Opinion
15-P-492
05-02-2016
COMMONWEALTH v. MICHAEL R. JACKSON.
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
The defendant was convicted after a bench trial of operating a motor vehicle on a public way without a "certified functioning ignition interlock device," in violation of G. L. c. 90, § 24S(a), inserted by St. 2005, c. 122, § 17. He appeals on the grounds that (1) there was insufficient evidence to establish the public way element of the offense, and (2) the Commonwealth's proof that his license was restricted at the time of the offense was based on inadmissible hearsay. For reasons detailed herein, we affirm.
Background. Around 5:00 P.M. on May 28, 2012, off-duty Andover police Officer Matthew Hughes was golfing at the Indian Ridge Country Club when he heard a loud noise. Hughes then observed a small red car with a noisy exhaust briefly enter the club parking lot over a way that connects to Iroquois Avenue, and then quickly exit the parking lot and travel back to Iroquois Avenue by the same route. About forty-five minutes later, Hughes was walking near the third hole of the golf course when he saw the same car speed down Iroquois Avenue and turn into the country club parking lot. According to Hughes, the car nearly cut off another driver and proceeded to do "doughnuts" inside the parking lot despite the presence of adults and children in the vicinity. At that point, Hughes stopped the vehicle, a 1970 Lotus racecar, driven by the defendant, from exiting the parking lot and called for back-up. Andover police Officer Brian Blouin responded. The defendant admitted to Officer Blouin that he had been driving the vehicle. Officer Blouin arrested the defendant after determining that his license contained a restriction allowing him to operate only vehicles equipped with a certified functioning ignition interlock device, and that the Lotus was not so equipped.
Discussion. 1. Motion to dismiss. The defendant challenges the denial of his motion to dismiss the complaint and the denial of his motion for reconsideration on ground that there was no probable cause to believe he operated a motor vehicle on a public way as required by G. L. c. 90, § 24S. This is a "very limited remedy" designed to ensure that the material submitted in support of the application for the complaint is sufficient to establish the identity of the offender and probable cause to arrest him. Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111 (2013). See Commonwealth v. Humberto, 466 Mass. 562, 565 (2013).
In this case, the application for a complaint was supported by Officer Blouin's police report, which contained facts observed by a percipient witness, his colleague, Officer Hughes; the defendant's admission that he operated the vehicle; and Registry of Motor Vehicles records. These facts provided ample support as to the existence of each element of the crime charged: (1) operation of a motor vehicle; (2) upon a public way; (3) without a certified functioning ignition interlock device; (4) when one was required. The motion judge's determination that there was probable cause was sound, and her denial of the motion to dismiss was not error.
2. Sufficiency of the evidence at trial. (a) Public way. The defendant maintains that the evidence offered by the Commonwealth at trial was insufficient to establish that he operated a motor vehicle on a public way. His reliance on Commonwealth v. Virgillio, 79 Mass. App. Ct. 570, 574 (2011), where we held that held that a private driveway and parking area within which the defendant was operating her vehicle was not a way to which members of the public had access as invitees or licensees, is misplaced. There was testimony at trial that the way leading from Iroquois Avenue to the club parking lot was used by members of the public who had access to the pro shop and the restaurant. There also was evidence that this way has the objective appearance of being open to the public. The judge found there were no "members only" or "no trespassing" signs, and that there was curbing and pavement, indicating public access. Finally, the defendant's argument fails to acknowledge that proof of operation on a public way may be circumstantial. See Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006).
According to the testimony of a registered land surveyor, who conducted a survey of the country club and surrounding land, the driveway of the country club commenced where Iroquois Avenue ended, about twenty-five feet in front of the country club's sign. Where, as here, a defendant is found with his vehicle in a place that is accessible only by use of a public way, it is a reasonable inference that the defendant used the public way to get there. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010). In this case, the judge was warranted in finding beyond a reasonable doubt that the defendant operated his motor vehicle on Iroquois Avenue before entering the club parking lot.
(b) Proof that the defendant was required to have a functioning ignition interlock device. The defendant also contends that there was insufficient evidence to prove he was subject to an ignition interlock device requirement. At trial, over the defendant's objection, the Commonwealth introduced the defendant's "Ignition Interlock Operator's Affidavit" in which he acknowledged that as of December 8, 2011, he knew that he was "required to have an [i]gnition [i]nterlock [d]evice installed in all vehicles that [he] own[ed], lease[ed], or operate[d]." The defendant's affidavit was not hearsay because it falls within a settled exception to the hearsay rule. See Mass. G. Evid. § 801(d)(2) (2016) (admission of a party-opponent).
The defendant also complains that Officer Blouin's testimony that he had a "Z restriction" on his license was inadmissible hearsay. However, the description of the defendant's license restriction was not offered for the truth of the matter, but to establish why the officer checked the vehicle for an ignition interlock device, and subsequently, arrested the defendant.
Judgment affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 2, 2016.