Opinion
20-P-135
12-23-2020
COMMONWEALTH v. STEVEN BYRNES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A Superior Court jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI). On appeal, he challenges that conviction on three different grounds. We affirm.
The jury also found the defendant guilty of threatening to commit a crime and of disorderly conduct. He raises no claims of error with regard to those convictions.
Following a separate bench trial, the defendant was found guilty of OUI as a seventh offense. He raises no claims of error with respect to the subsequent offense aspects of his case.
Background. We summarize the trial evidence as follows, reserving certain details for later discussion. At approximately 2:20 P.M. on November 28, 2016, the defendant went to pick up his younger son at an elementary school in Everett. Visibly intoxicated and belligerent, he threatened harm to the school's principal and otherwise caused a disturbance at the school. The Everett police arrested the defendant and took him back to the police station where he was held in a cell until approximately 10:30 P.M. After arriving at home shortly before 11 P.M. that same night, the defendant went into his older son's room and asked where the beer was.
Although it is not clear how the defendant traveled to the school, there was no trial evidence that he drove there, and he was not, in any event, charged for OUI based on such travel.
An hour or so later, the older son observed his father retrieve his yellow motorcycle. The son informed the defendant that he would call the police if the defendant rode off on the motorcycle. After the defendant rode off, the son called the police to report that his father was drunk and operating his motorcycle. The dispatcher put out a "be on the lookout" bulletin (BOLO) for the defendant driving a yellow motorcycle.
After hearing the BOLO, Officer Nicole O'Donnell, who was working on detail, saw the defendant take a wide turn onto Maple Avenue. She ran after him, and saw him stopped on his motorcycle facing a house on the street, while moving the motorcycle back and forth. As he was accelerating his motorcycle from a full or near stop on Maple Avenue, O'Donnell observed that the defendant was "weaving side to side," "[k]ind of wobbling," "[u]nbalanced," and "driving all over the road." She then saw him continue down Maple Avenue and take a left turn onto Linden Street, and she provided a radio report of what she had seen. O'Donnell learned that Officers Fitzpatrick and Cristiano were in their police cruiser on Linden Street and had spotted the defendant.
Having heard the BOLO, as well as O'Donnell's update, Cristiano and Fitzpatrick pulled the defendant over on Linden Street and removed him from his motorcycle. Fitzpatrick testified that the defendant had "slurred speech"; was "unsteady on his feet"; and "was swaying from side to side, glassy-eye[d], and there was a strong odor of alcohol coming from him." Cristiano testified to comparable observations.
At the defendant's booking, then-Lieutenant Paul Hamilton observed, from a distance of one to two feet away, that the defendant had "the classic symptoms" of intoxication: "glassy eyes," "slurred speech," "staggering," and intermittently exhibited "uncooperative," "insulting," and "belligerent" behavior. He also observed the defendant "hold[ing] onto the desk from time to time to steady himself," and smelled an alcoholic odor on the defendant's breath.
Discussion. 1. Embedded hearsay/confrontation clause. As noted, the BOLO resulted from the defendant's son having reported that his father was driving his motorcycle while intoxicated. In addition, before the defendant's arrest, O'Donnell observed the defendant driving in an erratic manner, and she provided a radio update about her observations. In their respective testimony, Fitzpatrick and Cristiano each referenced what they had heard over the radio. It is apparent that they were referencing what O'Donnell had reported, and Fitzpatrick even referenced her by name. For example, O'Donnell had testified that she saw the defendant "driving all over the road," and in response to a question whether he had received a post-BOLO update on the defendant's whereabouts, Fitzpatrick testified that "she stated over the radio that he's all over."
During his cross-examination of O'Donnell, defense counsel sought to impeach her with the fact that she failed to reference her observations about the defendant's driving in her initial notes of the incident. In this context, counsel himself suggested that O'Donnell's observations were of the defendant's having engaged in "erratic operation."
Most of the references came in response to questions regarding the basis for the officers' opinions that the defendant was intoxicated. The officers had previously testified that they had received training with regard to evaluating whether someone was intoxicated. The judge did not formally qualify either officer as an expert on the subject, and it remains unclear whether their views on the defendant's intoxication were being offered as lay or expert opinion. See Commonwealth v. Canty, 466 Mass. 535, 541 n.5 (2013) (observing that "a prosecutor who elicits from a police officer his or her special training or expertise in ascertaining whether a person is intoxicated risks transforming the police officer from a lay witness to an expert witness on this issue, and the admissibility of any opinion proffered on this issue may then be subject to the different standard applied to expert witnesses"). We need not resolve this issue, because the defendant does not argue that the officers' opinion evidence should have been excluded.
The defendant contends that the officers' testimony about what they heard over the radio improperly conveyed hearsay statements from others, and that this denied him the opportunity to confront those who made the out-of-court statements. However, because both O'Donnell and the defendant's son testified at trial, any error effectively was cumulative of properly admitted evidence and therefore harmless. See Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 775 (2001) (references to hearsay statements in police broadcast were cumulative, and harmless, where declarant officer had testified to his observations).
To be sure, as the defendant highlights, there are a few respects in which the arresting officers' testimony as to what they heard over the radio could be read as referencing hearsay statements of declarants other than the defendant's son and O'Donnell. Most significantly, Cristiano referred to the defendant's apparent "erratic operation as put over [sic] out over the radio by the other officers." The defendant argues that the jury could have taken Cristiano's use of the plural ("officers") as signifying that at least one officer other than O'Donnell had stated that he or she had seen the defendant operating his motorcycle in an erratic fashion, and that this significantly strengthened the Commonwealth's case.
In support of this argument, the defendant cites to Commonwealth v. Parkes, 53 Mass. App. Ct. 815, 816-821 (2002). There, one eyewitness, a trucker, testified that he had seen the defendant masturbating while driving; the defendant denied this, claiming that the trucker must have mistaken a water bottle he held between his thighs for his penis. Id. at 816-817. A trooper testified that police had received "several cell phone calls" reporting that the defendant was "exposing himself" in his car. Id. at 817-818. We reversed the defendant's conviction because the hearsay statements alluded to significantly corroborated disputed testimony of the sole eyewitness. Id. at 820-821.
In our view, this case is meaningfully different from Parkes. In Parkes, the out-of-court declarants' statements played a key role in proving the Commonwealth's case. See 53 Mass. App. Ct. at 820-821. Here, any hearsay evidence of other officers' observations played a minor role compared to O'Donnell's testimony on the defendant's driving and Fitzpatrick's, Cristiano's, and Hamilton's mutually-consistent eyewitness testimony that the defendant was intoxicated. The possibility that the jury took Cristiano's casual use of the plural as evidence that officers other than O'Donnell had seen the defendant driving erratically, and that such evidence animated the verdict, is too slender a reed to support reversible error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005) (error that "did not influence the jury, or had but very slight effect" does not constitute prejudicial error [quotation and citation omitted]). The evidence against the defendant was overwhelming even without the challenged statements, and the potential hearsay was essentially cumulative. Thus, any errors in allowing Cristiano and Fitzpatrick to testify about statements that others had made do not require reversal. See Commonwealth v. Littles, 477 Mass. 382, 391 (2017). See also Commonwealth v. Perez, 411 Mass. 249, 260 (1991) (even if error, cumulative testimony was harmless beyond reasonable doubt).
2. Evidence of "nips" of alcohol. When the defendant was arrested on his motorcycle, he had three unopened "nip[]" bottles of alcohol (nips evidence) in his pants pocket. The defendant filed a pretrial motion in limine seeking to exclude such evidence on the ground that its potential for undue prejudice outweighed any probative value. See Mass. G. Evid. § 403 (2020). The judge denied the motion in limine and, at trial, allowed the introduction of this evidence over the defendant's objection.
On appeal, the defendant argues that the nips evidence had minimal, if any, probative value given that the nip bottles were unopened, and instead served only to suggest that he was an alcoholic, which would constitute improper propensity evidence. See Commonwealth v. Shine, 25 Mass. App. Ct. 613, 614-615 (1988) (no error in excluding evidence of assault victim's alcoholism, because "possibility that [he] had been an alcoholic had no relevance on the question whether he was in fact intoxicated at the [relevant] time").
Although we agree with the defendant that the nips evidence had limited probative value, this is true about its prejudicial value as well. To the extent that the jury may have perceived the nips evidence as suggesting that the defendant had a drinking problem, this needs to be viewed in context. First, there was ample direct evidence that the defendant was in fact intoxicated on the night in question. Given that evidence, there was little need for the jury to speculate about the defendant's propensities. Second, the jury heard evidence that the defendant had showed up drunk at his son's elementary school at 2:20 P.M. (a point the defendant did not contest), and that after spending the rest of the day sobering up in jail, his first documented desire upon returning home was to find alcohol. In this context, the jury would hardly be surprised to see evidence suggesting that the defendant might have a drinking problem. Finally, the presence of the unopened nip bottles -- without any direct evidence of the defendant's having been observed drinking alcohol after he was released from his stay in jail -- put the defendant in a position to argue that while he may have intended to drink alcohol, he had not yet done so. Even if we were to conclude that the judge abused her discretion in allowing the nips evidence to be admitted, we are confident that any error "did not influence the jury or had but very slight effect." Cruz, 445 Mass. at 591, quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
3. Breathalyzer reference. As noted, the defendant was arrested twice on the day in question. Sergeant Robert Zaino testified about the defendant's booking and eventual release from jail following his initial arrest. The prosecutor posed a question to Zaino as follows: "[P]rior to someone being released from your department, would they be tested in any way?" The officer answered: "If it was a driving under, yes. They'd be given a Breathalyzer. It would be up to them whether they wanted to take it or not." The defendant immediately moved for a mistrial based on the reference to a breathalyzer. The judge denied the motion, but immediately instructed the jury that they were to "pay no attention to that last answer, which is stricken."
In describing her training, O'Donnell mentioned that she had received "one full day of breath testing." No objection was lodged to this passing reference.
We review the denial of a motion for a mistrial for abuse of discretion, see Commonwealth v. Silva, 93 Mass. App. Ct. 609, 614 (2018), bearing in mind that the trial judge is in the best position to determine whether an error warrants the "extreme measure" of mistrial. Commonwealth v. Amran, 471 Mass. 354, 360 (2015). Here, the officer's reference to the option of a defendant taking a breathalyzer was unfortunate and entirely avoidable. However, this reference came in the context of a discussion of the defendant's arrest for making a threat and disorderly conduct based on his actions at the elementary school, not his later OUI arrest. In our view, the reference to a breathalyzer was too limited and attenuated to require a mistrial. Cf. Commonwealth v. Conroy, 396 Mass. 266, 269 (1985) (given weighty evidence of defendant's intoxication, isolated, inadvertent reference to defendant's opportunity to submit to a breathalyzer examination did not warrant reversal). This is not a case where a witness effectively "told the jury, by strong implication at least, that the defendant's blood alcohol level had not been tested, and that the reason no test was conducted was that the defendant refused to submit to such a procedure." Commonwealth v. Zevitas, 418 Mass. 677, 683 (1994). In addition, the judge struck the answer and instructed the jury not to consider it. The judge did not abuse her discretion in denying a mistrial.
At sidebar, the prosecutor told the judge that the witness's response "was not the answer [she] was intending to elicit." We agree with the defendant's observation that it is difficult to imagine what proper answer the prosecutor was trying to elicit.
To the extent the plaintiff's other arguments have not been explicitly addressed, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.
By the Court (Wolohojian, Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 23, 2020.