Opinion
19-P-340
01-08-2020
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
A jury convicted the defendant of negligent operation of a motor vehicle and operation of a motor vehicle while under the influence of marijuana (OUI). The defendant challenges his OUI conviction on the ground that the Commonwealth failed to meet its burden of proving that his ability to drive was impaired and that marijuana is a scheduled drug as defined in G. L. c. 94C, § 1. See G. L. c. 90, § 24 (1) (a) (1) (criminalizing operation of motor vehicle on public way while under influence of "marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G. L. c. 94C, § 1]"). The defendant also argues that the judge erred by refusing to instruct the jury on the defense of necessity. We affirm.
Background. The jury could have found the following facts. Around 2:45 A.M. on September 20, 2016, two uniformed police officers, Kiel Huard and Eric Huard, were parked in their respective cruisers when they saw headlights appear from behind an abandoned mill. When Officer Kiel asked the driver, later identified as the defendant, why he was there, the defendant stated that he had been smoking a "blunt." Officer Kiel observed that the defendant "stuttered" and "tripp[ed] over his words" and that his eyes were "swollen," "puffy," and "partially closed" as if he could not fully open them. Officer Kiel asked the defendant to pull over in front of Officer Eric's cruiser, but the defendant drove off instead.
Because the officers share a surname, we will refer to them by their first names. We spell Officer Kiel's first name and the officers' surname as they appear on the trial court docket rather than as they appear in the trial transcript.
Officer Kiel explained that this meant "[s]moking a cigar wrapper filled with marijuana" and that he understood the defendant's reply to mean that he had just ingested marijuana.
Both officers followed the defendant with their cruiser emergency lights and sirens activated, and Officer Eric used his loudspeaker to instruct the defendant to pull over. The defendant continued driving. At one point the defendant almost struck another car when he "aggressively" pulled out of an intersection. Eventually, the defendant stopped his car "towards the middle of [a] road," and the officers parked their cruisers in front of and behind him.
Officer Kiel walked toward the defendant and told him several times to shut the car off, but the defendant did not comply. As Officer Kiel neared the front of the car, he saw the defendant's hands moving and became concerned that the defendant would try to run him over. In response, Officer Kiel used his nightstick to strike the driver's side window, cracking it. Officer Kiel continued to tell the defendant to shut the car off, but the defendant instead "cut the wheel" and "sped away to the right side," hitting one of the cruisers in the process. Officer Kiel again pursued the defendant with his emergency lights and sirens activated and observed that the defendant "was not driving clearly within his marked lane" and was not "completely obeying traffic signals and signage," including failing to fully stop at stop signs. The pursuit ended when the defendant parked at a residence.
Discussion. 1. Evidence of impairment. We review the defendant's sufficiency challenge to determine "whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime[] beyond a reasonable doubt." Commonwealth v. Ayala, 481 Mass. 46, 51 (2018). To sustain a conviction of OUI, the Commonwealth had to prove that the defendant's consumption of marijuana "diminish[ed] his . . . 'ability to operate a motor vehicle safely.'" Commonwealth v. Davis, 481 Mass. 210, 216 (2019), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). A defendant's appearance and demeanor, as well as erratic driving, may indicate impairment of his ability to drive. See Davis, supra.
The Commonwealth met its burden in this case. The defendant admitted to smoking a "blunt." He stuttered; spoke slowly; had swollen, partially closed eyes; and repeatedly ignored the officers' orders to pull over despite their using sirens and emergency lights. In addition, though proof of actual unsafe or erratic driving was not required, see Commonwealth v. Jewett, 471 Mass. 624, 635-636 (2015), the Commonwealth established that the defendant did in fact drive erratically -- he "aggressively" pulled out of an intersection and nearly hit another car, drifted between lanes, failed to obey traffic signs, stopped in the middle of the road, and hit a police cruiser. Based on this evidence, a reasonable jury could have found that the defendant's marijuana consumption diminished his ability to safely operate his car.
2. Evidence that marijuana is a scheduled drug. The defendant also challenges his OUI conviction on the basis that the Commonwealth failed to prove that marijuana is a scheduled drug under G. L. c. 94C, § 1, the definitional section referenced in the OUI statute. This argument fails because the OUI statute expressly criminalizes the operation of a motor vehicle "while under the influence of . . . marijuana," G. L. c. 90, § 24 (1) (a) (1), and the Commonwealth produced evidence that the defendant admitted to smoking marijuana. The Commonwealth had no additional burden of proving that marijuana falls within one of the more general categories of substances defined in G. L. c. 94C, § 1. Cf. Commonwealth v. Green, 408 Mass. 48, 50 (1990) (Commonwealth had to prove that codeine, which is not specified in either OUI statute or G. L. c. 94C, § 1, qualifies as "narcotic drug" under G. L. c. 94C, § 1); Commonwealth v. Ferola, 72 Mass. App. Ct. 170, 173 (2008) (proof that defendant was operating while under influence of "depressants" insufficient to sustain OUI conviction absent proof that depressant in question was one defined in G. L. c. 94C, § 1).
3. Necessity defense. The defendant claims that the judge erred by refusing to instruct the jury on necessity, a defense that "exonerates one who commits a crime under the 'pressure of circumstances' if the harm that would have resulted from compliance with the law . . . exceeds the harm actually resulting from the defendant's violation of the law." Commonwealth v. Kendall, 451 Mass. 10, 13 (2008), quoting Commonwealth v. Hood, 389 Mass. 581, 590 (1983). "A judge should instruct the jury on necessity only if the defendant has presented 'some evidence on each element of the defense.'" Commonwealth v. Pike, 428 Mass. 393, 400 (1998), quoting Hood, supra at 595. These elements include that the defendant was "faced with a clear and imminent danger, not one which is debatable or speculative," and that "there [was no] legal alternative which [would have been] effective in abating the danger." Kendall, supra at 13-14, quoting Hood, supra at 591.
The defendant did not meet his burden of showing an objectively clear and imminent danger. See Commonwealth v. Lockwood, 95 Mass. App. Ct. 189, 198 n.8 (2019). Though the defendant suggests that he faced such a danger when Officer Kiel rapped on his car window, the defendant failed to present evidence to support this notion. Neither the sole defense witness -- the defendant's brother, who was not present at the scene -- nor testimony elicited by the defendant on cross-examination established that Officer Kiel presented a clear and imminent danger in any objective sense.
The defendant also failed to meet his burden of presenting evidence that there was no available legal alternative that would have effectively abated any danger. See Kendall, 451 Mass. at 15, quoting Pike, 428 Mass. at 401 ("Where there is an effective alternative available which does not involve a violation of the law, the defendant will not be justified in committing a crime"). The defendant presented no evidence that he attempted to comply with Officer Kiel's orders, was unable to do so, or that compliance would have been futile in the circumstances. The defendant could have shut off his car as instructed -- a legal avenue that was available to him and that would have been more effective in abating any danger than fleeing. Even viewing the evidence in the light most favorable to the defendant, see Kendall, supra at 11, we conclude that he failed to meet his burden of laying the requisite evidentiary foundation for a necessity instruction.
Judgments affirmed.
By the Court (Hanlon, Lemire & Shin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 8, 2020.