Opinion
11-P-222
12-06-2011
COMMONWEALTH v. LAWRENCE WACHIRA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals after a jury found him guilty on a charge of operating a motor vehicle while under the influence of intoxicating liquor. We affirm.
See G. L. c. 90, § 24(1)(a)(1). The same jury found the defendant not guilty on a charge of negligent operation of a motor vehicle. G. L. c. 90, § 24(2)(a).
The defendant's first argument is that there was insufficient evidence to find beyond a reasonable doubt that he committed the offense. The jury heard evidence from three experienced police officers. The arresting officer responded to a dispatch at 2:46 A. M. He observed a motor vehicle stopped in the travel lane; the car then, without turn signals, moved abruptly back and forth between lanes, 'completely all over the road.' When the officer attempted to pull the car over, it stopped on the sidewalk. The defendant had difficulty retrieving his registration from the glove compartment and he had a 'strong odor of alcoholic beverage.' The officer administered field sobriety tests: the defendant passed the 'alphabet test' after several tries, but he lost his balance in the 'nine step test'; the officer concluded that he failed it.
The three officers testified to a total of fifty-five years of experience, ranging from ten to twenty-nine years.
The police officer who 'booked' the defendant also testified that he formed the opinion that the defendant 'was drunk, and he was intoxicated as well' after observing him for approximately twenty minutes. The officer noted that the defendant emitted an odor of an alcoholic beverage that was stronger when he was speaking; his eyes were bloodshot and red; and he 'rock[ed] [and] sway[ed]' while the officer was trying to fingerprint him. The defendant admitted to consuming several beers and also made at least one statement that was incoherent. The lieutenant who was the commanding officer at the station that night testified that the defendant was 'drunk.'
He told the officers that he had been 'stopped, two girls away,' apparently using the word 'girls,' in the officer's words, 'as a unit of measurement.'
Taken together, this evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was under the influence of alcohol. The defendant's evidence was to the contrary; however, in determining whether the evidence was sufficient, 'we do not weigh the supporting evidence against conflicting evidence, nor do we consider the credibility of the witnesses.' Commonwealth v. Semedo, 456 Mass. 1, 8 (2010).
The defendant next complains that the judge erred when he refused to ask requested juror voir dire questions, but did not include a copy of the requested questions in the record appendix. The transcript indicates that the judge told defense counsel that he would not give requested question 'number eight.' Counsel objected, but did not argue the point. Appellate counsel has not supplied us with a copy of question 'number eight.' In any event, '[t]he scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous. . . . A trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure that a particular jury can weigh and view the evidence impartially.' Commonwealth v. Bell, 460 Mass. 294, 303-304 (2011), quoting from Commonwealth v. Lao, 443 Mass. 770, 776-777 (2005), S. C., 450 Mass. 215 (2007). Here, the judge's voir dire questions were thoughtful, thorough, and well within his discretion.
The defendant's brief lists five questions and states that the judge 'denied' them. There is no record citation for that assertion and, in fact, the transcript reveals that trial counsel did not object to the judge's refusal to ask four of his suggested questions and objected only to the refusal to ask 'number eight.' The judge agreed to ask four of the requested questions.
Finally, the defendant argues that the guilty verdict on the operating under the influence charge was legally inconsistent with the not guilty verdict on the operating to endanger charge. This argument also fails. 'The charges of negligent operation and driving while under the influence involve distinctly separate factual issues.' Commonwealth v. Woods, 414 Mass. 343, 354 (1993). Here, the jury reasonably could have concluded that the Commonwealth had not proved that the defendant's driving was negligent, at least in the limited time that the officer observed him. For the reasons explained, supra, they equally reasonably could have concluded that he was under the influence of alcohol.
The elements of 'operation' and 'public way' were not contested.
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Judgment affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),