Opinion
14-P-1681
10-08-2015
COMMONWEALTH v. TIMOTHY R. WAIDNER.
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 by a District Court jury of operating under the influence of intoxicating liquor, operating a motor vehicle with a suspended license, and failure to stop for police. He argues that it was error to deny his motion for a required finding of not guilty, that the Miranda warnings given him before his arrest were insufficient, and that the prosecutor's closing argument was improper and warrants reversal. We affirm.
Immediately following the jury trial, the defendant was convicted in a jury-waived trial of operating under the influence of intoxicating liquor, fourth offense.
Background. "Because the defendant argues that his motion for a required finding at the close of the Commonwealth's evidence should have been allowed, we summarize the evidence presented in the Commonwealth's case-in-chief." Commonwealth v. Perry, 432 Mass. 214, 215 (2000). At approximately 2:10 P.M. on July 12, 2013, Wellfleet police Officer Jared Meegan was driving northbound on Route 6 in a marked police cruiser when he passed a motor vehicle traveling southbound. He saw the vehicle cross the fog line and noted that it had no inspection sticker. After turning around and following the vehicle, Officer Meegan saw it make a quick right turn at a high rate of speed onto Old Wharf Road. Officer Meegan became concerned that the vehicle was trying to elude him. After he observed the vehicle come within inches of hitting a guardrail, Officer Meegan activated his emergency lights and siren.
The vehicle did not stop but continued along for approximately one-tenth of one mile before turning into a long driveway. After the vehicle drove down the driveway and came to a stop, Officer Meegan approached and spoke with the operator, who was the defendant. As they spoke, the officer noticed a strong odor of alcohol coming from the defendant's person. The defendant's eyes were bloodshot and his speech was slurred. Officer Meegan removed the defendant from the vehicle and placed him in handcuffs after he observed multiple open containers of alcohol in the vehicle and learned that the defendant did not have a valid driver's license. The defendant was unsteady on his feet. Officer Meegan read the defendant his Miranda rights, and the defendant stated that he had a Bloody Mary for breakfast and that he saw Officer Meegan turn around and knew that he was going to be pulled over. Having formed the opinion that the defendant was intoxicated, Officer Meegan placed the defendant under arrest. Before the vehicle was towed, Officer Meegan removed four empty beer cans and seven empty "nip" bottles of hard alcohol.
The officer read the rights from a card, which he testified stated: "You have the right to remain silent. Anything you say may be used against you in the court of law. You have the right to talk to a -- you have the right to talk to an attorney and have him or her present while you're being questioned. If you cannot afford to hire an attorney one will be appointed to represent you before any questioning if you wish one. If you decide to answer questions now without an attorney present you'll still have the right to stop at any time until you talk to your attorney. Do you understand each of these rights I have explained to you?" The defendant indicated that he understood his rights and that he was willing to speak with Officer Meegan.
The defendant's passenger, to whom the vehicle belonged, also was intoxicated and was taken into protective custody.
After he was arrested, the defendant was placed in a cruiser operated by Wellfleet police Officer Kevin LaRocco. Officer LaRocco observed that the defendant was slurring his speech, seemed unsteady on his feet, and smelled of alcohol. Indeed, the smell of alcohol was so strong that Officer LaRocco opened his windows while transporting the defendant to the police station. Officer LaRocco testified that the defendant was "very emotional," and that it was his opinion that the defendant was under the influence of alcohol. His testimony was echoed by that of Wellfleet police Detective Geraldine Lapense, who booked the defendant when he arrived at the police station. During booking, Detective Lapense observed the defendant to be "very emotional." She stated that "his eyes were very bloodshot; his speech was slurred, it was difficult to understand him at times, . . . and there was an odor of alcohol coming from him." From her observations, Detective Lapense formed the opinion that the defendant was intoxicated.
Discussion. 1. Motion for required finding. The defendant first claims error in the denial of his motion for a required finding of not guilty. Such a motion "will be allowed only where the trial judge finds that 'the evidence is insufficient as a matter of law to sustain a conviction on the charge.'" Commonwealth v. Williams, 422 Mass. 111, 120 (1996), quoting from Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). In deciding whether the evidence was sufficient, "we determine whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Arce, 467 Mass. 329, 333 (2014). See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Several portions of the transcript reflect inaudible sidebar conversations which the defendant, without opposition, has attempted to reconstruct. The defendant states that, in one such conversation, he moved for a required finding of not guilty. He states that "[t]rial counsel cannot remember whether [the motion was] made with or without argument," but that the motion was "[o]verruled by [the] judge." No motion for a required finding appears on the docket, and the record does not reflect the basis upon which the defendant so moved. Because the defendant argues in his brief on appeal that the Commonwealth's evidence of impairment was insufficient, we confine our analysis to that issue.
To sustain a conviction of operating under the influence of intoxicating liquor, "the Commonwealth [must] prove that liquor diminished the defendant's capacity to operate a motor vehicle safely." Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988). Here, there was evidence that "the defendant was unsteady on his feet, had bloodshot and glassy eyes, smelled of alcohol, and slurred his words." Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). Officer Meegan observed the defendant drive the vehicle across the fog line and take a sharp turn, nearly hitting a guardrail. The defendant admitted to drinking an alcoholic beverage that day, there were empty liquor containers in the car, and he admitted that he did not stop when he knew Officer Meegan was attempting to pull him over. From such evidence, the jury were entitled to infer "a causal relationship between the defendant's consumption of alcohol and his diminished ability to" operate a motor vehicle. Stathopoulos, supra at 456. See Jewett, supra at 635-636, and cases cited.
2. Miranda warnings. The defendant's next argument, that he was not properly apprised of his Miranda rights, requires little discussion. The defendant did not file a pretrial motion to suppress his statements, it is unclear from the reconstructed record on what basis he objected to Officer Meegan's testimony regarding his statements, and he "may not raise these issues for the first time on appeal." Commonwealth v. Festa, 369 Mass. 419, 426 (1976). "Having reviewed the evidence, however, we see no merit in the defendant's contentions in any event." Id. at 427. The defendant admitted that he did not have a valid license to drive, there were open alcohol containers in plain view, and the defendant's passenger was extremely intoxicated. Officer Meegan asked the defendant to exit the car, noticed that the defendant was unsteady on his feet, and placed him in handcuffs. He then administered proper Miranda warnings, which the defendant indicated that he understood, before asking the defendant how much he had to drink that day. These events could have left little doubt in the defendant's mind as to the crime about which he was being questioned. Even if the defendant was arrested on outstanding warrants, as he argues on appeal, and not on a charge of operating under the influence, "Miranda v. Arizona, 384 U.S. 436 (1966), does not require police to inform a suspect of the nature of the crime about which he is to be interrogated and therefore does not entitle the defendant to new warnings if the questioning turns to a different crime." Commonwealth v. Medeiros, 395 Mass. 336, 345 (1985). There was no error.
3. Prosecutor's closing argument. Finally, we see no error in the prosecutor's closing argument regarding the absence of evidence that the defendant's passenger drank the alcohol from the empty containers found in the vehicle, and that the police officers had received specific training to detect when someone is impaired by alcohol. The argument accurately summarized the police officers' testimony, and was a fair response to defense counsel's argument that it was the passenger, and not the defendant, who drank the alcohol from the empty containers. "There was no objection at trial as to these particular claims," and we see no risk of a miscarriage of justice from them. Commonwealth v. Montez, 450 Mass. 736, 747 (2008). In any event, "the judge's forceful instruction that the defendant is presumed innocent, that he does not have to prove his innocence, and that the Commonwealth must prove each essential element of the crimes charged beyond a reasonable doubt mitigated any potential prejudice." Id. at 748.
There was no objection to the police officers' testimony that the defendant was under the influence of alcohol. Lapense and LaRocco both testified that they had received training to determine whether someone was under the influence of alcohol, and Meegan testified on cross-examination that he was attending the police academy and had received training in this area.
It appears from the reconstructed record that the defendant objected to the argument regarding the officers' ability to determine intoxication, on the basis that the prosecutor was "attempt[ing] to turn them into experts." The objection apparently was overruled, and there was no objection to any other portions of the prosecutor's closing.
The judge instructed the jury before the trial began that "[t]he law requires that the prosecutor, who is sometimes referred to as the assistant district attorney or the Commonwealth, prove the case to you, prove the defendant is guilty beyond a reasonable doubt. The law does not require the defendant to prove his innocence or produce any evidence," and his first instruction after closing arguments was that "[t]he law presumes the defendant to be innocent of all the charges against him," and "[t]his burden of proof never shifts."
Judgments affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 8, 2015.