Opinion
19-P-1255
08-06-2020
COMMONWEALTH v. KENNETH DYKENS, JR.
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 grand jury heard testimony that a police K-9 dog had tracked the scent from a collision between a Nissan automobile and a guardrail to a nearby neighborhood where the defendant was discovered slumped against a fence. There was an open, partially consumed bottle of wine on the ground next to him. It was approximately 2:00 A.M. on February 9, 2017, and the defendant was extremely intoxicated. Officers discovered documents in the Nissan that bore the defendant's name. After also hearing evidence that the defendant's license had been revoked because he previously was convicted of operating under the influence of intoxicating liquor (OUI), the grand jury voted to indict the defendant for OUI (fifth offense), operating a motor vehicle with a license that was revoked for OUI, and leaving the scene of property damage. The defendant's pretrial motion to dismiss the indictments, on the ground that the evidence did not establish probable cause to believe that the defendant was operating the Nissan at the time of the collision, was denied.
Thereafter, a bifurcated trial took place. In the first phase of trial, a Superior Court jury convicted the defendant of OUI and leaving the scene of property damage. A Superior Court judge convicted the defendant of the remaining indictments following a jury-waived second phase of the trial. On appeal from the convictions, the defendant claims that (1) the motion to dismiss should have been allowed, (2) the evidence at trial was insufficient to prove the elements of operation and intoxication beyond a reasonable doubt, and (3) the erroneous admission of certain testimony created a substantial risk of a miscarriage of justice. We affirm.
Background. We summarize the trial evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). At 12:26 A.M. on February 9, 2017, Massachusetts State Police Trooper Ryan Foley "ran the plate" on a grey Nissan Rogue that he observed being operated by a white male. Approximately twenty-five minutes later, Foley was dispatched to respond to an accident involving the same vehicle. The Nissan had crashed into a guardrail and was still running when Foley and other troopers arrived. The driver's side airbag had deployed, but no one was in or near the vehicle. Inside the Nissan were unopened containers of alcohol and paperwork bearing the defendant's name and date of birth. Trooper John Doherty and his K-9 dog, Duke, tracked "an abundance of human odor" and a single set of footprints through the snow to a nearby neighborhood, and eventually to the defendant. The defendant was slumped against a fence next to a partially consumed bottle of wine. He "was extremely lethargic," to the point where "he would barely open his eyes" in response to Duke's barking and Doherty's "clear and loud commands." Foley asked the defendant if he knew where he was. The defendant "stated that he was sitting in front of his house in Fitchburg," which Foley testified was a twenty-five minute drive away. Two troopers had to help the defendant walk to a cruiser because he was so unsteady on his feet. This was no easy task, because the defendant is "a large-framed person."
The previous morning, February 8, the defendant and a man named Michael had arrived at the home of the defendant's former girlfriend. The defendant demanded to use the girlfriend's Nissan Rogue. When the girlfriend refused, the defendant took the keys anyway and drove away, with Michael as his passenger. After the defendant was arrested, and while he was being held without bail, the defendant sent the former girlfriend letters in which he admitted that he was driving the Nissan when it crashed, and in which he instructed her to lie at trial and say that Michael was driving.
The defense at trial was that the defendant was a passenger in the Nissan. The sole witness for the defense was a private investigator, who testified that he took pictures of the Nissan after the crash and observed that the "driver's side, side curtain" airbag was deployed. On cross-examination, the prosecutor asked, "In fact, if there was anyone in the front passenger seat, that airbag would have been activated, correct?" Without objection, the investigator responded, "As far as I know, yes." In his closing, defense counsel argued that the defendant is "a big guy," "[t]here's no way he got that intoxicated off a half a bottle of wine," "[h]e would have had to have been intoxicated when he was in that car," and the fact that the Nissan was not being operated erratically when Foley observed it "tells you that [the defendant] wasn't driving the car." The prosecutor urged the jury to reject the inference that the defendant was a passenger in light of "testimony that the passenger airbag didn't go off and that it would only go off if somebody's in it." The defendant's objection to this argument was overruled.
Discussion. 1. Motion to dismiss. To sustain an indictment, "at the very least the grand jury must hear sufficient evidence to establish the identity of the accused, . . . and probable cause to arrest him." Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Probable cause in this context "requires 'sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed,' [and] not proof beyond a reasonable doubt." Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020), quoting Commonwealth v. Levesque, 436 Mass. 443, 447 (2002). The defendant claims that his motion to dismiss the indictments should have been allowed because the evidence before the grand jury did not provide probable cause to believe that the defendant was operating the Nissan when it crashed, or that he was operating while intoxicated.
The defendant's challenge to the sufficiency of the evidence of intoxication is waived because that issue was not raised before trial. See G. L. c. 277, § 47A; Mass. R. Crim. P. 13 (c) (2), as appearing in 442 Mass. 1516 (2004). To the extent we still consider it, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002). There was overwhelming evidence that the defendant was intoxicated when he was discovered. From the extreme level of intoxication and testimony that the defendant was discovered within an hour of the crash, the grand jury could infer that the defendant was also intoxicated at the time of the accident. See Commonwealth v. Ramirez, 44 Mass. App. Ct. 799, 802-803 (1998) ("We think that it was within the common knowledge of jurors that an intoxicated person, once he stops drinking, becomes less intoxicated over time").
With respect to operation, the grand jury heard evidence that a single white male was operating the Nissan twenty-five minutes before it crashed; a K-9 trained in tracking human scent responded to the scene of the crash and immediately detected an odor which he tracked to the defendant; the scent was accompanied by a single set of footprints in the snow; the defendant was the only person located in the area, which was within walking distance from the crash site, at 2:00 A.M.; and documents bearing the defendant's name and date of birth were the only ones found in the Nissan. Viewing this evidence in the light most favorable to the Commonwealth, see Stirlacci, 483 Mass. at 780, a reasonable grand juror could infer that the defendant was operating the Nissan when it crashed.
2. Sufficiency of trial evidence. The defendant conceded at trial that he was intoxicated but claimed there was insufficient evidence that he was operating the Nissan when it crashed. For the first time on appeal, he also claims that there was insufficient evidence that he was intoxicated at the time of operation, rather than after the crash occurred. We review these claims to 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." Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
The Commonwealth presented strong circumstantial evidence that the defendant was the sole male observed operating the Nissan before it crashed. He was the only person to have a relationship to the owner of the vehicle, which he took earlier in the day without her permission. A single set of footprints and a strong human odor led responding troopers to the defendant, who was the only person in the area, less than one hour after the crash occurred. When found, the defendant was extremely lethargic and slow to respond to verbal commands, was unsteady on his feet, his eyes appeared very glassy and bloodshot, and his speech was slurred. The only documents located in the Nissan belonged to the defendant. Thereafter, the defendant admitted in letters to the former girlfriend that he had crashed her car. An inference that the defendant was operating the Nissan when it crashed was not only "reasonable and possible," Commonwealth v. Kelly, 470 Mass. 682, 693 (2015), but practically inescapable. See id. ("evidence of a defendant's guilt may be primarily or entirely circumstantial").
The defendant's belated claim that the evidence was insufficient to prove he was intoxicated while operating the Nissan requires little discussion. Alcohol (albeit unopened) was located in the vehicle, the defendant was discovered within walking distance of the crash site an hour after the crash occurred, the defendant was in a state of extreme intoxication, and a partially consumed bottle of wine was found with him. A reasonable jury could have inferred, as defense counsel suggested, that the defendant is "a big guy," "[t]here's no way he got that intoxicated off a half a bottle of wine," and "[h]e would have had to have been intoxicated when he was in that car." The jury could also have reasonably inferred, as the Commonwealth argued, that the defendant fled the scene of the accident precisely because he was already intoxicated when it occurred. As the Commonwealth argued, it is "not illegal to be a drunk passenger in a motor vehicle, but despite that[] being the defendant's theory here, the defendant fled," thus indicating consciousness of guilt of operating while under the influence.
Trooper Foley testified, and the jury thus could have found, that the bottle was still three-quarters full.
3. Testimony of investigator. The defendant conceded at oral argument that the prosecutor was entitled to argue that the passenger airbag would have deployed if in fact the defendant was riding in that seat at the time of the collision, because the investigator had so testified. In reality, then, the defendant's final claim is not that the prosecutor's closing argument was improper. Rather, the claim is that the testimony should not have been admitted, and its admission created a substantial risk of a miscarriage justice because the prosecutor was then able to argue that evidence in closing. We see no error in admitting the investigator's testimony, much less one that would have "materially influenced" the guilty verdict. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (defining substantial risk of miscarriage of justice).
Here, the investigator was not qualified as an expert, so his opinions regarding airbag deployment were lay ones that the jury could render itself. Additionally, the defendant's claim that expert testimony was required to describe airbag deployment is neither supported by citation to case law, nor persuasive where the defendant called the witness to render lay opinions about airbag deployment. That portion of the prosecutor's closing consisted of one sentence in an argument that spanned the length of twelve pages of trial transcript. We doubt that the statement had much if any influence on the jury, given that, although someone must have been driving, the steering-wheel airbag did not deploy either; the argument that the failure of the airbag in front of the passenger seat did not deploy meant that there was no passenger in that seat was a weak one in the circumstances. Finally, the circumstantial evidence against the defendant was overwhelming when combined with the significant evidence of the defendant's intoxication and consciousness of guilt.
Judgments affirmed.
By the Court (Desmond, Sacks & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 6, 2020.