Opinion
11-P-84
03-30-2012
COMMONWEALTH v. CHRISTOPHER MACMILLAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1), and negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). Police found the defendant and his car in a ditch just off the MBTA train tracks near the Ashland station. On appeal the defendant argues that (1) his motion for a required finding of not guilty, made pursuant to Mass.R.Crim.P 25(a), as amended, 420 Mass. 1502 (1995), should have been allowed because there was insufficient evidence that he operated a vehicle on a public way; (2) the trial judge erred by not sua sponte making a determination of the voluntariness of the defendant's statements to police; and (3) the prosecutor's closing argument improperly referred to facts not in evidence. We affirm. 1. Sufficiency of the evidence. The Commonwealth was required to prove, beyond a reasonable doubt, that the defendant operated a vehicle on a public way. There appears to be no dispute that the defendant must have arrived at his ultimate destination (with the car's nose down in a ditch) by traveling on the MBTA track, which is not a public way for these purposes. See Commonwealth v. George, 406 Mass. 635, 637 (1990) (for purposes of G. L. c. 90, § 24, a public way is one 'to which members of the public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle '). Because there was no direct evidence (i.e., no eye witness) of how the defendant drove on to the MBTA track, and the evidence showed that some entrances to the track might not be public ways, the defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he operated the vehicle on a public way. We consider the evidence in the light most favorable to the Commonwealth to determine whether a rational trier of fact could have concluded beyond a reasonable doubt that he did so. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
The trial judge allowed the defendant's motion to dismiss the charge of leaving the scene of an accident causing property damage, G. L. c. 90, § 24(2)(a).
Operation of a motor vehicle on a public way is an element of both OUI and negligent operation. Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995) (OUI). Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004) (negligent operation).
Police found the intoxicated defendant next to the MBTA train tracks in Ashland. He was alone and trying to operate the car while standing outside of it, pressing his hand on the accelerator. The car was nose down in a ditch with its rear suspended in air. There was no apparent way for the car to have reached its resting spot other than by having been driven there via the tracks. The defendant could not recall or explain how he had gotten himself in the spot and situation in which the officers found him, but he informed them that he had had some drinks at the Chef Orient restaurant in Framingham earlier that evening. The defendant's blood alcohol content was .14 percent when tested later at the police station.
The defendant does not challenge the fact of his intoxication.
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The judge was not required to infer that someone other than the defendant had operated the vehicle. The defendant was the only person present when the officers arrived, he admitted that he had driven the car earlier, and there was no indication that anyone else had been in the car while en route to the ditch. All of the circumstances support the reasonable inference that it was the defendant who had operated the car. Nor was the judge required to infer that the defendant drove only on nonpublic ways from the moment he left the restaurant in a different town to his terminus in the ditch. The evidence was that the restaurant is in a different town from the scene of the accident, see Nantucket v. Beinecke, 379 Mass. 345, 352 (1979) (judicial notice may be taken of the geographic size and location of a town), and it is not within the two-mile loop around the scene of the accident. It is not reasonable to infer that the defendant drove only on nonpublic ways given the distances involved. Moreover, there was testimony that, although there are a number of nonpublic ways in Ashland from which the defendant could have driven directly onto the tracks, in order to get to any of those from Framingham, the defendant would have had to have driven on a public way. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 831-835 (2010) (sufficient evidence of OUI where defendant was seen driving on private pier that could not be reached by car except by public way).
2. Voluntariness. The defendant argues that the trial judge was required sua sponte to make a ruling on the record as to the voluntariness of the defendant's statements to the police at the scene. We disagree. The trial judge must make a voluntariness determination only if the defendant raises the issue or involuntariness is a live issue at trial. Commonwealth v. Brown, 449 Mass. 747, 765 (2007). After making a pretrial motion to suppress these statements (which was not ruled on), the defendant never raised the issue of voluntariness again. Defense counsel never objected to questions or moved to strike testimony about the defendant's statements and used the evidence substantively in his own closing argument. '[A] defendant may make a reasonable tactical decision not to request a voir dire even when there is evidence of involuntariness.' Commonwealth v. Cutts, 444 Mass. 821, 832 (2005).
3. The prosecutor's closing argument. Although we agree that the prosecutor stepped beyond the evidence when he stated in closing that no alcohol was found in the car, we perceive no resulting substantial risk of a miscarriage of justice. See Commonwealth v. Colon, 449 Mass. 207, 223-224 (2007). The statement cannot have seriously undermined every possible exculpatory hypothesis the judge could have conceived, particularly where the fact of intoxication was not seriously contested. Moreover, '[a] trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence was to be considered in his role as factfinder.' Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). There is no reason to think that the judge gave any weight to the prosecutor's misstatement.
Judgments affirmed.
By the Court (Rapoza, C.J., Katzmann & Wolohojian, JJ.),