Opinion
15-P-43
12-18-2015
COMMONWEALTH v. SAMUEL MCDUFFIE.
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, Samuel McDuffie, appeals from his convictions for operating under the influence of intoxicating liquor and child endangerment while operating under the influence. The single issue he raises on this appeal is the sufficiency of the Commonwealth's evidence that he operated the vehicle on a public way. We affirm.
The defendant purports to challenge his conviction of child endangerment under G. L. c. 90, § 24V, on the same basis, but we read the plain language of § 24V to lack any "public way" element. The defendant makes no argument that such a requirement should be read into § 24V. As such, the defendant has waived any argument concerning the child endangerment conviction.
Background. Slightly before 9:30 P.M. on September 6, 2010, Cambridge police Officer Thomas Flynn and his partner were dispatched to the intersection of Brattle Street and Fresh Pond Parkway in the city of Cambridge (city) to respond to a motor vehicle accident. When they arrived at Brattle Street, Officer Flynn found Michael Otto (the 911 caller), the defendant, and their respective vehicles. While stopping for a traffic light, Otto's vehicle was hit from behind by the defendant's vehicle. Officer Flynn parked the police cruiser behind the defendant's vehicle in order to "protect" the parked vehicles from "motor vehicle traffic." Officer Flynn then engaged with the defendant who disclosed that he had earlier consumed "a cup of wine," and had taken Percocet pills for an injury. Based on his concern that the defendant may be intoxicated, Officer Flynn then radioed for Officer Jason Callinan, a certified "drug recognition expert," to assist at the scene. Officer Flynn testified that Brattle Street is maintained by the city, with street markings to signify the lanes, street signs, and a traffic light at the intersection with Fresh Pond Parkway. The cross street, Fresh Pond Parkway, is maintained by the State.
When Officer Callinan arrived, he saw Officer Flynn's vehicle parked behind the defendant's vehicle. Officer Callinan testified that the defendant admitted to having two wine coolers and two prescribed Percocet pills earlier. Officer Callinan also testified that he had the defendant step onto the sidewalk abutting Brattle Street so that the defendant would not be hit by passing vehicles, and proceeded to conduct field sobriety testing. Officer Callinan came to the opinion that the defendant was under the influence of alcohol, compounded by the use of Percocet, and the defendant was subsequently arrested.
Discussion. Sufficiency of evidence of a public way. The defendant challenges the sufficiency of the Commonwealth's evidence to prove a public way at trial. In reviewing the sufficiency of the evidence, this court determines "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia 443 U.S. 307, 319 (1979). We hold that the Commonwealth presented sufficient evidence to permit a jury to conclude that the way was public, and thus the trial judge did not err in submitting the case to the jury.
The public way element of G. L. c. 90, § 24(1)(a)(1), as appearing in St. 1994, c. 25, § 3, requires the Commonwealth to show that the defendant was operating a vehicle "upon any way or in any place to which the public has a right of access, or upon any way . . . to which members of the public have access as invitees or licensees." A "way" is defined as "any public highway, private way laid out under authority of statute, [or] way dedicated to public use." G. L. c. 90, § 1. Typical evidence of public accessibility "include[s] paving, curbing, traffic signals, street lights, and abutting houses or businesses." Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549-550 (1996). See Commonwealth v. Virgilio, 79 Mass. App. Ct. 570, 573 (2011) ("Some of the typical physical circumstances that may bear on the question whether a way is accessible to the public . . . are the presence of street lights, hydrants, curbing, and paving"). "[I]t is sufficient if the physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel." Commonwealth v. Hart, 26 Mass. App. Ct. 235, 238 (1988).
The present case is controlled by cases such as Hart, supra, and Smithson, supra. The defendant was arrested on Brattle Street, a road maintained by the city, with marked traffic lanes, street signs, and a traffic light where the accident occurred. In addition, Officer Callinan had the defendant complete the field sobriety testing on the abutting sidewalk so that the defendant would not be struck by passing vehicles. Taken as a whole and in the light most favorable to the Commonwealth, we find that the evidence presented at trial was sufficient to permit a reasonable jury to conclude that the defendant operated the motor vehicle on a public way.
This is not a case where the evidence presented during the defendant's case caused the Commonwealth's case to deteriorate. See Kater v. Commonwealth, 421 Mass. 17, 20 (1995).
Judgments affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 18, 2015.