Opinion
10-P-1708
12-01-2011
COMMONWEALTH v. MARK M. BURGE.
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
After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24(1)(a)(1). The defendant then pleaded guilty to this conviction being his fifth offense, and to operating a motor vehicle with a suspended license in violation of c. 90, § 23. On appeal, he claims that the judge abused his discretion by admitting in evidence a photograph. We affirm.
The defendant claims it was error to admit the photograph because it was undated, not authenticated, and the officer used to introduce it was not the photographer. We disagree for several reasons. First, the arresting officer was competent to, and did, properly authenticate the photograph as accurately depicting Chatham Street at the relevant time even though it was undated. See Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002). Second, the photograph was admitted as rebuttal evidence as it was relevant to the officer's credibility, not as substantive evidence. See Commonwealth v. Lyons, 444 Mass. 289, 298-299 (2005). Third, the photograph was cumulative to another photograph, exhibit no. 3, which also depicted the street with divided lines and was admitted in evidence without objection. Fourth, contrary to the defendant's claim, the photograph was not important to the Commonwealth's case. While the officer testified that after he activated his blue lights, the defendant's truck veered into the other lane, what initially generated the officer's suspicion was the defendant driving on the wrong side of the road, at night, with his headlights off. When the defendant was pulled over, he fled when the officer returned to his cruiser. There was more than a reasonable basis to suspect the defendant was impaired apart from the lanes violation, with which he was not charged. Finally, the judge's careful, unobjected-to, limiting instruction that followed the admission of the photograph dispelled any possible prejudice to the defendant.
Judgments affirmed.
By the Court (Grasso, Smith & Meade, JJ.),