Opinion
13-P-1702
11-05-2014
COMMONWEALTH v. COREY P. MCFADDEN.
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
Having been found guilty by a District Court jury of operating a motor vehicle while under the influence of intoxicating liquor, the defendant now appeals. We affirm.
In order to sustain a conviction under G. L. c. 90, § 24(1)(a)(1), the Commonwealth must prove that the defendant (1) operated a vehicle; (2) on a public way; (3) while under the influence of alcohol. Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). The defendant challenges only the sufficiency of the evidence whether he was the operator. We look at whether a rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth and drawing reasonable inferences therefrom, could find that each element of the crime was proved beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
The defendant stipulated at trial that Route 495 is a public way and that he was administered a breath test that result in a reading of .13.
"[A] person operates a motor vehicle within the meaning of G. L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle." See Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 646 (2011) (citation omitted). In the instant case, there was no direct evidence of who the driver was. However, a conviction may rest entirely on circumstantial evidence. See Commonwealth v. Woods, 414 Mass. 343, 354 (1993). There was such evidence here. The trooper found the vehicle in the travel lane of a busy highway. It was inoperable because it was out of gas. This permits the inference that it had been driven recently. See Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006). Other circumstantial evidence adduced at trial included the following: the vehicle belonged to the defendant; he admitted that he had driven the car earlier in the evening to go to a bar with two friends (one of whom was a man and the other a woman); the defendant was in the driver's seat with the keys in the ignition when the trooper arrived; the defendant's cellular telephone was in the center console located next to the driver's seat; the driver's seat was in a position consistent with the defendant's height (the two others were shorter); a woman's purse was on the car's backseat; the defendant immediately returned to the driver's seat when the officer told the group the car needed to be moved, whereas his female companion returned to the back seat and the other man went to the front passenger seat. This evidence is sufficient to permit a finding beyond a reasonable doubt that it was the defendant who had operated the vehicle. It is reasonable to infer that since the car had recently been driven, and the defendant was in the driver's seat with the keys in the ignition, he was the one who had been driving prior to it running out of gas.
The defendant cites Commonwealth v. Leonard, 401 Mass. 470 (1988), to support reversal. In Leonard, the conviction was based solely on the defendant's extrajudicial confession. When police arrived, the defendant and his wife were both in the driver's seat, fighting over the keys. Here, the defendant did not confess, but the defendant was the only person found in the driver's seat with the keys in the ignition. This allows the inference that he was the one who had operated the vehicle prior to it running out of gas.
Next, although no extrajudicial statements were actually elicited at trial, the defendant argues that when Trooper Duprey testified that he spoke with the two passengers in the car before asking the defendant to perform field sobriety tests, the jury were implicitly exposed to inculpatory statements in violation of his confrontation rights. We disagree. For one thing, the trooper testified that he had decided to test the defendant prior to his conversation with the other two individuals. For another, explanatory statements that do not repeat the substance of out-of-court conversations pose no question of a hearsay violation, and by extension, pose no issue pertaining to confrontation rights. See Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 439 (2006).
The trooper's testimony was limited to recounting the actions he took during the investigation and did not raise any implication about the substance of the conversations. Contrast Commonwealth v. Rosario, 430 Mass. 505, 509-511 (1999) (testimony regarding a victim's statements that focused the police on the defendant were not at issue and thus inadmissible); Commonwealth v. Tanner, supra at 438-440 (testimony by an officer was a violation of the defendant's confrontation rights when the officer testified that he asked a third person where that third person got drugs and then immediately arrested the defendant). The trooper's testimony describing the steps he took during his investigation pertains to relevant police action.
As noted, the trooper here had decided to test the defendant prior to his conversation with the other two individuals. Therefore, his statements do not have the same implication as the statements in Tanner.
Insofar as a statement made by the prosecutor during closing argument could be interpreted as inviting the jury to draw substantive inferences from the conversation with the passengers, such a statement was better left unsaid. Even if error, it did not create a substantial risk of a miscarriage of justice.
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Finally, for the first time on appeal the defendant argues that the jury were exposed to improper opinion testimony. He characterizes as improper Trooper Duprey's testimony that he "formed the opinion that [the defendant's] ability to safely operate a motor vehicle had been impaired by his consumption of alcoholic beverages." Because there was no objection, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 260 (2011). "A substantial risk of a miscarriage of justice exists when we have 'a serious doubt whether the result of the trial might have been different had the error not been made.'" Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). There was none. To be sure, while a lay witness may offer his opinion regarding a defendant's level of sobriety or intoxication, it was error for the trooper to opine that the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (issued after the trial in issue here). However, the defendant stipulated that he registered a .13 reading on the breath test, and testified that he was drunk and failed a series of sobriety tests. The sole issue for the jury was who operated the car and not whether the defendant's ability to drive was impaired. Given the strength of the other evidence, as well as the judge's charge to the jury that they were the "sole and exclusive judges of the facts," there was no substantial risk of a miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 605-607 (2013).
Judgment affirmed.
By the Court (Rapoza, C.J., Katzmann & Wolohojian, JJ.),
Clerk Entered: November 5, 2014.