Opinion
18-P-1737
05-19-2020
COMMONWEALTH v. Scott BEAULIEU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, a judge in the District Court found the defendant guilty of leaving the scene of property damage, reckless operation of a motor vehicle, and operating under the influence of intoxicating liquor (OUI). On appeal, the defendant challenges (1) the judge's ruling allowing a witness to make an in-court identification of the defendant, and (2) the sufficiency of the evidence that he operated a motor vehicle, and (3) the sufficiency of the evidence that his ability to operate a motor vehicle was impaired by his consumption of alcohol. We affirm.
The defendant subsequently pleaded guilty to the OUI as a third offense.
In-court identification. The defendant first argues that the judge erred in permitting a witness, Monica Rodrigues, to make an in-court identification of the defendant, and to testify that she had served him alcohol on the same evening that he was involved in the single-vehicle collision at issue in this case. See Commonwealth v. Crayton, 470 Mass. 228, 252 (2014) ; Commonwealth v. Chin, 97 Mass. App. Ct. 188, 199 (2020).
At trial, the Commonwealth called Rodrigues, a bartender at The Happy Clam, a bar near the location where the accident took place, to testify that she had served the defendant alcohol before the collision occurred. The defendant moved for a voir dire on the grounds that the police had engaged in a suggestive, although unsuccessful, identification procedure with her on the night of the collision, showing her a single photograph of the defendant and asking her to identify the person depicted. The prosecutor explained that the Commonwealth had not filed a motion in limine for leave to admit Rodrigues's in-court identification because the police report indicated that Rodrigues "[was] familiar with [the defendant]." The judge denied the motion.
The defendant did not dispute this representation.
Rodrigues testified that she was bartending on the evening in question and that she had served the defendant, whom she knew as "Scott," "a regular" at The Happy Clam, one or two beers. After the defendant left, Rodrigues heard, but did not see, what sounded like a vehicular accident. Later that evening, the police showed Rodrigues a single photo of the defendant; Rodrigues told the police that the person in the photo "[was not] the guy that [she was] just serving." At trial, Rodrigues explained that the appearance of the hair style of the individual depicted in the photo prevented her from identifying him as the defendant.
At trial, Rodrigues was clear that she had not wanted to be involved in the police investigation into the crash, and that in speaking with the police that night, she was concerned that she would lose her job.
There was no abuse of discretion in the admission of Rodrigues's in-court identification of the defendant. See Commonwealth v. Johnson, 473 Mass. 594, 602 (2016). First, the rule established in Commonwealth v. Collins, 470 Mass. 255, 265 (2014), and Crayton, 470 Mass. at 241-242, was not applicable here. See Collins, supra (limiting application of "new rule" in Crayton and Collins "to in-court identifications of the defendant by eyewitnesses who were present during the commission of the crime"); Chin, 97 Mass. App. Ct. at 199 (same). Rodrigues's testimony was offered only to establish that the defendant was the person to whom Rodrigues served alcohol on the night of the collision, and not to prove that the defendant was the person who committed a crime. See Commonwealth v. Dew, 478 Mass. 304, 313 (2017), quoting Crayton, supra at 242 ("good reason" for permitting in-court identification "consists of circumstances where an in-court identification is not material to a determination of guilt or innocence, and serves merely to inform the jury that ‘the person sitting in the court room is the person whose conduct is at issue’ "); Commonwealth v. Matos, 95 Mass. App. Ct. 343, 350 (2019) (arresting officer's in-court identification of defendant intended merely to show that defendant was person officer arrested and person in booking photo, not to show defendant was perpetrator).
Accordingly, while we agree with the judge that it would have been "better practice" for the Commonwealth to have filed a motion in limine for leave to have Rodrigues identify the defendant at the trial, we do not consider the effect of the prosecutor's failure to do so in this case.
Although, as the judge acknowledged, in-court identifications are inherently suggestive, in this case, the defendant failed to make any showing that the police officer's attempt to have Rodrigues identify the defendant using a Registry of Motor Vehicles photo on the night of the crash was "so unnecessarily suggestive as to violate due process." See Commonwealth v. Sylvia, 57 Mass. App. Ct. 66, 68-69 (2003). As the judge observed, Rodrigues was familiar with the defendant as a long-standing "regular" at the bar in which Rodrigues worked well before the date of the accident; the risk that the out-of-court identification attempt tainted her in-court identification was negligible. See Crayton, 470 Mass. at 242-243. See also Commonwealth v. Cong Duc Le, 444 Mass. 431, 443 & n.9 (2005). In any event, the defendant admitted to the police that before the accident, he had drunk three twelve-ounce Budweiser beers at The Happy Clam. We conclude that "the procedure here did not create a substantial risk of misidentification," and that accordingly, the judge did not err in permitting Rodrigues to identify the defendant at trial. See Chin, 97 Mass. App. Ct. at 200.
Although the defendant argues on appeal that the in-court identification was impermissibly suggestive, he did not move in limine to suppress the identification and did not cross-examine Rodrigues.
Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we look to see "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Merola, 405 Mass. 529, 533 (1989), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The jury could have found the following facts. On the evening of October 25, 2015, a motorist saw a truck, driven by a man, spinning its tires and "peeling out" while coming from the opposite direction. As the motorist watched, the truck rounded a corner and left her view; the motorist then heard a crash and saw that the sky "lit up blue."
A resident in the area heard the screeching tires, then heard a loud bang. He went outside and saw that a pickup truck had collided head-on with a telephone pole; the driver's side of the truck was resting against the side of a nearby house. The man approached the truck and saw the defendant, whom he had known for twenty years, exit through the truck's passenger door. The man told the defendant that the police were on the way, and that the defendant should sit down and wait, but the defendant said, "I got to get out of here," and walked away.
The police arrived at the accident scene at approximately 9:15 P . M . Within approximately twenty minutes of the crash, the police left the scene and drove the half-mile to the defendant's address. When the officer arrived at the defendant's house, he found the lights and television on, and the door ajar, but no one at home.
The pickup truck was registered to the defendant.
Rodrigues was bartending at The Happy Clam on the date of the crash, and saw the defendant there for a short time. She served the defendant one or two beers before he left.
In addition, on the afternoon following the crash, having consented to an interview and waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 479 (1966), the defendant told the police that before the accident, he had drunk three twelve-ounce Budweiser beers at The Happy Clam, left the bar at approximately 9 P . M ., picked up his truck, and started to drive home. He told the police that before arriving home, he drove past his driveway, "attempted to go fast," turned onto another road then struck one, or perhaps two, telephone poles. He claimed that after crashing, he went to a friend's house.
The defendant does not contest the validity of the waiver.
We conclude that the evidence summarized above was sufficient. First, as to the element of operation, we note the defendant admitted to driving his truck and crashing into a telephone pole. His admission was corroborated by the evidence of the resident who saw the defendant get out of the truck immediately after the accident. Together, this evidence was sufficient to prove that the defendant was the driver of the truck at the time of the accident. See Commonwealth v. Adams, 421 Mass. 289, 291 (1995) (defendant's admission to operation sufficient where corroborated by testimony placing him outside his vehicle after collision).
There also was ample evidence that the defendant was intoxicated and his operation was impaired by liquor. The defendant admitted to drinking three beers at The Happy Clam; Rodrigues testified to having served him one or two of them, and established what the judge could infer was a short window of time within which the defendant could have consumed them. There was evidence of the defendant's driving "kind of crazy," and of his then being involved in a serious single-car accident, the details of which he could not clearly recall on the next day. See Commonwealth v. Morse, 468 Mass. 360, 378 (2014) (defendant's corroborated admission to drinking and using marijuana, coupled with observations of operation of motorboat at time of collision, sufficient to prove impairment, even in absence of other indicia of intoxication). Finally, when a bystander told the defendant that the police were on the way to the accident scene, the defendant said that he "had to go," and hastily left not only the crash scene, but also, the judge could have inferred, his home, in order to avoid the police. See Commonwealth v. Henault, 54 Mass. App. Ct. 8, 15 (2002) (defendant's flight from accident scene in order to avoid "[exposure] to police scrutiny and accusation" evidence of guilt). The evidence was sufficient to establish beyond a reasonable doubt that the defendant was intoxicated and his ability to operate a motor vehicle was impaired by his consumption of alcohol.
Judgments affirmed.