Opinion
10-P-853
11-23-2011
COMMONWEALTH v. RICHARD B. DUCOING.
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, Richard B. Ducoing, was convicted of operating a motor vehicle under the influence of alcohol (OUI), fifth offense, in violation of G. L. c. 90, § 24(1)(a)(1), and operating a motor vehicle to endanger the lives or safety of the public, in violation of G. L. c. 90, § 24(2)(a). He argues that there was insufficient evidence to support the charge of operating to endanger, that the subsequent offense portion of the OUI charge cannot stand because the prior OUI convictions were not adequately shown to be his convictions, and that the trial judge erred by admitting lay opinion testimony on the issue of the defendant's fitness to drive. Because the evidence was sufficient to convict the defendant of operating to endanger and operating a motor vehicle under the influence of alcohol, fifth offense, and the defendant's intoxication was a fair subject for a lay opinion, we affirm.
In order for the defendant to be convicted of operating to endanger, the Commonwealth must show that he drove negligently in such a way that the public's safety might have been endangered. See Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007). The defendant correctly notes that drunkenness, while relevant to a finding of negligence, is not of itself sufficient for purposes of this statute. See Commonwealth v. Woods, 414 Mass. 343, 350, cert. denied, 510 U.S. 815 (1993); Commonwealth v. Dyer, 77 Mass. App. Ct. 850, 857 n.9 (2010). However, in addition to the strong evidence of his intoxication, here the defendant drove in the dark on a bare rim, such that his front tire was completely missing, for a long enough distance that the gas station
Contrary to the defendant's suggestion, it was permissible for jurors to infer, based on their common sense and general experiences, without expert testimony, that driving on a bare rim would make it more difficult to control a vehicle.
[FN1]could hear the sound of the metal rim as he arrived, and see the marks all the way in from Route 138. The defendant did not remember when his tire blew out, nor was he able to say how he came to be in Raynham, a considerable distance out of his way from Revere to Brockton. The jury could reasonably have inferred that he was confused and did not recognize the danger posed by driving without four functional tires. There was also evidence that the defendant was bleeding from an inch-long laceration on his hand that required stitches, which the jury could have believed would have made it more difficult for him to control his vehicle with adequate care. Under these circumstances and in the light most favorable to the Commonwealth, the evidence was sufficient to support the conviction for operating to endanger, and so there was no error in the denial of the defendant's motion for a required finding of not guilty. See Commonwealth v. Gordon, 389 Mass. 351, 358 (1983); Commonwealth v. Siciliano, 420 Mass. 303, 307-308 (1995); Commonwealth v. Ferreira, supra at 35-36.
The defendant next contends that his motion for a required finding of not guilty on the subsequent offense portion of the OUI charge should have been allowed. There are minor discrepancies between the biographical information in the court records and the information provided by the Registry of Motor Vehicles (RMV), but a rational fact finder could conclude that the defendant was convicted of OUI, third offense, separately in Peabody District Court and in Boston Municipal Court, Charlestown Division. The RMV records included the defendant's biographical information as well as a photograph that the trial judge could compare to the defendant in court. The defendant conceded in the trial court that the Peabody conviction established three prior OUI offenses. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006). Even if he had not so conceded, the Peabody court record reflected the defendant's full name including middle initial, date of birth, social security number, and an address associated with him, all as reflected in the RMV records. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 546-547 (2008). The Charlestown record contained the defendant's name including middle initial, correct address, and month and day of birth according to the RMV records. Occasional misspellings of his last name (Docoing instead of Ducoing) and an incorrect year of birth (1990, the same year as the complaint) are obvious typographical errors that a rational fact finder could disregard. See Commonwealth v. Bowden, supra at 595-596 & n.6, 601-602. We therefore discern no error.
Shortly before oral argument, the defendant submitted a supplemental letter pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), contending for the first time that the admission of a document from the probation office and the admission of the Registry of Motor Vehicles (RMV) records at the subsequent offense trial violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. See Commonwealth v. Parenteau, 460 Mass. 1, 5-10 (2011); Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 333-334 (2011). The argument on the RMV records was de minimus, essentially amounting to only a citation to Commonwealth v. Parenteau, supra, without further analysis. The RMV records appear to have been properly admitted as nontestimonial business records because they were, as attested by the stamp and digital signature of the Registrar, true copies of records kept by the RMV in the ordinary course of its business. See Commonwealth v. Parenteau, supra at 10. In contrast, the RMV certificate found to be problematic in Parenteau 'did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed -- i.e., notice had been mailed on a specified date.' Id. at 8. Had there been a contemporaneous business record of the mailing of the notice in Parenteau, the certificate would have been admissible. Id. at 10.
Any error in the admission of the probation office document was harmless beyond a reasonable doubt. See Commonwealth v. Ellis, supra at 334335. As discussed in detail in this memorandum, the court documents and RMV records provided a sufficient basis for the convictions to be linked to the defendant. The probation office document was merely cumulative of this evidence, which was all properly admitted. See Commonwealth v. Vasquez, 456 Mass. 350, 360 n.12 (2010); Commonwealth v. Ellis, supra at 332333, 335336. Indeed, the trial judge did not rely on the probation office document, instead crediting 'specifically exhibits 1, 2, and 3,' which were respectively the RMV records, the Peabody docket, and the Charlestown docket.
Lastly, the defendant contends that the admission of the gas station clerk's statement that he was 'not fit to be driving' constituted prejudicial error. In context, this conclusion seems to convey no more than the witness's belief that the defendant was intoxicated, which is properly the subject of lay opinion testimony. See Commonwealth v. Atencio, 12 Mass. App. Ct. 747, 750-751 (1981). The prosecutor's references to this testimony in his closing are consistent with this interpretation, as he described the witness's testimony that the defendant walked into a column and a glass wall, smelled of alcohol, and had glassy red eyes, as well as her testimony that she is familiar with the indicia of intoxication. The judge gave appropriate instructions concerning the jury's evaluation of witnesses' testimony and opinion testimony in particular. We conclude there was no error.
Because we see no merit in this argument, we need not decide whether the defendant failed to preserve the point by not moving to strike the witness's arguably nonresponsive statement.
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Judgments affirmed.
By the Court (Kafker, Cohen & Katzmann, JJ.), Clerk