Opinion
14-P-931
05-04-2015
COMMONWEALTH v. NICHOLAS D. POTO.
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
Following jury and jury-waived trials in District Court, the defendant was convicted of operating a motor vehicle under the influence of drugs, fourth offense. G. L. c. 90, § 24(1)(a)(1). Because we find the two arguments the defendant has made on appeal unpersuasive, we affirm.
Admission of certain evidence. According to the testimony of State Trooper Matthew Sheehan, while he was stopped to assist a motorist on Route 128, a motor vehicle driven by the defendant crossed into the breakdown lane and almost hit his cruiser. Sheehan proceeded to pull the defendant over, and he was able to observe multiple additional indications that led him to conclude that the defendant was under the influence of drugs. Specifically, the defendant "fumbled" looking for his identification, "his responses were very slow and his pupils were the size of pins," "he was stumbling from side to side," and he missed the letters C and D during an alphabet recitation test (and stopped at the letter H) and the numbers thirteen and seventeen when asked to count from one to twenty. There was also a "strong smell of freshly burnt marijuana as soon as the [vehicle] window was rolled down." Trooper Sheehan stated that the defendant admitted that he had smoked marijuana one-half hour earlier and had taken a tablet of the painkiller Vicodin two hours earlier. In his trial testimony, the defendant admitted to taking two Vicodin tablets. He also admitted to smoking marijuana, although he claimed he had smoked it more than a one-half hour before the stop and that the fresh smell in the vehicle was from his passenger's smoking it.
The Commonwealth presented expert testimony about the effects of marijuana and Vicodin individually, and about how taking these together can compound those effects. On appeal, the defendant does not contest the admission of such testimony. Instead, he challenges the admission of: (a) urine sample analysis results that showed the presence of additional drugs in his system (including opiates, benzodiazepins, and cetirizine), and (b) related testimony from a State chemist "that the effect of the marijuana would have been compounded by the presence of these drugs." The defendant argues that such evidence should not have been admitted absent proof of the amount of such drugs in the defendant's blood system and whether such amounts could cause impairment (by themselves or in combination with other drugs). Compare Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 76 (2005).
One of the opiates discovered was hydrocodone, an ingredient in Vicodin. Also discovered were codeine, oxycodone, and methadone. Cannibinoids were also found, presumably from the defendant's admitted use of marijuana.
As an initial matter, we note that the defendant did not preserve this issue for appeal. According to the record before us, the defendant raised a general objection at trial to the entirety of the chemist's testimony as "irrelevant and prejudicial," as well as objections on numerous grounds to the Commonwealth's substituting this particular chemist for one who had left the State laboratory. No objection was lodged at trial as to the grounds the defendant now seeks to press on appeal, namely, that the Commonwealth had failed to lay an adequate foundation for admission of the evidence regarding the additional drugs. Our analysis is therefore confined to whether any error created a substantial risk of a miscarriage of justice. See Shellenberger, supra at 73 n.5.
See Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192 (2002) ("It is black letter law that objections to evidence . . . are not preserved for appeal unless made in a precise and timely fashion, as soon as the claimed error is apparent, so as to afford the trial judge an opportunity to act promptly to remove from the jury's consideration evidence . . . which has no place in the trial") (quotations omitted).
Without resolving whether the Commonwealth had laid an adequate foundation for admission of the evidence relating to the additional drugs, we conclude that the defendant has not met his burden of demonstrating that there was a substantial risk of a miscarriage of justice. Notably, the defendant admitted both to using marijuana and taking Vicodin before he was stopped, and there was extremely robust evidence of his significant actual impairment. The context here was markedly different from that of Shellenberger, supra at 76, in which we concluded that the erroneous admission of urine analysis results without adequate foundation and absent other evidence of impairment required the jury to speculate. Here, by contrast, there was significant independent evidence of impairment.
There was no evidence of alcohol consumption as might have complicated the Commonwealth's case for intoxication by drugs. We appreciate that the defendant testified in his defense. For example, he sought to convince the jury that he did not come close to hitting Trooper Sheehan's cruiser, and he claimed that his long-term use of Vicodin had built up his resistance to that drug. Although the import of such testimony was of course for the jury to sort out, we have a difficult time imagining that it did much to undercut the force of the Commonwealth's case.
Shellenberger involved a prosecution for motor vehicle homicide by negligent operation. 64 Mass. App. Ct. at 71. The Commonwealth's original theory of negligent operation was speeding, but this metamorphosed during trial to a theory that the defendant was impaired by her ingestion of amphetamines. Ibid. The defendant did not admit such use and the Commonwealth's case rested on the results of the urine analysis. Id. at 73.
Sufficiency of evidence. The defendant's second argument relates to the subsequent offense trial, specifically, that there was insufficient proof of one of the three prior offenses for operating under the influence (OUI). As to that offense, the Commonwealth presented court records from Kentucky showing that someone with the same unusual name was convicted of an OUI offense on September 13, 1996. Because those records did not include other identifying information, the defendant argues that they did not provide sufficient proof of identity. See Commonwealth v. Koney, 421 Mass. 295, 302 (1995) ("Mere identity of name is not sufficient to indicate an identity of person"). However, the driving history records from the Massachusetts Registry of Motor Vehicles documented that the defendant had a mailing address in Kentucky (thus establishing his ties to that State), and they specifically referenced that he had had an OUI violation in Kentucky on the same date listed in the Kentucky conviction records. Taken together, the evidence was sufficient to prove that the defendant committed the prior Kentucky OUI violation.
Judgment affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 4, 2015.