Opinion
No. 15–P–502.
11-10-2016
COMMONWEALTH v. Zachary W. MOORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a two-day jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), G.L. c. 90, § 24(1)(a)(1). On appeal, the defendant claims error in the denial of his motion to suppress the stop of his vehicle, the admission of a defense witness's prior convictions, and the denial of his motion for a required finding of not guilty. We discern no cause to disturb the judgment and affirm, addressing the defendant's claims in turn.
1. Motion to suppress. The defendant claims that the stop of his vehicle was unlawful because it was not supported by reasonable suspicion or justified by exigent circumstances. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Commonwealth v. Hurd, 29 Mass.App.Ct. 929, 930 (1990), quoting from Mincey v. Arizona, 437 U.S. 385, 392 (1978). Through a police dispatch, the officer learned that the defendant left the scene of a disturbance intoxicated and in a vehicle, and was given specific details for a vehicle registered to the defendant. Under the circumstances, the officer had reasonable grounds to believe that an emergency existed, due to the dangers of driving while intoxicated, and was justified in making an investigatory stop to determine if an intoxicated person was driving on a public way. See Commonwealth v. Davis, 63 Mass.App.Ct. 88, 89–90 (2005).
The dispatch to the officer was based on a telephone call from an unidentified person who knew the defendant, was familiar with his drinking habits, and was concerned that he was driving while intoxicated. The police are not required to ignore a report of an apparently drunk driver simply because the caller is anonymous. See Commonwealth v. Fortune, 57 Mass.App.Ct. 923, 924 (2003).
The defendant's reliance on our decision in Commonwealth v. Lubiejewski, 49 Mass.App.Ct. 212 (2000), is inapposite. In that case, an unidentified motorist reported a person driving on the wrong side of the road. Id. at 213. By the time the officer stopped the driver, he was no longer driving on the wrong side of the road or otherwise erratically. Ibid. “[I]n the absence of any specific information that the operator of the pickup truck was intoxicated or incapacitated in some manner, once the operator returned to the correct side of the road, the emergency had ended.” Id. at 215. The nature of the reported safety risk, coupled with the timing and location of the stop, distinguish Lubiejewski from the present case. Here, the caller was familiar with the defendant and knew he was intoxicated, the vehicle was observed within one mile of the reported disturbance, and the defendant was stopped two to three minutes after the dispatch. The emergency had not subsided by the time of the stop, because the defendant could not have become sober in the few minutes between the dispatch and the stop.
2. Prior convictions. The defendant claims that a defense witness's prior convictions were not relevant to his credibility and were extremely prejudicial. The trial judge did not err in admitting the evidence. Prior convictions used to impeach a witness's credibility “are not limited to crimes involving dishonesty or false statements,” Commonwealth v. Smith, 450 Mass. 395, 407 (2008), as “earlier disregard for the law may suggest ... similar disregard for the courtroom oath.” Commonwealth v. Roucoulet, 22 Mass.App.Ct. 603, 608 (1986). The prior convictions were not used substantively, and the judge gave an appropriate limiting instruction to guide the jury's consideration of the evidence for impeachment purposes.
3. Required finding. The trial judge did not err in denying the defendant's motion for a required finding of not guilty. There was sufficient evidence for a rational finder of fact to conclude that the defendant was guilty of OUI beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The crime of OUI under G.L. c. 90, § 24(1)(a ) (1), consists of three elements: “(1) operation of a vehicle, (2) on a public way, (3) under the influence of alcohol.” Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). The officer stopped the defendant while he was operating a motor vehicle on Main Street in Hanover. The remaining question was whether he was under the influence of intoxicating liquor. When the defendant was stopped, he admitted to drinking fifteen to sixteen beers before driving, had glassy, bloodshot eyes and slurred speech, swayed while standing, and failed three field sobriety tests. The testimony of the arresting officer regarding the defendant's appearance and behavior during the stop was sufficient to prove beyond a reasonable doubt that the defendant was operating a motor vehicle while intoxicated, as required by G.L. c. 90, § 24(1)(a ) (1).
The Commonwealth was not required to present proof of drunkenness, but rather that the defendant had a diminished capacity to operate a motor vehicle safely due to intoxication. Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 321 (1994). “The opinion testimony of the police officer who observed the defendant may also be taken into account.” Ibid.