Opinion
11-P-1012
04-04-2012
COMMONWEALTH v. CARLOS A. CORDEIRO.
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
The defendant appeals from a conviction by a District Court jury of driving under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a)(1). We affirm.
Discussion. 1. On appeal, the defendant argues there was insufficient evidence that he was operating under the influence of alcohol. In determining whether the evidence presented at trial was sufficient, the reviewing court must determine '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. Latimore, 378 Mass. 671, 677 (1979).
To be found guilty of operating under the influence, the defendant has to have (1) operated a vehicle, (2) on a public way, (3)under the influence of alcohol. Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). The defendant does not dispute the sufficiency of the evidence as to the first two elements of the offense, and thus we only consider whether there was sufficient evidence to show that the defendant was 'under the influence of alcohol.' To establish that a defendant was under the influence of alcohol, 'the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely' (emphasis in original). Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). The defendant need not be drunk and the Commonwealth 'need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely' (emphases in original). Ibid.
In the present case, the jury could have found that the evidence supported a finding that the defendant was under the influence of alcohol. Two police officers testified that the defendant's eyes were glassy, that his speech was slurred and that he emanated an odor of alcohol. See Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924 (1999) (officer's observations that he smelled alcohol on defendant's breath, that defendant's eyes were watery and bloodshot, that her speech was slurred, and other facts supported a finding that she was under the influence). One of the officers further testified that the defendant drove erratically when he veered into the other lane, almost causing a collision with an oncoming car. See ibid. (swerving in and out of lane was evidence that defendant was operating under the influence). The other officer testified that the defendant fell asleep in his car in the few minutes he was waiting for the second officer to arrive, and the second officer had to knock 'real loud' to wake the defendant up. See Commonwealth v. Otishmi, 398 Mass. 69, 70 (1986) (evidence that defendant was under the influence where officer 'pounded on the window' and yelled for about three minutes to get the defendant to wake up). Furthermore, the defendant admitted to one officer that he 'had a little bit too much to drink'; responded to another, 'Of course, I wouldn't lie to you, I'm feeling nice' when asked if he had consumed alcohol; and testified on the stand that he had a beer and a glass of wine with his dinner. Finally, the arresting officer testified that the defendant said, '[F]uck that, I ain't agreeing to none of that shit' while he was reading the defendant his Miranda rights. Commonwealth v. Derouin, 31 Mass. App. Ct. 968, 970 (1992) (obscenities directed at officer 'were probative on the issue of whether the defendant was intoxicated'). Thus, there was sufficient evidence for a rational jury to find that the defendant was under the influence of alcohol at the time of his arrest.
2. The defendant argues that the officer's testimony that the defendant said, '[F]uck that, I ain't agreeing to none of that shit,' and was disruptive while his Miranda rights were being read, together with the prosecutor's closing argument description of the defendant as 'uncooperative,' constituted impermissible use of refusal evidence. Under G. L. c. 90, § 24(e), 'evidence that the defendant failed or refused to consent to [a field sobriety or breathalyzer test] is not admissible.' See Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 370-371 (2006).
The defendant's argument fails because no evidence of refusal was introduced at trial; there is no mention of a field sobriety or breathalyzer test in the record. Contrast Commonwealth v. Scott, 359 Mass. 407, 408 (1971) (officer stated he asked defendant if he was willing to take a breathalyzer test; defendant's answer was no), and Commonwealth v. Conroy, 396 Mass. 266, 268 (1985) (trooper's testimony that defendant was afforded an opportunity to take a breathalyzer test without saying whether he refused was indirect evidence of refusal).
The defendant's claim that by describing him as 'uncooperative,' the prosecution was conveying the idea to the jury that he refused a field sobriety or breath test 'which the jury would have expected to hear' is unwarranted. The jury could have found that the characterization of the defendant as uncooperative referred to his arrest since he was being disruptive while he was being read his Miranda rights. Furthermore, the defendant's statement cannot be construed as evidence of refusal because there is nothing in the record that indicates that the statement was in response to something other than the reading of his Miranda rights.
Since there was no evidence presented that the defendant refused to submit to a field sobriety or breathalyzer test and there was nothing in the record that could lead a jury to find that there was indirect refusal evidence, we discern no merit to the defendant's argument.
Judgment affirmed.
By the Court (Katzmann, Sikora & Agnes, JJ.),