Opinion
14-P-273
07-17-2015
COMMONWEALTH v. DAVID J. BOURINOT.
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
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of liquor. See G. L. c. 90, § 24. On appeal, the defendant contends that (1) the Commonwealth improperly referred to the defendant's post-Miranda silence, (2) the evidence that the defendant was the driver of the vehicle was insufficient for the jury to have found him guilty, and (3) the Commonwealth did not prove beyond a reasonable doubt that the parking lot where the defendant was stopped was a public way. We affirm.
At a subsequent jury-waived trial, the judge found the defendant guilty of a subsequent offense. The defendant also was found responsible for a civil marked lanes violation.
Background. Early in the morning of January 8, 2012, State police Trooper Stephen Bigusiak was stopped at a rest stop on Route 128 in Lexington. While pumping gasoline into his cruiser, he heard a loud noise and observed a vehicle traveling in the access lane that runs parallel to Route 128. The vehicle's right rear tire was shredded, and the vehicle was riding on its rim, causing the noise.
On seeing this, the trooper got in his cruiser and pursued the vehicle, but lost it when it exited onto Route 2A. He subsequently discovered a fresh gouge mark on the road, caused by the rim of the vehicle and which extended for several miles along the road. Following the mark, the trooper eventually came upon the vehicle in a handicap parking space in the parking lot of a townhouse complex on Katahdin Drive. The trooper exited his cruiser and approached the vehicle to find the defendant, seated alone in the driver's seat of the vehicle, with the keys in the ignition and eating from a tin of popcorn. The trooper testified at trial that each of the other vehicle seats was packed with clothing, food, and sleeping bags. The trooper noticed a strong smell of alcohol emanating from the vehicle, and the defendant told him he had just come from a bar in Waltham where he had consumed between four and five alcoholic drinks. The defendant produced a valid license and registration, which showed he was the registered owner of the vehicle and lived on Katahdin Drive.
The defendant claimed his son's then-girlfriend had driven the car home, that the defendant had laid down to sleep in the passenger seat, and that the girlfriend had gone inside to use the bathroom. The girlfriend, who testified at trial (as did the defendant), did not offer an explanation as to how the defendant ended up in the driver's seat.
At the trooper's request, the defendant exited the vehicle and proclaimed his surprise on being shown the shredded tire. The trooper continued to smell a strong odor of alcohol emanating from the defendant, and his speech was slurred. The defendant then failed several field sobriety tests, following which he was placed under arrest. After booking, he was advised of his Miranda rights and consented to a breathalyzer test, which disclosed a blood alcohol level of .17.
Discussion. Post-Miranda silence. The defendant claims that the prosecutor improperly impeached him with his post-Miranda silence and referred to that silence during closing argument. We disagree. In questioning the trooper about his conversation with the defendant, the prosecutor sought to highlight the numerous discrepancies between the trooper's observations and the defendant's version of the events, i.e., that he did not drive his car, but instead was driven home from the bar by his son's then-girlfriend. The trooper testified that on encountering the defendant in the driver's seat of his car in the parking lot of his townhouse, he admitted that he just had come from a bar in Waltham. On cross-examination, defense counsel then asked the trooper if he had specifically asked the defendant whether he himself had driven home from Waltham, and the trooper replied that he had not asked the defendant that question. Immediately thereafter, on redirect examination, the prosecutor asked the trooper if the defendant had said he was not the driver, and again, the trooper responded in the negative. This was not an attempt to draw improper attention to the defendant's exercise of his right to remain silent, as the defendant had not asserted that right. Rather, the prosecutor only sought to highlight the inconsistencies between the trooper's observations (which supported the Commonwealth's theory of the case), and the defendant's explanation of how he had gotten home. See Commonwealth v. Rivera, 425 Mass. 633, 639 (1997).
None of the defendant's claims was preserved at trial, thus we review for whether error, if any, created a substantial risk of a miscarriage of justice.
Indeed, the trooper noticed that the passenger seat -- where the defendant claimed to have been sitting until arriving home -- was covered with clothes and other materials.
Prosecutor's closing argument. In her closing argument, the prosecutor referenced this evidence by arguing to the jury that the defendant never said, "Hey, hey, hey, I wasn't driving this car," or "Hey, hey, hey, I have no memory of what happened." This was a proper comment on the evidence in the record, and did not shift the burden of proof to the defendant. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). Even were we to conclude the statements were error, the defendant was not prejudiced by them where the judge properly instructed the jury that closing arguments were not evidence. The jury are presumed to follow this instruction. See Commonwealth v. Jackson, 384 Mass. 572, 579 (1981).
Sufficiency of the evidence. The defendant also claims that the evidence was insufficient to prove beyond a reasonable doubt that he drove the vehicle. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). We disagree. Although the trooper could not identify the driver of the vehicle when he first saw it being operated with a shredded tire on Route 128, the jury reasonably could have inferred that the defendant was behind the wheel. See Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52-53 (2006) (proof of operation of motor vehicle may rest entirely on circumstantial evidence); Commonwealth v. Cabral, 77 Mass. App. Ct. 909, 910 (2010) (same).
Here, the evidence revealed that the defendant was seated in the driver's seat (not in the passenger's seat where he claimed to have been on the ride home), the other seats in the car were full of clothes and other material, the keys were in the ignition, the headlights and taillights were on, and there was no sign of any other passenger at any time during the encounter. Moreover, the vehicle was registered to the defendant, who lived at that address. The inference that the defendant was driving the vehicle, though derived from circumstantial evidence, was thus one that the jury were entitled to draw. See Commonwealth v. Ortega, 441 Mass. 170, 174 (2004) (inferences derived from circumstantial evidence need only be reasonable, not inescapable).
Likewise, the Commonwealth introduced adequate evidence that the defendant drove on a public way. The parking lot where the defendant's vehicle was parked was paved, had painted parking spot lines, and did not have any gate or signs prohibiting members of the public from entering as licensees or invitees. See Commonwealth v. Muise, 28 Mass. App. Ct. 964, 965-966 (1990). Even if the parking lot was not a public way, the evidence clearly established that both Route 128 and Route 2A were public roads, and that is where the jury found that the defendant had been operating his vehicle while under the influence of liquor.
Finally, the judge's jury instruction as to the definition of a public way was not error where the judge recited, practically verbatim, the model jury instruction on that element. The instruction as given was a correct statement of the law in this Commonwealth, and because there was no error, there was no substantial risk that justice miscarried.
The defendant requested that the model jury instruction be given.
Judgment affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 17, 2015.