Opinion
10-P-1991
11-01-2011
COMMONWEALTH v. DAVID G. SHAKER.
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
The defendant was convicted of operating under the influence of intoxicating liquor, after a jury waived trial, on alternative theories of (1) a per se violation by reason of a blood alcohol measurement of .08 percent or greater, and (2) impaired operation established by the percipient testimony of a police officer. See G. L. c. 90, § 24(1)(a)(1). He raises three issues in this appeal: (1) the denial of his motion to suppress; (2) the denial of his motion to dismiss based on the continuance of a trial date; and (3) the improper admission at trial of certain evidence. We affirm.
1. Motion to suppress. The pivotal question is whether Marion Police Officer Christopher Smith had reasonable grounds to suspect the defendant had violated the law when he stopped the defendant's vehicle on Wareham Road in Marion at approximately 1:30 A. M. on April 12, 2009. The Commonwealth's case, which the motion judge implicitly credited, was that Officer Smith reversed direction and began to follow the vehicle operated by the defendant although he was uncertain he had seen a motor vehicle violation. This type of police surveillance, without more, does not constitute a seizure under art. 14 of the Declaration of Rights. See, e.g., Commonwealth v. Watson, 430 Mass. 725, 731 (2000). When officer Smith observed the defendant's vehicle drift over the broken lines dividing the travel lane and the passing lane, on two separate occasions, he was justified in stopping it. 'Where the police have observed a traffic violation, they are warranted in stopping a vehicle.' Commonwealth v. Robles, 48 Mass. App. Ct. 490, 493 (2000), quoting from Commonwealth v. Santana, 420 Mass. 205, 207 (1995). The investigatory steps taken by Officer Smith following the stop, which culminated in the defendant's arrest, did not exceed the scope of his authority. See Commonwealth v. Silva, 366 Mass. 402, 405 (1974).
The motion judge did not make subsidiary findings of fact in denying the motion. The judge's endorsement on the margin of the defendant's motion reads as follows: 'After hearing and upon consideration of the credible evidence, defendant's motion is denied.' The better practice is for the motion judge to make detailed, subsidiary findings, especially when, as in this case, the testimony is in conflict. See Commonwealth v. Perez, 62 Mass. App. Ct. 912 (2004). '[T]he absence of findings by the trial judge handicaps the process of review and invites a remand.' Commonwealth v. Mattias, 8 Mass. App. Ct. 786, 788 (1979). However, here it is appropriate to apply the rule that '[i]n the absence of subsidiary findings on the issue of credibility, we assume that the judge's determination was adverse to the losing party (in this case the defendant).' Commonwealth v. Quigley, 391 Mass. 461, 463 (1984). It is evident from the record that the motion judge credited officer Smith's account of the events. See Commonwealth v. Williams, 439 Mass. 678, 686 (2003). See also Commonwealth v. Lanoue, 392 Mass. 583, 588 (1984), S. C. 400 Mass. 1007 (1987) and 409 Mass. 1 (1990).
'A marked lanes violation occurs when a driver does not 'so drive that the vehicle shall be entirely within a single lane." Commonwealth v. Ortolani, 79 Mass. App. Ct. 1130 n.3 (2011), quoting from G. L. c. 89, § 4A, inserted by St. 1952, c. 461, § 1.
2. Continuances and denial of the defendant's motion to dismiss. Originally, this case was set for trial on November 19, 2009, and marked 'no further continuances.' On November 13, 2009, the Commonwealth informed defense counsel that it intended to seek a continuance of the trial date due to scheduling conflicts with the police officers. The defendant, who was not in custody, did not assent to the motion, but did put his witnesses on stand-by. The Commonwealth filed its motion to continue on November 18th, and informed the court, at that time, that it had contacted defense counsel. The motion was allowed the same day, and the case was continued for trial to January 28, 2010.
While the Commonwealth left messages for defense counsel at his office on November 18 following the allowance of its motion, counsel did not learn of the postponement until he and his client appeared in court the following day.
On January 27, 2010, the Commonwealth again contacted defense counsel's office to inform counsel that it intended to ask for another continuance because one of its witnesses had to bring his child to Boston for an important medical appointment on the following day, January 28th. The Commonwealth then filed a motion to advance and continue the case which was opposed by the defendant who at that time filed his motion to dismiss. The court conducted a thorough hearing on the defendant's motion to dismiss during which the judge inquired into the effect of the continuance on the defendant, and learned that the delay in the trial would not adversely affect him. No evidence of prejudice to the defendant was offered. The court granted a continuance to April 13, 2010, and indicated that absent 'magnificently good cause shown,' the case would be dismissed if the Commonwealth was not ready on the next date.
The continuance of a trial date is a decision that is committed to the sound discretion of the trial judge who must consider the reason for the continuance, the potential prejudice to the opposing party, and the reasonable needs of counsel and the witnesses. See, e.g., Commonwealth v. Super, 431 Mass. 492, 496-497 (2000). This is no less so when a case is marked 'no further continuances,' because 'the unexpected can, and often does, happen.' Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 202 (2003). The defendant has not demonstrated that there was an abuse of discretion in granting either of the two continuances.
3. Evidentiary issues. a. Lay witness opinion testimony. Testimony by the arresting officer that he observed a vehicle in the passing lane 'attempting to pass' the defendant's vehicle, as the defendant's vehicle straddled the line dividing the travel lane from the passing lane, was permissible as a 'summary description' of the events. Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961). Accord, Mass. G. Evid. § 701 (2011).
b. Certification of breath testing equipment. It was proper to allow Officer Smith, who administered a breath test to the defendant, to testify that the machine used to administer the test and the simulator device were properly certified at the time the test was administered. Moreover, certification documentation for the machine and the simulator were admitted as exhibits without objection during the testimony of Sergeant Nighelli. This satisfied the requirement of 501 Code Mass. Regs. § 2.51 (2010). See Commonwealth v. Zeininger, 459 Mass. 775, 784 (2011).
The trial judge was entitled to credit the officer's testimony that the town of Marion's breath testing instrument would not permit him to administer a test after the expiration date of its certification.
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Judgment affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),