Opinion
20-P-194
12-17-2020
COMMONWEALTH v. BOBBIEJEAN LABRIE.
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
After a jury trial, the defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor as a second offense, G. L. c. 90, § 24 (1) (a) (1). The defendant argues that the evidence was insufficient to establish that she had been operating the motor vehicle in which she was found or that she was under the influence of alcohol. She further argues that a substantial risk of a miscarriage of justice arose when a police witness opined that the defendant was "operating under the influence." We affirm.
After the jury found the defendant guilty of operating under the influence of intoxicating liquor, the defendant pleaded guilty to the second offense portion of the charge.
1. Required finding. We review the sufficiency of the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In order to prove the offense of operating under the influence of alcohol, the Commonwealth was required to establish that the defendant was (1) operating a motor vehicle, (2) on a public way, (3) while under the influence of intoxicating liquor. See G. L. c. 90, § 24 (1) (a) (1). See also Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 728 (2016), citing Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995).
On appeal, the defendant does not contest the element of public way. The evidence at trial established that the offense took place in a Dunkin Donuts parking lot. See Commonwealth v. Cabral, 77 Mass. App. Ct. 909, 910 (2010), quoting G. L. c. 90, § 24 (1) (a) (1) ("public way" is "any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees").
a. Operation. As to operation, the Commonwealth presented evidence that the car was running when police arrived on scene. Combined with the fact that the defendant was unconscious behind the wheel, this was sufficient circumstantial evidence that the defendant had been operating the motor vehicle. "An individual 'operates' a motor vehicle within the meaning of G. L. c. 90, § 24, 'when, in the vehicle, [she] intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.'" Commonwealth v. Beltrandi, 89 Mass. App. Ct. 196, 198-199 (2016), quoting Commonwealth v. Ginnetti, 400 Mass. 181, 183 (1987). See Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006). Proof of operation of a motor vehicle may rest entirely on circumstantial evidence. See Beltrandi, supra at 198.
On appeal, the defendant argues that the police officer's testimony that the car was "running" was insufficient, because it was unaccompanied by any explanation as to how the officer concluded that the car was running. First, the officer's testimony that the car was "running" was not a conclusion that required any specific foundation. Rather, it was a permissible summary description of observed facts. See Mass. G. Evid. § 701 note (2020), citing Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 641 (1961). Second, the question of operation here did not rest upon the car "running." Even if the car had not been running at the time, there was sufficient circumstantial evidence that the defendant had recently operated the car to the point where it came to rest.
The officer also testified that "the keys were still in the ignition," although the defendant's boyfriend testified that the car had no key ignition; rather, it was a keyless ignition which turned on and off by way of a push button key fob. It was for the jury to resolve this discrepancy. See Commonwealth v. Lopez, 484 Mass. 211, 215 (2020).
We note that the defendant did not object at trial to the officer's testimony that the car was running or seek to establish a foundation for that testimony.
The police received a 911 call at approximately 6 P.M. for an unconscious woman in a car outside of a Dunkin Donuts. Police arrived to find the car, not in a parking spot, but in an area that blocked entry and exit to the parking lot of the establishment. A crowd had gathered around the vehicle, while the defendant remained alone in the vehicle, in the driver's seat. From these facts, it was reasonable for the jury to infer that the defendant had recently driven the car to the point at which it stopped. See Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 650 (2011) (defendant found slumped over steering wheel with key in ignition but engine not engaged). See also Commonwealth v. Hilton, 398 Mass. 63, 67 n.5 (1986), quoting State v. Pritchett, 53 Del. 583, 598-599 (Del. Sup. Ct. 1961) ("[d]efendant's car didn't reach the position where it was found by some magical process; no figure from outer space dropped it from the sky").
b. Under the influence of alcohol. The defendant also argues that the evidence was insufficient to establish that she was under the influence of alcohol, because the police officer testified that her condition was consistent with being ill or sleepy. She acknowledges, however, that the police officer also testified that she exhibited signs of alcohol intoxication including smelling of alcohol, bloodshot eyes, lethargic speech and movements, and the inability to stand or walk on her own. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-993 (2017) (evidence of "classic symptoms of alcohol intoxication"). In addition, the officer testified that there were four or five nip bottles of alcohol in the front of the car, all but one of which were empty. The defendant argues that the evidence tended equally to sustain either of two inconsistent propositions, such that "neither of them can be said to have been established by legitimate proof." Commonwealth v. Shea, 324 Mass. 710, 713 (1949). However, "[t]his principle applies only in circumstances in which, even viewing the evidence in the light most favorable to the Commonwealth, 'choosing among the possible inferences from the evidence presented,' would require a jury 'to employ conjecture.'" Commonwealth v. Tavares, 484 Mass. 650, 655 (2020), quoting Commonwealth v. Croft, 345 Mass. 143, 145 (1962). Here, no conjecture was required for the jury to reach the conclusion that the defendant was under the influence of alcohol.
2. Opinion on ultimate issue. The defendant contends that a police officer's testimony that the defendant was "operating under the influence" was an impermissible opinion on the ultimate issue that prejudiced her. As the defendant failed to object, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). At the outset, we note that the question posed to the officer was proper as it sought the officer's lay opinion as to the defendant's sobriety. See Commonwealth v. Canty, 466 Mass. 535, 540 (2013) (police officers as lay witnesses may testify in criminal cases as to individual's sobriety).
As the Commonwealth concedes, however, the officer phrased his answer in a manner that violated the rule against opinion evidence on the ultimate issue in the case. See id. at 544. After giving his opinion that the defendant was "operating under the influence," the officer reviewed his observations concerning the defendant's sobriety and then added, "she was basically really under the influence, in my opinion." Thus, it appears that the thrust of the officer's testimony was to express the level of the defendant's intoxication. That the opinion was not received as one on the ultimate issue in the case is somewhat supported by the lack of objection. See Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 313 (2011) (lack of objection is some indication that tone and manner of statement did not appear at trial to be as prejudicial as argued on appeal).
Moreover, the evidence at trial, that the defendant was impaired to drive as a result of alcohol intoxication, was strong. Not only did the defendant exhibit classic signs of alcohol intoxication, she had multiple open bottles of alcohol nip bottles in the front seat of her car. In addition, she was found alone in the driver's seat of her car, passed out in the middle of a commercial parking lot during regular business hours, impeding the flow of traffic. This strong evidence, supported by the judge's instructions that the jurors were "the sole and exclusive judges of the facts," that they "alone determine[d] what evidence to believe," and that they were "the sole judges of the credibility" of witnesses, sufficed to avert any substantial risk of a miscarriage of justice. See Gallagher, 91 Mass. App. Ct. at 390 (in face of strong evidence and specific jury instructions, trooper's erroneous testimony on ultimate issue did not cause prejudice).
Judgment affirmed.
By the Court (Rubin, Singh & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 17, 2020.