Opinion
15-P-135
04-06-2016
COMMONWEALTH v. HECTOR A. VALENCIA.
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
The defendant appeals from his convictions of disorderly conduct and resisting arrest, assigning error to the admission of testimony by the arresting officer that the defendant was intoxicated at the time of the offenses, and to portions of the prosecutor's closing argument making reference to that evidence. We affirm.
As a threshold matter, we agree with the Commonwealth that the defendant's appeal from his conviction of disorderly conduct is not properly before us, because it was placed on file with the defendant's consent. See Commonwealth v. Ford. 424 Mass. 709, 713 n.2 (1997). The point is largely immaterial, however, since we conclude that the defendant's claims are without merit.
Contrary to the defendant's contention that the record includes no indication of the defendant's consent to the disposition, we note that the docket reflects that the conviction was filed with the defendant's consent. Moreover, in response to the trial judge's statement that he was placing the conviction on file, the defendant's counsel replied, "Thank you."
Passing the question whether the defendant's general objection to one question preserved his claim of error even as to that question, we discern no error in the admission of testimony by the arresting officer that the defendant appeared intoxicated at the time (early on a February morning) the officer encountered the defendant, who was slumped over the steering wheel of an automobile parked on a slant in relation to the curb, partially on top of a snow bank, with the driver's side window completely open. The officer's belief that the defendant might be intoxicated was relevant in part to explain the officer's actions of applying a "sternum rub" in an effort to awaken him safely. It is settled that, when relevant, lay opinion of a belief that a person may be intoxicated, based on the witness's observations, is admissible. See Commonwealth v. Orben, 53 Mass. App. Ct. 700, 704 (2002). The defendant's contention that there was no basis to believe the defendant was intoxicated, based on the failure of police to charge him with operating a motor vehicle while under the influence of alcohol and the absence of testimony by the officer of other typical indicia of intoxication, goes to the weight rather than the admissibility of the evidence. The defendant did not assert at trial any claim that there was inadequate foundation for the officer's opinion of intoxication, and, as noted by the defendant, intoxication is not an element of either of the charged offenses. Moreover, the officer's initial statement about the possibility that the defendant "might have just been intoxicated" was offered, without objection, to explain the officer's decision to apply the "sternum rub" to the defendant. See Commonwealth v. Tiexeira, 29 Mass. App. Ct. 200, 202 (1990). When the officer later expressed the view that the defendant was in fact intoxicated, he offered that opinion by way of explanation of the defendant's belligerent response to the encounter. See Commonwealth v. Orben, supra at 703-704. There was no error.
Because the officer's testimony was properly admitted, the prosecutor was entitled to refer to it during his closing argument.
Judgment affirmed.
By the Court (Green, Vuono & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 6, 2016.