Opinion
14-P-1482
12-29-2015
COMMONWEALTH v. KENNETH A. KNORR, THIRD.
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, Kenneth A. Knorr, Third, appeals from his conviction of operating under the influence of alcohol, second offense, in violation of G. L. c. 90, § 24(1)(a)(1). On appeal, the defendant contends that (1) the evidence was insufficient to prove beyond a reasonable doubt that the defendant was the operator of the motor vehicle; and, (2) the Amesbury police officer did not have the authority to make a valid arrest. We affirm.
Discussion. 1. Sufficiency of the evidence. The defendant contends that the Commonwealth presented insufficient evidence that he was the operator of the car, rather than his girlfriend, who told the arresting officer that she was the driver. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Platt, 440 Mass. 396, 400 (2003).
To sustain a conviction under G. L. c. 90, § 24(1)(a)(1), the Commonwealth must prove that the defendant (1) operated a vehicle; (2) on a public way; (3) while under the influence of alcohol. See Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). Only the first element is at issue in this appeal.
We consider only the evidence as of the time the Commonwealth rested its case. "[I]n a criminal case, the defendant's rights became fixed at the time that the Commonwealth rested and the defendant's motions for directed verdicts had been denied, even though the defendant chose thereafter to present further evidence." Commonwealth v. Kelley, 370 Mass. 147, 150 n.1 (1976). See Commonwealth v. McCauliff, 461 Mass. 635, 639 n.6 (2012). We therefore do not consider the Commonwealth's rebuttal testimony that the girlfriend later stated that the defendant had been driving earlier in the evening.
The arresting officer, David Noyes, found the defendant in a car in the breakdown lane of Route 495 South in Amesbury. The defendant was in the driver's seat, talking on his girlfriend's pink cellular telephone (cell phone), and did not respond to the officer's initial attempts to speak to him. His girlfriend was in the passenger seat. The headlights were on and the keys were in the ignition in the "on" position, but the car was out of gas and the engine would not start. The car was registered in the defendant's name. The driver's seat was positioned for someone of the defendant's height, which Noyes estimated to be five feet eleven inches. The passenger seat was positioned for someone of the defendant's girlfriend's height, estimated by the officer to be five feet five inches. The defendant told the officer that the seats had not been moved. In addition, the defendant cooperated with field sobriety tests. He denied that he had been driving only after failing the tests.
The defendant relies on Commonwealth v. Leonard, 401 Mass. 470 (1988), and Commonwealth v. Mullen, 3 Mass. App. Ct. 25 (1975), to argue that the evidence was insufficient. The cases are inapposite. In Leonard, supra at 471, passersby noticed the defendant and his wife arguing by the side of the road. The defendant demanded that his wife "[g]ive . . . back" his keys. Ibid. By the time the police arrived, the defendant was in the driver's seat trying to put the key in the ignition, while his wife, who was sitting in his lap, tried to stop him. Ibid. The wife's cigarettes were on the floor on the passenger side of the car. Ibid. This evidence was held insufficient to corroborate his confession that he had been driving the car. Id. at 473. In Mullen, supra at 26, the Commonwealth was unable to surmount the "obvious lacuna" that the defendant had been thrown clear of the car through the passenger side door, while his roommate was found dead in the car as a result of a crushing injury to the chest.
The evidence of operation in the present case is more substantial than that presented in Leonard and Mullen. "Proof of operation of a motor vehicle may 'rest entirely on circumstantial evidence.'" Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006), quoting from Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438 (2002). See Commonwealth v. Cabral, 77 Mass. App. Ct. 909, 909 (2010). The defendant, who owned the car, was found talking on a cell phone in the driver's seat with the key in the ignition in the on position. See Commonwealth v. Petersen, supra (considering, in addition to other evidence, that the defendant had the car keys and was the registered owner of the car). The driver's seat was set to his height, which was substantially different than that of the passenger, and had not been moved. The defendant cooperated with field sobriety tests. See Commonwealth v. O'Connor, 420 Mass. 630, 632 (1995) ("The finder of fact could infer operation from the facts and circumstances surrounding the accident and from the defendant's cooperation with the field sobriety tests"); Commonwealth v. Manning, 41 Mass. App. Ct. 18, 22 (1996) (same). Each piece of evidence is not considered in isolation, but is "[v]iewed as a whole." Commonwealth v. Cabral, supra, quoting from Commonwealth v. Petersen, supra. When so considered, the evidence presented here was sufficient to permit a jury to find that defendant operated the motor vehicle.
The Commonwealth also urges us to hold that the defendant's efforts to turn on the car after it had run out of gas is a separate ground on which to affirm the conviction. See Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 645-650 (2011). The defendant argues that the motor vehicle was mechanically inoperable as a matter of law and that the Commonwealth therefore could not sustain a conviction for operating under the influence of alcohol under G. L. c. 90, § 24(1)(a)(1), based solely on the officer's testimony that the defendant had turned the key. In light of our disposition, we need not reach this issue.
2. Extraterritorial arrest. For the first time on appeal, the defendant argues that Amesbury police committed an improper extraterritorial arrest and therefore lacked the authority to arrest him. See G. L. c. 41, § 98A. See also Commonwealth v. Grise, 398 Mass. 247, 250 (1986). Cf. Commonwealth v. Bartlett, 465 Mass. 112, 115-116 & n.4 (2013).
"'In a criminal case, any . . . objection based upon defects . . . in the complaint or indictment, other than a failure to show jurisdiction in the court or to charge an offense, shall only be raised prior to trial . . . .' G. L. c. 277, § 47A. Failing to object to such a defect prior to trial ordinarily waives any argument pertaining to that defect." Commonwealth v. Lamont L., 438 Mass. 842, 845 (2003). Because the question whether the defendant operated the car while in Amesbury goes only to the power to arrest and not to the elements of the offense, this issue should have been raised in a pretrial motion. See Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004); G. L. c. 277, § 47A; Commonwealth v. Rotolo, 45 Mass. App. Ct. 927, 928 (1998).
The defendant does not argue that the issue is jurisdictional. We treat the contention as one directed to the authority of the officer to effectuate an arrest. See Commonwealth v. Edwards, 71 Mass. App. Ct. 716, 719 (2008).
The Commonwealth maintains that the failure to file a motion to suppress resulted in a waiver that precludes appellate review on direct appeal. We need not decide whether the failure to raise this issue before trial constituted a waiver of appellate review, rather than a waiver subject to review for a substantial risk of miscarriage of justice, because we conclude, for the reasons stated above, that the evidence was sufficient to permit a jury to find that the defendant operated the car at the time it ran out of gas in Amesbury. For this reason, even under the more lenient standard, there was not an improper extraterritorial arrest, much less an error rising to the level of a substantial risk of miscarriage of justice.
Some cases state, with little or no discussion, that the failure to file a motion to suppress (particularly one necessitating an evidentiary record) constitutes a waiver on direct appeal under G. L. c. 277, § 47A, or Mass.R.Crim.P. 13(a)(2). See Commonwealth v. Craan, 469 Mass. 24, 26 n.2 (2014); Commonwealth v. Edwards, 71 Mass. App. Ct. 716, 719 (2008). See also Commonwealth v. Hrycenko, 417 Mass. 309, 312 & n.3 (1994); Commonwealth v. Bell, 455 Mass. 408, 412 n.6 (2009); Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 48 (2011). Other cases consider grounds not raised below on a motion to suppress under a substantial risk of miscarriage of justice standard. See Commonwealth v. Johnston, 60 Mass. App. Ct. 13, 20-21 & n.7 (2003) ("We are not obliged on appeal to address new arguments in support of rule 13 motions to suppress that were not argued before the trial judge"). See also Commonwealth v. Fernandes, 430 Mass. 517, 521 n.13 (1999) (challenge to sufficiency of indictment reviewed for substantial risk); Commonwealth v. Donoghue, 23 Mass. App. Ct. 103, 109-110 (1986) (same). Cf. Commonwealth v. St. Louis, 473 Mass. , (December 23, 2015) (slip op. at 8) (where defendant did not raise facial challenge to statute based on vagueness in pretrial motion to dismiss, court reviewed for substantial risk of miscarriage of justice).
Judgment affirmed.
By the Court (Kafker, C.J., Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 29, 2015.