Opinion
16-P-219
01-18-2017
COMMONWEALTH v. Beatriz ACEVEDO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Beatriz Acevedo, was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI). On appeal, she claims that (1) the judge should have either dismissed her complaint or allowed her motion for a new trial based on ineffective assistance of counsel because the officers failed to issue her a timely citation in compliance with G. L. c. 90C, § 2 ; and (2) an officer's improper opinion testimony created prejudicial error. We affirm.
Background . On September 17, 2014, around 2:30 A.M. , Javier Aispuro, along with two passengers, was driving to work in his Nissan Maxima. While stopped at a red light at the intersection of Bennington Street and Neptune Road in East Boston, his car was struck by another motor vehicle. "It was a big hit" that moved his car, which "was totaled." After the impact, Aispuro spoke to the driver of the other vehicle, later identified as the defendant. The defendant stated, "Oh, how can we fix this?" Aispuro called the police, who arrived approximately two minutes later. When Aispuro spoke with the defendant, he smelled alcohol on her breath.
Sergeant Cutroneo of the Boston police department responded to the accident scene and observed a vehicle that had been "rear-ended" by a second vehicle. The defendant was sitting in the driver's seat of the second vehicle. Sergeant Cutroneo "immediately saw that she had bright red, bloodshot eyes, kind of had her head hung down a little bit, was moving really kind of slow when [he] was talking to her, just not really addressing [him] or looking [him] in the eyes." She "seemed pretty confused." Sergeant Cutroneo asked her if she had been drinking, and she said "no." He asked again, "Are you sure, because I could smell it." He also noticed that she "was slurring her speech." The police called for an ambulance and had the defendant transported to the hospital. Due to her facial injuries and other safety concerns, Sergeant Cutroneo did not ask the defendant to perform field sobriety tests and did not arrest her. A passenger in the rear of Aispuro's vehicle also "had to go straight to the hospital" as a result of the crash.
The defendant was charged with OUI. She did not file a motion to dismiss, and did not raise any late citation issue before or at trial. The defense at trial was that the Commonwealth could not sustain its burden of proving beyond a reasonable doubt that the defendant was under the influence of alcohol.
Discussion . 1. Late citation . The defendant contends that officers improperly mailed the citation to her, such that she did not receive notice until October 1, 2014, at the earliest. Thus, she argues, the officers' failure to issue a citation at the scene precluded her from procuring blood tests and presenting a defense at trial, and requires dismissal of the complaint. "Because the defendant did not file a motion to dismiss on this ground, the claim is waived." Commonwealth v. Hrycenko , 61 Mass. App. Ct. 378, 382 (2004). See Mass.R.Crim.P. 13(c)(1), as appearing in 442 Mass. 1516 (2004) ("All defenses available to a defendant by plea, other than not guilty, shall only be raised by a motion to dismiss or by a motion to grant appropriate relief").
The defendant also contends that her trial counsel rendered ineffective assistance by failing to file a motion to dismiss. We disagree. General Laws c. 90C, § 2, as appearing in St. 1985, c. 794, § 3, commonly known as the "no-fix" law, provides in relevant part:
"[A]ny police officer assigned to traffic enforcement duty shall ... record the occurrence of automobile law violations upon a citation, filling out the citation and each copy thereof as soon as possible.... A failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure " (emphasis supplied).
Thus, the statute mandates that citations be delivered to an alleged offender at the time and place of the violation, subject to three exceptions. Had the defendant timely raised a late citation motion or defense, the third exception would have been at issue here. Within this exception, our case law has recognized that in certain circumstances, notice is implicit and the requirements of the statute are flexibly applied. See, e.g., Commonwealth v. Pappas , 384 Mass. 428, 431 (1981) (notice requirement "has little relevance when applied to more serious crimes"); Commonwealth v. Perry , 15 Mass. App. Ct. 281, 284 (1983) ("flaws of detail can be overlooked" as long as goals of statute not thwarted); Commonwealth v. Nadworny , 30 Mass. App. Ct. 912, 913 (1991), citing Pappas , supra at 431-432, and Commonwealth v. Babb , 389 Mass. 275, 283-284 (1983) ("[W]here an apparent vehicular violation causes injury that is seen to be serious, the violator is implicitly on notice that he or she is at risk of being charged").
The defendant contends that in the present case "the minor fender-bender was not so serious as to implicitly put [the defendant] on notice of pending criminal charges." However, our common law has recognized that accidents requiring hospitalization, in conjunction with other factors, may justify brief delays in issuing citations. See, e.g., Pappas , 384 Mass. at 431-432 (distinguishing "normally fleeting and nonserious nature of most traffic infractions" from "more serious crimes" where "[i]t is inconceivable that [a] defendant would be unaware of the seriousness of a situation in which his vehicle had crossed the center line of a public street and struck a pedestrian"); Commonwealth v. Russo , 30 Mass. App. Ct. 923, 924 (1991) (delayed delivery or mailing of citation may be justified in view of injuries to accident victims and "sufficiently chaotic" accident scene); Commonwealth v. Moulton , 56 Mass. App. Ct. 682, 685 (2002) (given seriousness of accident, defendant's removal from car via backboard, and hospitalization, it "should have been obvious to the defendant" that citation was likely to follow).
The present case involved more than a transient traffic offense of a "fleeting and nonserious nature." Pappas , supra . First, the accident caused the passenger in Aispuro's vehicle to be immediately hospitalized. Second, the accident caused the defendant to be transported to the hospital. Third, Aispuro's vehicle was "totaled" because of the accident. Finally, in response to Sergeant Cutroneo's question, the defendant denied consuming alcohol. This prompted Sergeant Cutroneo to ask, "Are you sure, because I could smell it." Sergeant Cutroneo's repeated questions regarding the consumption of alcohol, viewed in conjunction with the seriousness of the accident, and the injuries to the passenger in Aispuro's vehicle and the defendant, provided implicit notice to the defendant that charges could be forthcoming. Accordingly, trial counsel was not ineffective for failing to pursue a motion with no reasonable chance of success. See Hrycenko , 61 Mass. App. Ct. at 382 n.4. For the reasons stated herein, we further conclude that no substantial issue was raised by the motion for a new trial and supporting affidavits. Thus, the judge did not abuse her discretion in denying the motion for a new trial without an evidentiary hearing.
At the accident scene, the defendant responded to Sergeant Cutroneo's question as follows: "I'm not going to say anything." Before trial, the judge allowed the defendant's motion in limine to preclude the Commonwealth from introducing the defendant's statement on grounds that it constituted "an invocation of her right to remain silent." Although the statement was inadmissible at trial, the judge could have considered it in the context of a motion to dismiss brought pursuant to G. L. c. 90C, § 2, as evidence that the defendant was aware of the seriousness of the accident; it therefore could be viewed as further evidence of implicit notice that criminal charges may have been forthcoming.
Trial counsel's affidavit submitted in connection with the defendant's motion for a new trial is consistent with the judge's conclusion. The affidavit states, in relevant part, that based on his "understanding of the law at the time, [his] review of the discovery, including copies of the citation and police report, [his] investigation of the facts of the case, discussions ... and other materials," he did not believe that there was a viable motion to dismiss in this case pursuant to G. L. c. 90C, § 2.
2. Officer's opinion testimony . On redirect examination, Sergeant Cutroneo testified to his observations that contributed to his opinion that the defendant was under the influence of alcohol, including the defendant's glassy eyes, slurred speech, the odor of alcohol on her breath, and the nature of the crash. The defendant contends that the judge erred in allowing this testimony because it constituted impermissible opinion testimony. The claim is unavailing.
First, the defendant's general objection to one specific question did not preserve the defendant's appellate rights with regard to the entire line of questions, which she now claims were improper. See generally Boston Edison Co . v. Forbes , 4 Mass. App. Ct. 787, 787-788 (1976) (where testimony complained of on appeal was in response to questions not objected to individually but subject only to general exceptions, nothing was before court for review). Thus, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Smith , 449 Mass. 12, 17 (2007).
Furthermore, "[i]n a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication." Commonwealth v. Jones , 464 Mass. 16, 17 n.1 (2012). Here, Sergeant Cutroneo did not opine as to the defendant's ability to drive. See Commonwealth v. Saulnier , 84 Mass. App. Ct. 603, 605 (2013). Rather, he testified to his observations of the defendant at the accident scene, which were the basis for his admissible opinion that the defendant appeared to be intoxicated. See ibid . See also Commonwealth v. Sudderth , 37 Mass. App. Ct. 317, 321 (1994), citing Commonwealth v. Atencio , 12 Mass. App. Ct. 747, 750-751 (1981) ("The opinion testimony of police who observed the defendant may also be taken into account"). There was no error.
Judgment affirmed .
Order denying motion for new trial affirmed .