Opinion
14-P-215
03-19-2015
COMMONWEALTH v. JOHN KENNY.
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
After a jury trial, the defendant, John Kenny, was found guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI), negligent operation of a motor vehicle, and leaving the scene of property damage. The defendant waived his right to a jury and the judge found the defendant guilty of OUI, fourth offense. The defendant appeals, arguing that the judge erred in not giving a missing witness instruction and a specific unanimity instruction. We affirm.
The defendant sought a missing witness instruction because the Commonwealth did not call as a witness the officer who administered the field sobriety tests. The officer's testimony would have been cumulative of the testimony of another officer who had witnessed the field sobriety tests and made other observations of the defendant at the stop, and the Commonwealth's case was strong on this point. See Commonwealth v. Tripolone, 57 Mass. App. Ct. 901, 901 (2003). The defendant also argued the absence of the witness in his closing argument. The judge did not abuse his discretion by failing to give the instruction.
There was also no error in failing to provide a specific unanimity instruction. The defendant did not seek such an instruction, so even if there were error our review would be limited to a substantial risk of a miscarriage of justice. Here, there was no requirement that the jury agree unanimously on which discrete facts of the defendant's operation of his vehicle constituted negligent operation. The prosecution was based on the entirety of the defendant's conduct, beginning with the collision. Commonwealth v. Santos, 440 Mass. 281, 285 (2003). Furthermore, the prosecution proceeded on a single theory of negligent operation and the judge properly instructed the jury on negligence. The judge did not err in failing to provide the jury with a specific unanimity instruction.
Judgments affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 19, 2015.