Opinion
20-P-886
06-18-2021
COMMONWEALTH v. Richard V. TEDESCO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of operating under the influence of liquor in violation of G. L. c. 90, § 24 (1) (a ) (1). He now appeals.
The defendant's sole argument on appeal is that the judge's instruction with respect to operation of a motor vehicle was in error. Because no objection to the instruction was made below, the defendant's claim of error is not preserved, and, as he correctly acknowledges, the conviction will be reversed only if we conclude that there was both an error and that it created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Based on the evidence at trial, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found that on the night of December 23, 2017, while driving a work van in icy conditions, the defendant slid off Oak Street in Shrewsbury and into the woods near 371 Oak Street, a residence. He left the van where it was, returned on foot to his house, called AAA to tow the van, and ate dinner. About one hour later, AAA sent a text message to the defendant informing him that someone was on the way to tow the van. He left his home in his wife's car, heading back toward the location where he had left the van and, on his way, he saw that a different tow truck company -- not AAA -- was already towing away the vehicle. The defendant called the company that towed the van and was told that the company would release the van only to the registered owner. The defendant testified that he waited at White City Plaza for the registered owner of the van, who was attending a party, so that they could make arrangements to retrieve the van from the towing company.
Approximately four hours after a police officer first arrived at the scene where the van slid off the road, two officers observed the defendant in his wife's car, parked in the parking lot of White City Plaza. The officers observed the defendant in the driver's seat, and it appeared that he was sleeping.
The officers approached the car and knocked on the windows. One officer, Officer Gabriel, testified that the car's engine was running. Once the defendant responded to the knocks on the windows, the officer asked the defendant to roll down the window, but he opened the door instead. Both officers asked the defendant to step out of the car.
The defendant stumbled out of the car and appeared lethargic and unsteady on his feet, with bloodshot and glassy eyes and the smell of alcohol on his breath. A patfrisk of the defendant ultimately revealed two empty alcohol "nip" bottles in his pants pockets. The defendant testified that they were from a party he had attended the night before.
At the outset of the jury charge, the judge told the jurors,
"I'll talk about proof beyond a reasonable doubt, credibility, and then eventually I'll give you the definition of operation and what it means to be under the influence of liquor legally.... [Y]ou have to ask yourself ... did the government prove beyond a reasonable doubt operation? Did they prove beyond a reasonable doubt that the defendant was under the influence of liquor at the time when the car was in that White City lot. And if you answer yes to both those questions, you return the verdict of guilty. If the answer is yes, the case has been proved beyond a reasonable doubt. If your answer is no, then return a verdict of not guilty. Normally, the place of public access could be an issue in some cases, but as I told you, there's no dispute that that parking lot is a place of public access. So that element you don't have to worry about. The government has to prove though both that he was operating the motor vehicle in that parking lot while under the influence of liquor to get a conviction. All right. And the operation would be at the time the police saw him in the parking lot."
The judge's subsequent instruction with respect to operation was as follows:
"The defendant as you know is charged in this case with operating a motor vehicle under the influence of liquor, and one of the first things that the government has to prove is that the defendant did operate the motor vehicle.... The person operates a motor vehicle while he's doing all of the things, well-known things, that drivers do as they travel on the street or a highway. But it also involves when they do any act ... which directly tends to set the vehicle in motion. The law is that a person is operating a motor vehicle whenever he or she is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle, like the gearshift or the ignition, which [ ] alone or in sequence will set the vehicle or could set the vehicle in motion.... The question is did he operate? .... To operate a motor vehicle within the meaning of the law, it is not necessary even that the engine be running. A driver continues to operate his or her motor vehicle when it is stopped in the ordinary course of its operation for some reason that is fairly incidental to the vehicle's operation. A person is also considered to be operating a stationary vehicle when he or she manipulates some part of it like the gearshift so that it moves forward of [its] own weight. That's also a part of the definition."
The defendant acknowledges that if the car was running, the jury could have found the defendant was operating it. His primary argument is that the first portion of the jury charge quoted above compelled a finding of operation: "Since the judge had specifically instructed the jury that ‘operation would be at the time the police saw him in the parking lot,’ the impression on the jury was that the factual question of operation was decided whether the engine was running or not."
We think this is a misreading of the way this instruction would have been understood by the jurors. It is clear from our reading of this portion of the instruction, and the instruction as a whole, that the jury would have understood that the judge was instructing them that they had to find operation, but that operation, in order to support a conviction in this case, had to have occurred in the White City Plaza parking lot that the parties had stipulated was a place of public access.
The defendant emphasizes that the judge later instructed that "[t]o operate a motor vehicle within the meaning of the law, it is not necessary even that the engine be running." In context, this, however, was part of an accurate statement of the law, see Commonwealth v. Virgilio, 79 Mass. App. Ct. 570, 582 (2011) (Sikora, J., dissenting), and the judge did not say that in all circumstances being in the driver's seat of a car that is not running amounts to operation. The judge's accurate instruction, thus, did not instruct the jury that they were to convict the defendant of operation whether or not the engine was running. The instruction correctly informed the jurors that even if they found that the engine of the vehicle was not running, in certain circumstances, the driver might nonetheless be found within the meaning of the statute to be operating the motor vehicle.
We note that although the defendant raises no claim in his opening brief that there was any other error in the instruction, the Commonwealth asserts in its responsive brief that there was no evidence supporting the portion of the instruction with respect to finding operation in circumstances where the engine was not running. Even if that is true, something we need not and do not decide, and even were the defendant to have raised this claim in his opening brief, we would nonetheless conclude that any such error did not create a substantial risk of a miscarriage of justice. The only testimony with respect to the engine of the vehicle was the testimony of one officer that it was running. No one, including the defendant who testified, said anything otherwise, nor did counsel during opening or closing argument raise any question about operation of the vehicle or whether the engine was in fact running when the police came upon the defendant. In these circumstances, where the running of the engine was not a live issue at trial so that there is no reason for believing that the jurors found operation on the basis of anything other than a conclusion that the officer's testimony was credible and the engine was running, the inclusion of the unobjected-to instruction that there are circumstances in which operation could be found even if the engine was not running, even if error, did not create a substantial risk of a miscarriage of justice.
Judgment affirmed.