Opinion
16-P-1320
08-23-2017
COMMONWEALTH v. Cynthia A. ELEVES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Cynthia A. Eleves, was convicted (1) by a District Court jury of operating while under the influence of intoxicating liquor (OUI), and (2) by the trial judge on the subsequent offender portion of the complaint. She appeals, arguing error in the admission of opinion testimony regarding her intoxication, and that the evidence was insufficient to establish that the conviction was her fourth. She also appeals from the denial of her motion for a new trial, which was based on a claim that she was deprived of the effective assistance of counsel. We affirm the judgment and the order denying her motion for a new trial.
One charge of operating a motor vehicle with a suspended license was nolle prossed before trial; in addition, on a charge of negligent operation of a motor vehicle, the defendant's motion for a required finding of not guilty was allowed. The defendant was found guilty of possessing an open container of alcohol in a motor vehicle, and not responsible for a civil marked lanes violation. Her arguments on appeal are limited to the conviction of OUI, fourth offense, and the denial of her motion for a new trial.
Background. Based on the evidence at trial, the jury could have found that, just before 7:00 P.M. on September 2, 2014, Massachusetts State police Trooper Leigha Genduso was patrolling Interstate Route 93 (I-93 or Route 93) between Woburn and Methuen when she received a dispatch call involving the operation of a black sport utility vehicle (SUV). Genduso located the SUV in the middle lane of the highway. She activated her lights and siren; the SUV moved into the right lane, and it traveled for approximately one-half mile before it entered the breakdown lane and came to a stop.
Genduso approached the SUV and observed that both front windows were down. The defendant, who was the sole occupant and driver, stated that she was coming from work in Woburn and complied with Genduso's request for her license and registration. Genduso observed that the defendant's eyes were glassy and that she was slurring her words. Genduso also detected an odor of alcohol in the vehicle. When Genduso asked the defendant if she had been drinking, the defendant responded that she had one margarita at On the Border, a restaurant in Woburn. Genduso asked the defendant to get out of her car in order to participate in field sobriety tests.
Massachusetts State Police Trooper Kyle Flanagan arrived to provide backup, and both troopers observed the defendant poorly perform the "one-legged stand" and "nine step walk and turn" tests. With a "carefree, laissez-faire type attitude," the defendant told Flanagan that she had consumed "two or three margaritas" at On the Border. Like Genduso, Flanagan observed that the defendant's eyes were glassy and bloodshot, that she was unsteady on her feet, and that she was slurring her words. Genduso formed the opinion that the defendant was intoxicated. She placed the defendant under arrest, and she and Flanagan performed an inventory of the SUV. On the passenger seat, the troopers discovered a four-pack of small white wine bottles. One bottle was missing, two were unopened, and one had been opened and partially consumed.
In a jury-waived trial on the subsequent offender portion of the complaint, the Commonwealth presented evidence of three of the defendant's prior convictions, including (1) Genduso's testimony regarding the name, date of birth, physical description, and driver's license number given by the defendant at booking; (2) a docket sheet and a judgment, entered on December 2, 1992, in the County Court for Brevard County, Florida, reflecting a plea by "Cynthia A. Descoteaux" of guilty to one charge of driving under the influence; (3) a driving record from Florida for "Cynthia Ann Descoteaux" with the defendant's date of birth, height, and address, reflecting a December 2, 1992, suspension for "driving under the influence"; (4) a September 8, 2005, notice from the Massachusetts registry of motor vehicles (RMV) to "Descoteaux, Cynthia A." regarding the status of her license; (5) an April 14, 2008, notice from the RMV to "Eleves, Cynthia A." reflecting a December 2, 1992, Florida conviction and two convictions in Lawrence District Court; and (6) the docket sheets from two Lawrence District Court cases. Finding that the Commonwealth had satisfied its burden of proof, the judge found the defendant guilty of OUI, fourth offense.
Descoteaux is the defendant's maiden name.
The address listed on the Florida driving record is P.O. Box 1231, Haverhill, MA 01831.
The notice was mailed to "Descoteaux, Cynthia A." at P.O. Box 1231, Haverhill, MA 01831.
Discussion. 1. Alleged trial errors. The defendant argues that Genduso improperly testified to her training and experience in detecting whether a driver is impaired, and that she improperly opined on the defendant's guilt when she testified to her opinion that the defendant was intoxicated. There was no error and certainly no substantial risk of a miscarriage of justice. Genduso's "opinion about the defendant's level of sobriety was admissible." Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 605 (2013). "A lay juror understands that intoxication leads to diminished balance, coordination, and mental acuity," Commonwealth v. Sands, 424 Mass. 184, 188 (1997), and in light of Genduso's testimony that the tests she was trained to administer are subjective and not scientific, a lay jury also would have understood that Genduso was not offering an expert opinion.
We see no merit in the defendant's claim of insufficient evidence to establish that she is the person who pleaded guilty in Florida on December 2, 1992, to driving under the influence. The Florida driving record for "Cynthia Ann Descoteaux" has the defendant's date of birth, reflects the 1992 conviction, and lists the defendant's address as a post office box in Haverhill. In 2005, an RMV notice was sent to "Descoteaux, Cynthia A." at the same Haverhill post office box. The defendant acknowledges that Descoteaux is her maiden name, and a 2008 notice from the RMV to "Eleves, Cynthia A." reflects the Florida conviction along with two convictions in Lawrence District Court. Taking this evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the judge could conclude beyond a reasonable doubt that the defendant has three prior qualifying convictions.
We note that the Florida conviction at issue here (from December, 1992) is different from the 1991 Florida conviction discussed in the defendant's earlier appeal to this court. See Commonwealth v. Descoteaux, 81 Mass. App. Ct. 1132 (2012). The defendant relies on that case to argue that the evidence here was insufficient to establish that she was the same person convicted in Florida in 1992; however, the evidence here was much stronger.
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2. Motion for a new trial. In her police report, Genduso stated that she was dispatched in response "to a 911 call of an erratic SUV bearing Massachusetts registration 1KM630." "The witness advise[d] he observed the vehicle leave ‘On the Border’ restaurant" in Woburn; he then observed "two vehicles in the center lane both swerve to avoid being hit by the vehicle." The SUV "nearly struck the concrete barriers on the on-ramp to [R]oute 93," "the witness stayed on the line with the desk officer at" the State police barracks in Andover, "and [he] placed his hazards on in order to continue to observe the SUV." When Genduso arrived, she "observed the 911 caller/witness to be in the center travel lane with his hazards on and the SUV further ahead in the center travel lane also." Genduso then stopped the SUV.
Originally-appointed counsel for the defendant did not move to suppress the fruits of the stop because he "believed that the government would produce the 911 audio and the identity of the caller." The Commonwealth had not done so by August 13, 2015, when the defendant discharged appointed counsel and retained another attorney. Successor counsel did not appear on the defendant's behalf until the day of trial, at which time he requested a continuance to accommodate the defendant's medical appointments. Trial counsel did not seek a continuance in order to file a motion to suppress. Arguing that she was deprived of a substantial ground of defense because the 911 call was anonymous and, therefore, her statements and performance on field sobriety tests should have been suppressed, the defendant moved for a new trial.
After hearing from the parties, the judge found that the Commonwealth was unable to produce a copy of the 911 call. However, she denied the motion for a new trial, finding "that there was little likelihood of success on a motion to suppress" because "[a]ll of the information provided to the [S]tate police by the 911 caller was corroborated by Trooper Genduso's personal observations" and "[t]here was a clear public safety concern" which obligated Genduso "to stop that SUV and conduct an inquiry." We review the judge's decision "for a significant error of law or other abuse of discretion," giving "special deference" to her rulings because she presided at the defendant's trial. Commonwealth v. Thomas, 89 Mass. App. Ct. 422, 429-430 (2016) (quotations omitted).
Setting aside the question of whether the attorneys' failure to file a motion to suppress was behavior which fell "measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we see no error in the conclusion that "better work [would not] have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The 911 caller observed the defendant's SUV leave On the Border and enter I-93, almost colliding with two vehicles and the on-ramp barriers in the process. The caller gave the color and license plate number of the SUV, he followed the SUV with his hazard lights on, and he stayed on the line with dispatch until Genduso arrived. The basis of knowledge prong clearly was satisfied, see Commonwealth v. Depina, 456 Mass. 238, 243 (2010) ; Commonwealth v. Depiero, 473 Mass. 450, 454-455 (2016), and the veracity prong was satisfied when Genduso arrived and saw a car, with its hazard lights flashing, following a black SUV bearing the reported license plate number. See Commonwealth v. Depina, supra at 244 (Commonwealth may satisfy veracity prong "by showing that the details of the information provided were corroborated by police observation or investigation"). The judge recognized that "the information gleaned from the anonymous call in the present case, corroborated by other information, was sufficiently reliable to warrant a finding that the officer had reasonable suspicion to stop the defendant's vehicle," Commonwealth v. Depiero, supra at 452, and she correctly concluded that the defendant was not prejudiced by any allegedly ineffective assistance of counsel.
Judgment affirmed.
Order denying motion for new trial affirmed.