Opinion
16-P-401
05-23-2017
COMMONWEALTH v. Kristopher N. QUILES-SANTIAGO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant, Kristopher N. Quiles-Santiago, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. On appeal, the defendant contends that the trial judge erred in failing to properly instruct the jury on the meaning of operating a vehicle while "under the influence of intoxicating liquor," and in providing a misleading instruction in response to the jury's question. We affirm.
The defendant was found not responsible for a civil motor vehicle infraction and pleaded guilty to a charge of possession of a class B substance, both arising out of the same incident.
The jury heard testimony from Greenfield police Officer Jay Butynski, who stated that on August 2, 2015, at around 1:40 a.m., he was on foot patrol with two other officers. The officers noticed a gathering of twenty to thirty people outside an apartment complex and observed them for approximately thirty minutes. Members of the group were drinking alcohol and acting belligerently. The officers observed the defendant and two other people pass around a bottle of what appeared to be vodka and drink from it. One of the men in the defendant's group was screaming and yelling, taking off his shirt, and attempting to fight other people. The defendant unsuccessfully attempted to calm him down. The defendant and the men left the gathering, went to the parking lot, and got into the defendant's car.
The defendant started the car and backed out of the parking spot. Officer Butynski approached the defendant's car and told him to stop the car. The officer smelled alcohol and asked the defendant to step out of the car so that he could conduct field sobriety tests. The defendant said, "Come on, I've only had a couple beers and two or three shots." Based on the defendant's performance of the field sobriety tests, which was "fairly decent," the officer determined that he was under the influence of alcohol. At approximately 3:49 a.m., the defendant took a breathalyzer test which resulted in a reading of .10 percent blood alcohol concentration.
After the jury had deliberated for less than one hour, they returned with questions regarding the elements of operating a motor vehicle while under the influence, and requested a copy of the jury instructions in writing. With consent from both the Commonwealth and defense counsel, the judge provided the jury with a copy of the model jury instruction for operating while under the influence of intoxicating liquor. Later, the jury returned and stated that they were unable to find the defendant guilty of operating a motor vehicle while under the influence on the theory that he had a blood alcohol level of .08 percent or greater, and could not reach a unanimous decision on whether he had a diminished capacity to operate the vehicle safely. The judge, without objection, advised the jury to continue deliberating.
The model jury instruction states: "A person is under the influence of alcohol if he (she) has consumed enough alcohol to reduce his (her) ability to operate a motor vehicle safely, by decreasing his (her) alertness, judgment and ability to respond promptly." Criminal Model Jury Instruction for Use in the District Court 5.310 (2009).
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The next day, the jury brought forth an additional question about the meaning of the phrase "under the influence." Specifically, the jury inquired:
"[D]o all of these examples need to be scrutinized and decided on or can we pick just one and base a decision on that. In other words, do we have to say that we believe Mr. Santiago's ability to operate a motor vehicle was decreased and we believe his alertness was decreased and his judgment was decreased and his ability to respond promptly, which also [sic ] decreased."
In response, the judge told the jury:
"I don't think there is an easy yes or no answer to that.... You're to read that instruction as a whole, not to pull out any particular part of the instruction, just as you're not to pull out any part of any of the other individual instructions I gave you. You leave them whole. And I'm going to tell you that your ultimate decision is whether or not this defendant's ability to drive safely was reduced by the consumption of alcohol. And you need to make that determination beyond a reasonable doubt."
The jury later returned a guilty verdict.
Discussion. The defendant contends that the judge erred by failing to provide the jury with an explanation of the phrase "operating [while] under the influence of intoxicating liquor." The record is clear that the judge carefully considered the jury's questions, responded by giving them a written copy of the model jury instruction, and advised them to consider the instructions as a whole. The judge's instructions did not lower the Commonwealth's burden of proof by providing an incorrect statement of the law. Contrast Commonwealth v. Connolly, 394 Mass. 169, 172 (1985) (reversal warranted where trial judge incorrectly instructed jury that "perceptible degree" of intoxication was sufficient to find defendant had operated while under the influence).
Prior to the judge's instruction in response to the jury question on the second day of deliberation, defense counsel requested that the judge instruct the jury that they must find the defendant had decreased alertness, decreased judgment, and decreased ability to respond, in order to determine that his ability to operate the vehicle safely had been reduced. These are factors a jury may consider but they are not elements of the offense; therefore, the judge did not err in electing to not give this proposed instruction. See, e.g., Commonwealth v. Ames, 410 Mass. 603, 609 (1991) ("The judge was not obliged to tell the jury what factors to consider in deciding whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely"); Commonwealth v. Riley, 48 Mass. App. Ct. 463, 465 (2000) (examples of mental clarity in instruction "are merely examples or factors that the jury may use in determining whether the consumption of alcohol diminished the defendant's capacity to operate his motor vehicle safely").
Here, as in Commonwealth v. Riley, the judge properly responded to the jury's questions by explaining that they must decide if the Commonwealth had proven beyond a reasonable doubt that "this defendant's ability to drive safely was reduced by the consumption of alcohol." "We evaluate jury instructions as a whole and interpret them as would a reasonable juror.... We do not require that judges use particular words, but only that legal concepts are properly conveyed." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). Where the judge provided the jury with a written copy of the model jury instructions and instructed them to consider the instructions as a whole, there was no error.
Judgment affirmed.