Opinion
15-P-813
02-11-2016
COMMONWEALTH v. NICOLE C. VILLIARD.
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 a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI) and negligent operation of a motor vehicle. Subsequently, the defendant pleaded guilty to OUI, second offense. On appeal, the defendant argues that (1) the evidence was insufficient to establish that the offense occurred on a public way, (2) her trial counsel provided ineffective assistance, and (3) the judge erred when instructing the jury. We affirm.
Background. The jury could have found the following facts. On May 19, 2011, Officer Todd Boldy of the Franklin police department was on duty near an overpass on Route 495 in the town of Franklin. At approximately 1:08 A.M., the officer observed a vehicle driving southbound on Route 495 in the northbound lane. He subsequently stopped the vehicle. As the officer approached, he smelled a strong odor of alcohol and vomit coming from the vehicle. He observed that the defendant, who was sitting in the driver's seat, had glassy, bloodshot eyes and slurred speech.
The defendant exited her vehicle at the request of Massachusetts State Trooper Jason Morse, who arrived on the scene after the initial stop. The defendant told the trooper that she was coming from Fenway Park and she had previously consumed three drinks. The defendant also told the trooper she thought she was on Route 95 North. When asked where on 95, the defendant stated, "I couldn't tell you sober."
The trooper administered two field sobriety tests to the defendant. Before doing so, the trooper asked if she had any medical conditions that would prohibit her from completing the tests. The defendant mentioned that she wore a brace on her left knee. The defendant failed the tests even though they had been modified to allow for her knee condition. The trooper placed her under arrest.
Discussion. 1. Public way. The defendant claims that the trial judge should have granted her motion for a required finding of not guilty, because the Commonwealth provided insufficient evidence to prove that Route 495 is a public way. We disagree.
To sustain an OUI conviction, the Commonwealth must prove that the offense occurred on a public way. G. L. c. 90, § 24(1)(a)(1). A "way" is defined as "any public highway . . . [or] way dedicated to public use." G. L. c. 90, § 1. Indicia of a way include paving, curbing, Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 833 (2010), and evidence that the police patrolled the way. See Commonwealth v. Hazelton, 11 Mass. App. Ct. 899, 900 (1980). Proof that the offense occurred on a way may "rest entirely on circumstantial evidence." Belliveau, supra at 835, quoting from Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006).
Bearing in mind these principles and viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we think it is clear that a rational trier of fact could have concluded beyond a reasonable doubt that Route 495 is a public way. Trooper Morse described Route 495 as "a three-lane highway, with a breakdown lane, traveling north and south, with a median strip in the middle." In addition, Officer Boldy and Trooper Morse testified that they were patrolling Route 495 the night the defendant was arrested. See Hazelton, supra. From this evidence, the jury could have reasonably inferred beyond a reasonable doubt that Route 495 is a public way.
2. Ineffective assistance of counsel. The defendant further argues that her trial counsel provided ineffective assistance for failing to obtain a gastroenterology expert, failing to file a motion for funds to hire an infectious disease expert, and failing to call civilian witnesses to testify about her illness the night of her arrest. "[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). There is a narrow exception in cases where "the factual basis of the claim appears indisputably on the trial record." Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). This is not such a case. The record is silent as to trial counsel's strategy or any explanation for his actions. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Accordingly, we decline to address this claim.
3. Jury instructions. Finally, the defendant argues that the judge erred twice when instructing the jury. Because the defendant did not object, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
First, the defendant argues that the trial judge erred when he told the jury during his final charge that the defendant was administered "several" field sobriety tests, when the evidence showed "two" tests were given. "Error in a charge is determined by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context." Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980). During the one-day jury trial, the jury heard extensive testimony from Trooper Morse and the defendant about the field sobriety tests. The evidence about the number of tests was clear. A reasonable jury could not have been misled by the judge's use of the word "several" rather than "two." See Commonwealth v. Grant, 418 Mass. 76, 85 (1994). The misstatement did not pose a substantial risk of a miscarriage of justice.
Second, the defendant contends that the trial judge erred when he did not explicitly caution the jury not to discuss the case during the lunch recess. In fact, cautionary instructions were administered at the beginning of trial, including an instruction that the jurors should not discuss the case "until you've heard all of the evidence, the closings, my instructions, and most crucially, one another's opinions." The fact that the instructions were not repeated at the lunch break in a one-day trial did not create a substantial risk of a miscarriage of justice.
We note that the defendant does not argue that the judge's cautionary instruction was violated in any way.
Judgments affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 11, 2016.