Opinion
No. 11–P–1933.
2012-10-2
COMMONWEALTH v. Junior HENRIQUEZ.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a conviction of operating a motor vehicle under the influence of intoxicating liquor. He contends that the judge abused his discretion in allowing in evidence the results of a field sobriety test and that the Commonwealth offered insufficent evidence to sustain his conviction. We affirm.
During this jury-waived trial, the defendant challenged, on voir dire and during cross-examination, the accuracy and reliability of a field sobriety test conducted at a sobriety checkpoint, the instructions for which were administered by one State police trooper, but translated to the defendant by an accompanying State police trooper. Following voir dire, the judge permitted the troopers' observations and conclusions to be introduced in evidence. In summary, we discern no error in the judge's conclusion that the translation was adequate. He noted that, while translation may “make[ ] it more difficult,” the information translated was relatively straightforward, the steps a driver is asked to perform are “really rather simple,” and the tasks being explained were also demonstrated. Moreover, the defendant had some ability to converse in English, did not indicate any lack of understanding of the test instructions or ask that any be repeated, and understood the instructions sufficiently to succeed in one of the tests, at least. Moreover, the police officers' observations of the defendant's coordination during the tests, which led to their determination of his failure on one of the tests, were not related to any difficulties that the defendant contends he was experiencing with the translation. The judge correctly ruled that any deficiencies in the translation or the failure to follow the manual went to the weight of the evidence, not to its admissibility. See Commonwealth v. Schutte, 52 Mass.App.Ct. 796, 801 (2001) (officer's opinion that the defendant did not pass a field sobriety test could be impeached but not precluded).
Specifically, the defendant contends that the judge should have excluded as unreliable the results of the nine-step walk and turn test, which the defendant failed. To support the insufficiency of the evidence to support his conviction, discussed infra, however, the defendant points to the fact that he passed the one-legged stand test, although it was apparently administered and translated in the same manner as the nine-step walk and turn test.
The defendant's contention that the Commonwealth did not introduce sufficient evidence of his impairment is without merit. To convict a defendant of operating a motor vehicle under the influence of intoxicating liquor, the Commonwealth “must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely. The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely.” Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Moreover, “[w]hen analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ “ Commonwealth v. Hartnett, 72 Mass.App.Ct. 467, 475 (2008), quoting from Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 152 (1999). “Rather, the relevant ‘question is 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.’ “ Commonwealth v. Pixley, 77 Mass.App.Ct. 624, 630 (2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Here, while the Commonwealth's evidence did not include any observations of unsafe driving by the defendant (but see Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 321 (1994)), he was observed to have a moderate odor of alcohol on his breath, glassy and bloodshot eyes, and slurred speech; his responses to questions about alcohol consumption were evasive and inconsistent, and he appeared unsteady on his feet, swaying from side to side. These observations were in addition to those made during the field sobriety testing. Following his arrest, testimony further revealed indicators of intoxication, such as the defendant's combative behavior in conjunction with his use of profanity and a mostly empty bottle of alcohol which was found in the front seat of his car. See, e.g., ibid. Based on the above, the evidence was sufficient to sustain the finding of guilt.
Judgment affirmed.