Opinion
14-P-1423
01-29-2016
COMMONWEALTH v. ROBERT AZEVEDO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a jury trial in the District Court, the defendant was found guilty of operating a motor vehicle while under the influence of alcohol (OUI), G. L. c. 90, § 24(1)(a)(1), and of negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). With respect to both charges, the elements of operation and public way were stipulated. On appeal, the defendant argues that the evidence was insufficient to prove intoxication (with respect to the OUI charge) or negligence (with respect to the negligent operation charge). We disagree and affirm both convictions.
Viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following facts beyond a reasonable doubt. Around 11:30 P.M. on the evening of September 18, 2012, Mary Burke and William Fairclough heard a loud screeching of brakes followed by a loud sound of impact outside their apartment building. They went outside to investigate and found that the defendant had driven his truck "head-on" into the back of Fairclough's truck, which had been parked on the left-hand side of the road. The impact was of sufficient force to crack the rear axle of Fairclough's truck and to cause the defendant's truck to become hooked onto the hitch of Fairclough's truck. Burke called the police.
In the forty minutes before police arrived, Burke observed the defendant to be incoherent; neither she nor Fairclough could understand him because his speech was so slurred. The defendant's eyes were glassy, and he emitted an odor of alcohol strong enough to be smelled from two feet away. The defendant repeatedly tried to unhook his truck as if to flee, by alternatively reversing and advancing it. At times, the defendant would slump over as though slipping in and out of consciousness. He did not appear to understand what Burke was saying to him. Burke was of the opinion that the defendant was intoxicated.
When the responding officer arrived, the defendant was unsteady on his feet and had to brace himself to stand steadily. He admitted that he had consumed three beers and a shot of liquor before leaving his work at a bar. His speech was slurred and the officer could detect an odor of alcohol on the defendant's breath. At the station, the defendant reiterated that he had consumed three beers and a shot that evening. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994) (unsteadiness on feet, odor of alcohol, and opinion of intoxication are factors that may be considered).
Against this evidence, it matters not that no one witnessed the collision, that there was no evidence of the defendant's blood alcohol level, or that field sobriety tests were not administered. The question is not whether other facts would have made the Commonwealth's case stronger; it is simply whether the facts proved sufficed to establish each element of the offenses beyond a reasonable doubt. Here, they did.
Judgments affirmed.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 29, 2016.