Opinion
14-P-1609
10-23-2015
COMMONWEALTH v. NICHOLAS PIRES.
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, Nicholas Pires, appeals from his conviction of operating a motor vehicle while under the influence of alcohol. The sole issue on appeal is whether the evidence presented by the Commonwealth was sufficient to permit the jury to conclude beyond a reasonable doubt that he was under the influence of alcohol.
The jury was warranted in finding that on May 25, 2012, at about 1:30 A.M., Massachusetts State police Trooper Jason Trout was on duty at a sobriety checkpoint at the intersection of Day and Gallivan Boulevard in South Boston. The checkpoint was located in an area of the roadway that was well-lit and flat. Trooper Trout observed the defendant's black Ford Explorer pull into the screening area. The defendant pulled into the parking space as instructed by the trooper. As Trooper Trout approached the vehicle, he detected a "strong odor of alcohol coming from the interior of the vehicle." There were several passengers in the vehicle, and the trooper initiated a conversation with its operator, the defendant. As Trooper Trout got closer to the defendant, he noticed the odor of an alcoholic beverage coming from the defendant's breath. He also observed a half full bottle of "Hennessy Cognac" in the middle console. The defendant produced his driver's license and registration, but Trooper Trout found his speech difficult to understand. The defendant stated that he "was coming from Stoughton and going back to his residence in Boston," which Trooper Trout testified was not possible when traveling in the direction the defendant was headed.
The defendant does not challenge the validity of the sobriety checkpoint in that location and at that time, nor the manner in which his vehicle was stopped. See Commonwealth v. Murphy, 454 Mass. 318, 323-329 (2009).
As a result of these observations and the "glassy" appearance of the defendant's eyes, Trooper Trout ordered him to step out of his vehicle to perform field sobriety tests. The trooper directed the defendant into a parking lot that was well lit, flat, and free from debris. He asked the defendant whether he had any injuries, and the defendant explained that, previously, he had been shot in his left leg. The defendant informed Trooper Trout, however, that he was an athlete and would have no problem standing on his right leg for ten seconds to perform the test. Although initially cooperative, the defendant's demeanor changed and he became "very uncooperative" with the testing. Although instructed not to begin the test until told to do so, the defendant began the one-leg stand prematurely. On "three or more occasions [the trooper] had to terminate the test" because the defendant could not keep his leg up for more than one second. Furthermore, the defendant had to use his arms to balance himself, and he put his leg down to keep himself from falling over. Trooper Trout then conducted the nine-step walk-and-turn test, instructing the defendant to walk "heel-to-toe" while keeping his arms by his side. Trooper Trout observed that the defendant was "very agitated" and "didn't take any of it seriously," taking nine steps in a fast long stride while counting out loud.
The defendant does not challenge the validity of the exit order. See Commonwealth v. Blais, 428 Mass. 294, 298 (1998).
As a result of his observations during the initial encounter with the defendant, the change in the defendant's demeanor, and his observations of the defendant's difficulty in maintaining his balance and following directions as he tried to perform the field sobriety tests, Trooper Trout formed the opinion that the defendant was operating under the influence of alcohol, and placed him under arrest.
Following the close of the Commonwealth's case, the defendant testified on his own behalf. He told the jury that earlier on the day in question, he went to work, played basketball, got a haircut, and ate dinner with friends in the town of Stoughton. The defendant explained that playing basketball requires using your balance, and that he has never had any trouble doing lay-ups or shooting three-pointers. The defendant described the sobriety checkpoint and testified that he had no problem parking his vehicle. He further testified that he "might have had one beer" between the hours of 10 and 11 A.M. He told the jury that he had complied with the trooper's requests, and had no trouble stepping out of the vehicle. At trial, the defendant showed the jury an injury he said he had sustained to both legs after being shot. He did not offer any medical records concerning this injury.
Discussion. The defendant filed a motion for a required finding of not guilty at the close of the Commonwealth's case, and again at the close of the evidence. We review the evidence under the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
In Commonwealth v. Connolly, 394 Mass. 169, 173 (1985), the Supreme Judicial Court explained that, in order to prove that the operator of a motor vehicle was under the influence of alcohol, the Commonwealth is not required to "prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely." Neither breathalyzer test results nor field sobriety test results are required in order for the Commonwealth to meet its burden of proof in a case such as this. See, e.g., Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353 (2015).
The evidence presented by the Commonwealth during its case-in-chief, including the odor of an alcoholic beverage emanating from the defendant's person, his unsteadiness, and his admission that he had consumed some alcohol that evening, supported "an inference of diminished capacity to operate safely due to intoxication." Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994). Contrary to the defendant's argument, this is not a case in which the circumstantial evidence points equally to an inference that the defendant was under the influence of alcohol as well as the inference that he was not under the influence, such that proof of the defendant's guilt is left "to conjecture or surmise." Commonwealth v. Gordon, 15 Mass. App. Ct. 901, 902 (1982). Here, when the evidence is viewed in the light most favorable to the Commonwealth, there is strong support for the inference that the defendant's capacity to operate a motor vehicle safely was impaired. Although the defendant's testimony could be regarded as evidence that he was not under the influence of alcohol at the time of his arrest, the jury were free to disregard this evidence. Therefore, this is not a situation in which the Commonwealth's case deteriorated between the time the Commonwealth rested and the close of all the evidence. See Commonwealth v. Merry, 453 Mass. 653, 663-664 (2009).
Judgment affirmed.
By the Court (Katzmann, Vuono & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 23, 2015.