Opinion
10-P-1753
12-08-2011
COMMONWEALTH v. DAVID W. FLYNN.
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
After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI) in violation of G. L. c. 90, § 24(1)(a)(1). On appeal he claims there was insufficient evidence to support his conviction, that his admission of intoxication was not corroborated, and that the judge's jury instruction improperly invaded the province of the jury. We affirm.
1. The defendant claims that there was insufficient evidence to support the element of operation to sustain his OUI conviction. We disagree. From the evidence that the witness heard the sound of spinning tires outside his house, the police finding only the defendant standing next to the car that was stuck in a snow bank, in the middle of the night, in the middle of winter, the jury were entitled to infer, utilizing common sense, that the defendant had been the operator. See Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976) ('Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense'). Moreover, the fact that the defendant agreed to perform field sobriety tests lends further support to the jury's conclusion that he was the operator. See Commonwealth v. Manning, 41 Mass. App. Ct. 18, 22 (1996).
The defendant's further claim, that the Commonwealth failed to prove that no one else could have driven the car, overstates the Commonwealth's burden. The prosecution does not possess 'an affirmative duty to rule out every hypothesis except that of guilt . . . .' Jackson v. Virginia, 443 U.S. 307, 326 (1979). See Commonwealth v. Platt, 440 Mass. 396, 401 (2003).
2. The defendant's claim that his uncorroborated admission of being intoxicated cannot furnish proof to satisfy the element of impairment is frivolous. 'The corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary.' Commonwealth v. Forde, 392 Mass. 453, 458 (1984). Although the defendant was able to recite the alphabet, he could not perform the 'count down' test, nor could he successfully complete the 'one-legged stand' test. In addition, the officer found an open bottle of vodka in the car, the defendant smelled of alcohol, his eyes were extremely bloodshot, and his speech was slurred. The defendant's intoxication was not imaginary.
3. The defendant's final claim is that the judge's instruction on the use of documentary evidence invaded the jury's fact-finding province. Specifically, the defendant claims the judge erred in his instruction on the jury's use of a weather document by his noting that the wind conditions in Hyannis might be 'totally different' from other locations on Cape Cod. The defendant did not object to the judge's instruction. Even if the judge's comment was better left unsaid, he also told the jury that they were the sole judges of the credibility of evidence and that they should not consider any comments he made during his instructions as an opinion on the defendant's guilt. There was no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Grasso, Smith & Meade, JJ.),