Opinion
20-P-39
12-15-2020
COMMONWEALTH v. JUSTIN T. JOYCE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from his conviction by a District Court jury of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a) (1), which was found to be his third such offense at a subsequent jury-waived trial. On appeal, he argues that there was insufficient evidence to support (1) the jury's finding that his ability to drive safely was impaired, and (2) the judge's finding that this was his third offense, requiring a greater sentence. We affirm.
1. Impairment. In an OUI prosecution, "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). Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence of impairment was sufficient.
On February 17, 2018, at 1 A.M., a police officer saw a Jeep driven by the defendant slam on its brakes and narrowly avoid crashing into the rear end of another vehicle that had stopped to make a left turn. As the Jeep drove away, the officer followed in his cruiser and observed the Jeep drive several hundred yards while straddling the double yellow line in the middle of a narrow street. The Jeep then turned onto another street, where the tires on its right side crossed over the fog line several times. The officer activated his blue lights and the Jeep stopped.
The officer asked the defendant for his license and registration; the defendant produced the former but not the latter. After the officer asked again for the registration, the defendant said he would get it, but then just sat and stared at the officer. The defendant's speech was garbled and difficult to understand. Asked if he had been drinking, the defendant admitted that he had. Asked how much he had had to drink, the defendant stated that he had consumed three drinks. Asked what kind of drinks he had had, the defendant stated again that he had had three drinks. The officer re-asked the question, and the defendant apologized and said that he had been drinking beer.
The officer smelled a strong odor of an alcoholic beverage coming from the Jeep, and he noticed that the defendant's eyes were bloodshot. The officer asked a third time for the Jeep's registration, and the defendant finally produced it. The officer then asked the defendant if he would submit to field sobriety tests, and the defendant agreed.
When asked to recite the alphabet from A to Z, the defendant reached the letter T but then "rambled off some random letters and then stopped." In preparation for the next test, the officer asked the defendant if he had any issues that would affect his balance and coordination; the defendant replied that he had arthritis in his ankle. The officer asked if that would affect the defendant's ability to walk in a straight line or to stand on one foot, and the defendant said it would not, that he would take the straight line test. The defendant was not able to follow the officer's instructions for the test; he also tripped or stumbled several times during the test, and "was obviously having difficulty standing." Based on all of the foregoing, the officer formed the opinion that the defendant was under the influence of alcohol and arrested him.
The defendant testified and offered innocent explanations or conflicting versions of the events as related by the officer. It was for the jury to decide how much, if any, of each witness's testimony to credit.
The officer's testimony was sufficient to permit the jury to find beyond a reasonable doubt that "the defendant's consumption of alcohol diminished [his] ability to operate a motor vehicle safely." Connolly, 394 Mass. at 173. The defendant's argument to the contrary erroneously asserts that the evidence "consisted only of the lay opinion testimony of [the officer], based on a brief interaction with [the defendant] on the side of a dark road." The officer testified not only to his opinion that the defendant was "under the influence," as permitted by Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389 (2017), but also to his direct observations of the defendant's somewhat erratic driving, garbled speech, bloodshot eyes, admission that he had consumed three drinks, inability to follow directions, inability to perform field sobriety tests, and to the odor of an alcoholic beverage emanating from the defendant's Jeep. Precisely this sort of testimony is routinely held sufficient to prove impairment. See, e.g., id. at 390-391. The defendant suggests that such "lay observational testimony of intoxication, without more," cannot be sufficient, but none of the many cases he cites remotely supports this proposition.
The defendant errs in arguing that, under Commonwealth v. Riley, 48 Mass. App. Ct. 463 (2000), the Commonwealth must further prove that he had "consumed enough alcohol to reduce his mental clarity, self-control, and reflexes." Id. at 465. Riley clearly states that these are additional factors or examples of impairment that a jury may consider, but none of them need be proven. Id.
See, e.g., Commonwealth v. AdonSoto, 475 Mass. 497 (2016); Commonwealth v. Rarick, 87 Mass. App. Ct. 349 (2015); Commonwealth v. Saulnier, 84 Mass. App. Ct. 603 (2013).
2. Prior offenses. The defendant argues that the evidence at the jury-waived portion of the trial was insufficient to prove beyond a reasonable doubt that this was his third OUI offense, i.e., that he had been "previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense" of which the jury here convicted him. G. L. c. 90, § 24 (1) (a) (1). Specifically, the defendant argues that a certified copy of a docket sheet showing that a 2001 OUI charge against him had been continued without a finding (CWOF) based on an admission to sufficient facts on April 17, 2001, and later dismissed, was insufficient to prove that he had been either "convicted" or "assigned to an alcohol . . . education, treatment, or rehabilitation program."
Also admitted in evidence at the jury-waived portion of the trial, however, was a certified copy of the defendant's Registry of Motor Vehicles (RMV) record. Included in that record was a May 7, 2001 letter from the RMV to the defendant, informing him that the RMV had received notice from the Plymouth District Court that as part of the disposition of an OUI offense on April 17, 2001, "THE COURT HAS ASSIGNED YOU TO AN ALCOHOL EDUCATION PROGRAM." Thus, assuming arguendo that proof of such an assignment was necessary here, the RMV record was sufficient to permit the judge to find beyond a reasonable doubt that the defendant had been assigned to such a program. As the defendant does not challenge the sufficiency of the separate evidence that, after another incident in 2002, he was convicted of OUI in 2004, there was sufficient evidence that the present conviction was the defendant's third.
Under G. L. c. 90, § 24 (1) (d), as amended by St. 2012, c. 139, § 98, "[f]or the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or admits to a finding of sufficient facts" (emphasis added). If the defendant's 2001 admission to sufficient facts triggered this statute, then the question whether he was also assigned to an alcohol education program would appear to be moot. In light of the evidence that the defendant was in fact so assigned, we need not address the application of § 24 (1) (d), as amended in 2012.
Judgment affirmed.
By the Court (Rubin, Wolohojian & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 15, 2020.