Opinion
18-P-1599
09-20-2019
COMMONWEALTH v. James E. RAVENSCRAFT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bifurcated trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI), fourth offense (count 1), and operating with a license suspended for OUI while OUI (count 3). , He was sentenced to two and one-half years in the house of correction on count 1, and to an additional one year in the house of correction on count 3. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of either charge; (2) a State trooper improperly testified as to the defendant's ability to operate a motor vehicle, see Commonwealth v. Canty, 466 Mass. 535, 544 (2013) ; and (3) the judge's failure to conduct a jury waiver colloquy and obtain a written jury waiver form requires that the findings resulting from the jury-waived portion of the trial be set aside. We conclude that the evidence before the jury was sufficient to find that the defendant operated his vehicle while under the influence of alcohol, but that the evidence of the defendant's license suspension was insufficient. We further conclude that the evidence before the judge was sufficient on the fourth offense element of count 1, but conclude that the findings from the bench trial cannot stand because a written jury waiver and a colloquy were necessary.
The remaining charges are not at issue in this appeal.
After the jury trial, the "fourth offense or greater" element of count 1 and the element pertaining to the cause of the defendant's license suspension in count 3 were tried in a bench trial. See G. L. c. 278, § 11A.
Discussion. 1. Sufficiency of the evidence. In the first stage of this bifurcated trial, the defendant moved for a required finding of not guilty at the close of the Commonwealth's case, and the judge denied the motion. We review this denial de novo, Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013), "to determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Beal, 474 Mass. 341, 345 (2016), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Because the defendant moved for a required finding of not guilty when the Commonwealth rested, "[w]e consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time." Commonwealth v. Semedo, 456 Mass. 1, 8 (2010), quoting Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).
The Commonwealth's evidence at the jury trial consisted of Registry of Motor Vehicles (RMV) records, the testimony of three State troopers, and the testimony of a driver who called the police after his vehicle was hit by the defendant's. The driver testified that he was driving southbound on Route 128 when the defendant's truck struck the side of his vehicle. Both vehicles pressed on, and, shortly after the contact, the defendant signaled as if he were going to enter a rest area. Just before entering the rest area, however, the defendant, accelerating, crossed three lanes of traffic. The other driver followed the defendant, called the police, and, while in pursuit, observed the defendant's vehicle swerving left and right. State Trooper Kenneth Belben, the first trooper to respond to the incident, also observed the defendant's vehicle swerving, and attempted to pull the defendant over. The defendant complied, but stopped in the middle of an active exit lane, moving into the breakdown lane only after Belben's second instruction to do so. Speaking with the defendant at the roadside, Belben observed that the defendant's eyes were red and "glossy," his speech was slurred, and his breath smelled of alcohol. When the defendant exited the vehicle, he appeared unsteady on his feet and used the vehicle to support himself. Belben administered several field sobriety tests, none of which the defendant was able to complete satisfactorily. Belben ultimately arrested the defendant.
a. Count 1. The evidence was sufficient to support the defendant's conviction for OUI. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) (evidence of driver's imbalance, emanating odor of alcohol, slurred speech, inability to complete field sobriety tests, and failure to park as instructed sufficient to support OUI conviction).
The evidence on the element of the defendant's subsequent OUI offenses was also sufficient as to two of the three alleged prior OUI convictions, but was insufficient as to the most recent alleged prior offense, docket 1234CR000998, documenting a conviction of OUI, third offense. During the bench trial, the parties introduced the defendant's written stipulation "that he is the individual identified in the following dockets: 1234CR000 98, 0634CR004168, 8831CR3149" (emphasis added), and to his assignment of a certain Social Security number. The Commonwealth introduced three certified convictions: 1234CR000 998, 0634CR004168, and 8831CR3149. The 2012 docket number to which the defendant stipulated differs by one digit from that of the 2012 certification introduced in evidence -- it concludes with 98, rather than 998. While this difference may simply be the result of an error in transcribing the correct docket number onto the written stipulation, we are confined here to the record of the trial. In the absence of any information beyond identity of name and birthdate tying the defendant to the certified conviction on docket 1234CR000998, the Commonwealth's evidence was sufficient to prove only a third offense. Compare Commonwealth v. Bowden, 447 Mass. 593, 601-602 (2006) (evidence of identity of name, date of birth, and prior addresses, as well as records bearing defendant's photograph, sufficient to establish identity).
None of these dockets, marked as exhibits at trial, is part of our record; we have obtained copies of them from the trial court. As we note, docket 1234CR000998 memorializes a conviction on a third-offense OUI; docket 8831CR3149 reflects a continuation without a finding on a first offense OUI, and docket 0634CR004168 documents a conviction on an OUI, second offense.
This issue was not raised at trial or on appeal, and so has been waived. See Commonwealth v. Randolph, 438 Mass. 290, 293 (2002). We nonetheless review the issue for a substantial miscarriage of justice, to ensure that "the defendant's guilt has been fairly adjudicated." See id. at 294-295, quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
The three certified convictions each list a different residential address for the defendant(s) to whom the dockets relate. Although the defendant stipulated to his Social Security number, that number does not appear on the certified convictions introduced in evidence at trial.
b. Count 3. The fourth paragraph of G. L. c. 90, § 23, establishes the crime of "operating a motor vehicle while under the influence of alcohol while the driver's license has been suspended or revoked because of a prior violation of operating a motor vehicle while under the influence of alcohol." Canty, 466 Mass. at 546. As stated above, the evidence was sufficient to show the first element of this crime -- that the defendant was OUI. To prove that the defendant was also, at the same time, operating a motor vehicle after his license was suspended for OUI, the Commonwealth was required to show "(1) that the defendant operated a motor vehicle; (2) that at the time of that operation the defendant's license was revoked or suspended; (3) that the license suspension or revocation was pursuant to a violation of [ G. L. c. 90, § 24 (1) (a ) ]; and (4) that the defendant was notified that his license had been suspended or revoked." Commonwealth v. Wilson, 90 Mass. App. Ct. 166, 168 (2016), quoting Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014) (construing G. L. c. 90, § 23, third par.). The defendant argues that the Commonwealth's evidence was insufficient to establish that he, a resident of New Hampshire, was the "James E. Ravenscraft" of Cranston, Rhode Island, identified through records of the RMV as having a suspended license at the time of the alleged offense. We agree.
The Commonwealth failed in its case-in-chief to provide any evidence linking the defendant to the RMV records. See Bowden, 447 Mass. at 601-602. Neither the convictions nor the defendant's Social Security number were introduced during the jury trial. Likewise, neither the fact that the defendant previously lived in Rhode Island, nor the defendant's date of birth were revealed to the jury until the defendant testified, after the Commonwealth had rested and the defendant had moved for a directed verdict. Contrast Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 336 (2006) (testimony as to defendant's date of birth and address, also contained in RMV record, sufficient). When the Commonwealth rested, the only evidence linking the defendant to the RMV record of a person with a suspended license was the name James E. Ravenscraft. See Bowden, supra (identity of name alone insufficient). In the absence of any other evidence connecting the defendant to the RMV record in evidence, we conclude the evidence that the defendant was operating with a suspended license was insufficient.
Although in some instances an unusual name may create an inference that the relevant record pertains to the defendant, Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008), we nonetheless require additional evidence to corroborate the connection. See id. at 546-547.
Because of the result we reach here, we need not consider whether the Commonwealth sufficiently proved the element pertaining to the cause of the defendant's license's suspension, which was tried separately.
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2. Opinion testimony. Despite the trial judge's in limine ruling precluding such evidence, Belben testified that he had formed the "opinion that [the defendant] was drunk" and "couldn't safely drive." By saying the defendant "couldn't safely drive" because he was "drunk," Belben in effect expressed his opinion that "the defendant's consumption of alcohol diminished [his] ability to operate a motor vehicle safely" (emphasis omitted), Canty, 466 Mass. at 542, quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985), which "is the test of whether the defendant was ‘under the influence’ of alcohol while operating a motor vehicle, in violation of G. L. c. 90, § 24." Canty, supra. This testimony violated the rule prohibiting witnesses from testifying to the ultimate issue of a defendant's guilt or innocence, which, in this context, prevents police officers, as lay witnesses, from expressing their opinion as to the defendant's ability to drive due to alcohol consumption. See id. at 543-544 (declining to limit impermissible testimony to particular phrase).
"Because the defendant objected to [Trooper Belben's] testimony, we review ... for prejudicial error." Commonwealth v. Barbosa, 477 Mass. 658, 673 (2017). "An error is not prejudicial if it ‘did not influence the jury, or had but very slight effect,’ " taking into account the context in which the error was made and the quality and quantity of the other evidence introduced. Canty, 466 Mass. at 545, quoting Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Here, we find no such prejudice. Belben did not repeat the objectionable statement, and the prosecutor immediately followed up with a question focusing on the defendant's drunkenness, not his ability to drive. The evidence of the defendant's erratic driving, failure to properly pull over, inability to perform field sobriety tests, and instability and odor was the type of "overwhelming evidence" we routinely consider sufficient to overcome any prejudice resulting from improper testimony. See Commonwealth v. Leary, 92 Mass. App. Ct. 332, 346-347 (2017) (opinion given following description of failed field sobriety tests and as explanation for basis of arrest not prejudicial). Moreover, the judge's final instruction to the jurors -- specifically that they could "accept" or "reject" any opinions they had heard, and that ultimately, they "alone must decide whether the defendant was under the influence of intoxicating liquor" -- diminished the risk that the jurors were influenced by Trooper Belben's improper testimony. See Canty, supra. Accordingly, we conclude that there was no prejudicial error.
3. Jury waiver. After the defendant was found guilty by the jury of OUI and operating after suspension, his counsel indicated that the defendant wished to waive his right to a jury trial on the remaining parts of the bifurcated charges. Although the judge explained the need for a colloquy and written jury waiver, the bench trial went forward without them. The Supreme Judicial Court "established a bright-line rule in Ciummei [v. Commonwealth, 378 Mass. 504, 509 (1979),] that to effectively waive his right to a jury trial, a defendant must sign a written waiver form pursuant to G. L. c. 263, § 6, and the trial judge must conduct a colloquy to assure himself that the defendant's waiver was voluntary, knowing, and intelligent." Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008). As the Commonwealth concedes, the judge's failure to adhere to the procedures set out in Ciummei entitles the defendant to a new trial on the elements tried before the judge.
4. Retrial. The question whether the offenses may be retried depends on whether the Commonwealth presented evidence legally sufficient to convict the defendant in the first instance. See Commonwealth v. Fitzpatrick, 463 Mass. 581, 589-590 (2012) (citing common-law principles of double jeopardy). As discussed above, the evidence that the defendant operated with a suspended license was insufficient; accordingly, he may not be retried on count 3. As to count 1, the evidence was sufficient as to the OUI and as to the three prior OUI offenses alleged in the complaint. Accordingly, the Commonwealth may retry the prior offense element of count 1, up to three prior offenses.
Conclusion. The verdict on count 1 is to stand; the findings on counts 1 and 3 and the verdict on count 3 are set aside; the judgments are vacated; and judgment shall enter for the defendant on count 3. The defendant shall be resentenced on so much of count 1 as charges OUI, or retried on so much of count 1 as charges up to a fourth offense.
So ordered.
vacated in part and remanded.