrete median barriers. The SUV had sustained heavy front-end damage on the driver's side. He could not recall what direction it was pointing. Keating approached the vehicle and saw the defendant in the back seat; the defendant told him that he was the only person in the vehicle, that he was the operator, and that he was not injured.
While Keating checked on the other vehicle, the defendant was loaded into an ambulance. When Keating went to the ambulance to speak to the defendant, he observed for the first time a "strong odor" of "an alcoholic beverage" in the back of the ambulance. The defendant was unable to remember how the crash had happened.
At some time after 4 A.M., Keating spoke briefly to the defendant in his hospital room and issued him a criminal summons.
Discussion.
At trial, the Commonwealth presented three witnesses: Bemister, Magro, and Keating; no exhibits were introduced. The totality of the evidence supporting a finding that the defendant was intoxicated is (1) Keating's testimony that he smelled alcohol while speaking to the defendant in the ambulance, and (2) the fact of the accident. We agree with the defendant that this is insufficient. The cases cited by the Commonwealth to support the suggestion that those two factors alone are sufficient are readily distinguishable; each includes evidence of additional indicia of intoxication not present here.See Commonwealth v. Hilton, 398 Mass. 63, 68 (1986) (location of vehicle combined with odor of alcohol, six pack carton in vehicle, and defendant's glassy eyes, confusion, and inability to walk without stumbling); Commonwealth v. Manning, 41 Mass.App.Ct. 18, 21-22 (1996) (location of vehicle combined with odor of alcohol, defendant's admission to being drunk, and defendant's failure on multiple field sobriety tests); Commonwealth v. Russo, 30 Mass.App.Ct. 923, 926-927 (1991) (position of vehicles combined with testimony that defendant traveled in wrong lane, had odor of liquor, was combative, and had serum blood test showing .198 percent blood alcohol level). While the circumstances of the accident here could -- and did, in the officer's mind -- raise a suspicion that the defendant was intoxicated at the time of the crash, that inference is simply too speculative to support the defendant's conviction.
The defendant's medical records and blood alcohol evidence were excluded by the judge's rulings on the parties' motions in limine.
Further, Keating -- who is trained in identifying intoxicated drivers -- testified that he did not conclude in his report that the defendant was intoxicated, only that he had a suspicion.
None of the other witnesses were permitted to opine as to the cause of the accident.
Conclusion.
The judgment on count three of the complaint charging operation of a motor vehicle while under the influence of intoxicating liquor is vacated and the finding on that count is set aside.
So ordered.
The panelists are listed in order of seniority.