Opinion
14-P-1336
03-25-2016
COMMONWEALTH v. WILLIAM GALLINARO.
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
Following a jury trial in District Court, the defendant was convicted of operating a motor vehicle while under the influence of liquor (fourth violation), leaving the scene of a motor vehicle accident causing injury to property, operating a motor vehicle with a suspended license, and refusing to identify oneself to a police officer. We affirm.
The subsequent offender portion of the charge was tried jury waived.
A marked lane violation was filed with the defendant's consent, and the judge allowed a motion for a required finding as to a trespass charge.
Background. On May 16, 2013, at approximately 2:15 in the morning, police found a van that had crashed into a guardrail pole on Route 3 in Billerica. The vehicle was still running but unattended. They located a man, later identified as the defendant, walking down Route 3 about a half-mile away. The defendant was "erratic and agitated," his speech was slurred, his eyes were bloodshot, his breath strongly smelled of alcohol, and he was unsteady on his feet. He also smelled of fecal matter, as did the interior of the vehicle. Mail addressed to the defendant was found inside the center console of the vehicle. Three times, the defendant initially identified himself to the police as "Penelope." He later told police that a woman from Pennsylvania had been driving the van. When police asked him to identify or describe the woman, he could not do so.
The responding officer testified that "there was a strong odor of fecal matter as soon as I opened the [driver's side] door."
Sufficiency. There is no merit to the defendant's contention that the Commonwealth's evidence was insufficient to support a conviction of operating under the influence. In evaluating the sufficiency of the evidence, we, of course, view it in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Measured against that standard, there plainly was ample evidence that the defendant was intoxicated. See, e.g., Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011), and cases cited. There also plainly was ample evidence that the defendant had been in the van when it crashed; indeed, he all but admitted as much. The only question that can fairly be debated is the sufficiency of the evidence that he, as opposed to someone else, was operating the vehicle when it crashed. Given that the defendant apparently had soiled himself and a fecal smell emanated from the van, that his mail was found in the center console, that no other potential driver was found in the vicinity, and that the defendant was unable to identify or describe the person he claimed was driving the van, there was evidence on which rational jurors could have concluded, beyond a reasonable doubt, that the defendant was the operator. See Commonwealth v. Congdon, 68 Mass. App. Ct. 782, 783 (2007). See also Commonwealth v. Lavendier, supra at 507 n.6. See generally, Commonwealth v. Beltrandi, 89 Mass. App. Ct. 196, 199 n.4 (2016), and cases cited.
The defendant highlights uncontested evidence that once the police found the defendant wandering down Route 3, they stopped looking for anyone else. While this may be an evidentiary point in the defendant's favor, it does not render the evidence of the defendant's guilt legally insufficient.
For purposes of addressing the sufficiency of the Commonwealth's evidence, we consider all the evidence that was admitted, regardless whether its admission was proper. See Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), citing Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
Testimony regarding seat position. Without objection, a State trooper testified at trial that he observed the position of the van's driver's seat and that it was "pushed forward for someone that's a lot shorter than I am, smaller-in-stature driver." There is no merit to the defendant's claim that this amounted to improper expert testimony from someone who had not been qualified as an expert. See Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 349 (2012) (discussing permissible lay opinion testimony). There was thus no error, much less a substantial risk of a miscarriage of justice.
The defendant did file a pretrial motion in limine seeking to exclude testimony that the seat had been positioned to accommodate someone of the defendant's height. The filing of that motion without more did not preserve an objection to the testimony the officer gave at trial. See Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998). We also note that the testimony actually provided was consistent with the judge's ruling on the motion in limine.
The defendant also points out that in her opening statement, the prosecutor told the jury, again without objection, that a trooper would testify to how the driver's seat was "positioned and [that] the distance away from the brake is similar to someone of the defendant's height." Although this characterization of what the trooper would say at least comes closer to expert testimony (and arguably was inconsistent with the judge's ruling on the motion in limine), such a reference does not come close to having created a substantial risk of a miscarriage of justice. In this regard, we note that the positioning of the seat was not inconsistent with the defense pressed by the defendant at trial (that an unidentified woman had been driving).
Testimony as to ultimate issue. In response to a question, a trooper testified that he had "formed the opinion that [the defendant] was operating under the influence of --." The defendant objected before the answer even had been completed. The objection was sustained, and the judge immediately instructed the jury to disregard the question. The testimony to which the defendant now objects was therefore not admitted in evidence, and "[j]urors are presumed to follow a judge's instructions, including instructions to disregard certain testimony." Commonwealth v. Vallejo, 455 Mass. 72, 84 (2009), quoting from Commonwealth v. Williams, 450 Mass. 645, 651 (2008).
The defendant also points out that a different trooper testified, without objection, that he had formed the opinions that the defendant "was operating the vehicle at the time of the crash" and that the defendant "was under the influence of intoxicating liquor." The Commonwealth argues that the trooper's testifying separately to these opinions did not cross the line the Supreme Judicial Court drew in Commonwealth v. Canty, 466 Mass. 535, 542-544 (2013). We need not decide that question, because the opinion testimony did not in any event create a substantial risk of a miscarriage of justice. Since the jury knew that the defendant had been charged with driving under the influence of alcohol, they would hardly be surprised to hear that the arresting officer believed that the defendant had in fact driven under the influence.
Reference to chemical consent form. In his testimony, one trooper made a passing reference to his having read to the defendant a "chemical consent form." The defendant objected and the objection was sustained, thus the testimony that the defendant now claims was error was never admitted. Although the judge did not provide a contemporaneous curative instruction (the defendant never having asked for one), she did generally instruct the jury at the commencement of trial that they were to disregard a question and response if an objection were sustained. In addition, we agree with the Commonwealth that the passing reference to a "chemical consent form" did little to imply that the defendant had refused to take a breathalyzer test.
Post-Miranda "silence." The defendant argues that the testimony and the prosecutor's opening statement -- both admitted without objection -- that he was not "able to provide" to police a name or description of the woman whom he said had been driving the van amounts to improper comment on his right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 617-618 (1976). We disagree. Based on what is before us, there is no indication that the defendant, who had begun freely to speak with the police to assert a defense, had invoked his right to remain silent by expressing an "unwillingness to continue." Commonwealth v. James, 427 Mass. 312, 314 (1998), quoting from Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984) (once a defendant has waived his Miranda rights, "[t]o terminate questioning, 'there must be either an expressed unwillingness to continue or an affirmative request for an attorney'"). Contrast Commonwealth v. Smith, 473 Mass. 832, 841 (2016) (defendant's response "'I'm done talking. I don't wanna talk no more' . . . asserted in no uncertain terms the defendant's desire and intention to end the interrogation"). Once a defendant has waived his Miranda rights and has not cut off questioning, he "could not 'pick and choose,' because 'if he talks, what he says or omits is to be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can later be referred to.'" Commonwealth v. Senior, 433 Mass. 453, 463 (2001), quoting from United States v. Goldman, 563 F.2d 501, 503 (1st Cir. (1977), cert. denied, 434 U.S. 1067 (1978). There was no error.
Judgments affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: March 25, 2016.