Opinion
10-P-890
11-01-2011
COMMONWEALTH v. GREGG J. CHENEY.
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
A Superior Court jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor G. L. c. 90, § 24. The defendant then proceeded to a bench trial on the subsequent offense portion of the charge. The judge found the defendant guilty of a third offense and sentenced him to two years in a house of correction, with one hundred and fifty days to be served and the balance suspended for two years while the defendant is on probation.
On appeal, the defendant contends that his conviction should be reversed because the judge erred in allowing, over his objection, expert testimony regarding the Horizontal Gaze Nystagmus (HGN) test because, he alleges, the officer was not qualified to administer the test, see Commonwealth v. Sands, 424 Mass. 184, 185-189 (1997); the judge erred in denying his motion for a required finding of not guilty; and the defendant's trial counsel provided ineffective assistance of counsel by stipulating to the identification of the defendant as the person who had been convicted of two prior operating under the influence charges. In addition, the defendant argues, and we agree, that the trial as to the subsequent offense portion of the charge was defective because the judge failed to engage in a colloquy with the defendant to determine whether he was knowingly, intentionally, and voluntarily waiving his rights to a trial. See Commonwealth v. Lopez, 447 Mass. 625, 628 (2006).
The Commonwealth concedes that the defendant's trial as to the subsequent offense portion of the charge was inadequate because it was a stipulated trial in which the defendant was not given a proper colloquy as to waiving his rights to a trial. As a result, the defendant is entitled to a new trial on the subsequent offense portion of the charge. Therefore, we need not address any argument related to this charge.
1. The HGN test. After a thorough review of the record we conclude that even if there were error, which we are not finding, in the admission of the evidence of the HGN test, it was not prejudicial. Although Officer Matthew Lynch presented testimony regarding the HGN test, he did not form any opinion as to the defendant's sobriety based upon that test. Moreover, other evidence presented by the Commonwealth was overwhelming in demonstrating that the defendant had operated his vehicle while under the influence of intoxicating liquor.
Under the familiar Latimore test, this court views the evidence in the light most favorable to the Commonwealth in order to determine whether that evidence was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
Testimony presented by the Commonwealth at trial through Officers Lynch and Stephen Kingsley established that at the time the defendant was arrested, he had a strong odor of alcohol emanating from him, his eyes were bloodshot and glassy, and he was unsteady on his feet, swaying side to side. In addition, the defendant had failed the other eight field sobriety tests administered and, after being transported to the police station, had to be assisted in walking because of his unsteadiness. There was no error in denying the motion for a required finding on that issue.
2. Operation on a public way. We also reject the defendant's claim that the Commonwealth failed to establish that the defendant operated a vehicle on a public way. The evidence in the case clearly contained sufficient indicia to qualify the parking area of the apartment complex as a way to which the traveling public is invited to travel, either as an invitee or licensee. See ibid; Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549 (1996) (objective appearance of way determinative of its status).
Accordingly, the judgment as to the charge of operating a motor vehicle under the influence of intoxicating liquor is affirmed, and the judgment as to the subsequent offense portion of that charge is reversed, that finding is set aside, and the matter is remanded to the District Court.
So ordered.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),