Opinion
19-P-325
03-04-2020
COMMONWEALTH v. William J. MILLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor (OUI) and negligent operation of a motor vehicle. On appeal he argues that there was insufficient evidence that his consumption of alcohol impaired his ability to drive, and that the judge gave an erroneous instruction in response to a jury question about the absence of breathalyzer evidence. We affirm.
1. Sufficiency. The jury could have found the following facts, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). After midnight on June 30, 2017, Falmouth police Officer Ryan Moore observed the car in front of him repeatedly cross over the center line into the opposite lane of travel and "drive off to the right side of the road ... up onto the raised curb and back down." Moore stopped the car and spoke to the driver, the defendant. Moore observed that the defendant's eyes were "very bloodshot and glossy" and he slurred his speech without "tak[ing] breaks between his words." When Moore asked the defendant to step out and walk toward the back of the car, the defendant "had to hoist himself up out of his seat with the driver's side door" and "put his hands on the car for stability as he walked ... to guide himself." There was "a moderate odor of alcohol coming from [the defendant's] breath," and "his body was ... swaying." The defendant told Moore that he had "one beer." Moore administered three field sobriety assessments, which the defendant failed.
Based on these facts, a rational juror could have found that the defendant was impaired, meaning that his "consumption of alcohol diminished [his] ability to operate a motor vehicle safely." Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). The defendant "exhibited classic symptoms of alcohol intoxication": his eyes were bloodshot and glossy; his speech was slurred; there was an odor of alcohol on his breath; he was unsteady on his feet; and he failed three field sobriety assessments. Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017). Furthermore, while proof "that the defendant actually drove in an unsafe or erratic manner" was not required, Connolly, 394 Mass. at 173, Moore observed the defendant cross over the center line multiple times and drive off the road onto the curb. This evidence, taken together, was sufficient to prove impairment and negligent operation of a motor vehicle. See Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 218-220 (2019) ; Gallagher, 91 Mass. App. Ct. at 392-393. Although the defendant offers alternative explanations for his appearance and behavior that night, to accept his argument, we would have to view the evidence in the light least favorable to the Commonwealth, which we cannot do on a sufficiency challenge. See Gallagher, 91 Mass. App. Ct. at 393.
2. Response to jury question. During deliberations the jury sent the following question to the judge: "Did he have a breath test? Was it offered or refused?" The judge replied:
"This is where you're a judge of the facts, and you have all of the facts that have been presented to you in this case, and you can't speculate or consider anything else that was not introduced to you in the trial.... So it's kind of like you got this toolbox, you got to use the tools you got and make a decision based upon that. So otherwise, I would be, basically, a witness then. I'd be telling you something that was not part of this trial. And so you cannot speculate about it at all because it's -- literally, you've got your tools.... And those are the only things you can use to determine whether the Commonwealth proved their case beyond a reasonable doubt."
The defendant did not object.
The defendant now argues that the judge should have sua sponte given a specific instruction on the absence of breathalyzer evidence, akin to the one given by the judge in Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198-200 (2001). But in Commonwealth v. Wolfe, 478 Mass. 142, 150 (2017), the Supreme Judicial Court held that judges should "refrain from giving a Downs-type instruction absent a request by the defendant or some rare set of facts that specifically directs the jury's attention to the absence of alcohol-test evidence." The court further held that, when there is a jury "question about the absence of alcohol-test evidence, ... it is the better practice to simply reiterate the general instruction not to speculate about matters not in evidence and, to the extent possible, refrain from reinforcing the jury's focus on items not in evidence by mentioning the lack of alcohol-test evidence." Id. at 150 n.13. The judge's response here was fully in line with Wolfe. There was neither error nor a substantial risk of a miscarriage of justice.
Specifically, the judge in Downs instructed the jury as follows: "You are not to mention or consider in anyway whatsoever, either for or against either side, that there is no evidence of a breathalyzer. Do not consider that in any way. Do not mention it. And put it completely out of your mind." 53 Mass. App. Ct. at 198.
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Judgments affirmed.