Opinion
21-P-183
12-27-2021
COMMONWEALTH v. Balonga T. VILAVONG.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in the District Court, the defendant was found guilty of operating a vehicle under the influence of intoxicating liquor. Thereafter, he stipulated to being a subsequent offender, waiving his right to a trial on the issue. The defendant now appeals, challenging the sufficiency of the evidence, the admission of opinion testimony by a police officer, and the lack of procedural safeguards in the second offense proceedings. For the reasons that follow, we affirm.
Background. We summarize the relevant facts as the trial judge could have found them, reserving certain details for later discussion. The defendant was arrested for driving under the influence on May 12, 2017. That day, at around 2:16 A.M. , Sergeant Bellofatto of the Fitchburg Police Department observed a black sedan driving over the speed limit. He activated his emergency lights, and the car pulled over to the side of the road. Bellofatto approached, encountering the defendant in the driver's seat. Next to him was a passenger who Bellofatto described as "passed out," likely due to intoxication. Bellofatto asked the defendant for his license and registration. The defendant obliged, producing a license but stating that he could not produce the registration because the car was not his. He explained that the car belonged to his friend, the passenger. The defendant was driving because his friend was too intoxicated.
The defendant attempted to look for his friend's vehicle registration, checking the center console and the glove compartment, where he ultimately located it. As the defendant opened the glove compartment, Bellofatto noticed a baggie with a white, powdery substance inside. Bellofatto suspected that it was narcotics but remained focused on his interaction with the defendant. He questioned the defendant on his whereabouts that evening, and the defendant stated that he and his friend had come from a local bar and restaurant. Bellofatto asked the defendant whether he had been drinking. The defendant said he had not. Despite this, Bellofatto recalled a strong odor of alcohol emanating from the car.
At trial he conceded the possibility that the odor could have come from the passenger alone.
Bellofatto proceeded to administer several field sobriety tests to the defendant. As the defendant got out of the car to comply with the field sobriety tests, Bellofatto noticed that he was leaning on the front door to pull himself up and that he held on to the side of the car as he walked. The defendant performed poorly on each of the tests. This information, along with Bellofatto's observations of the defendant, led Bellofatto to conclude that the defendant was under the influence and to place the defendant under arrest.
Before the field sobriety tests, Bellofatto learned the defendant was diabetic. To assess whether the defendant was suffering from a medical emergency, Bellofatto asked him when he had last eaten. Although the defendant initially stated that he had not eaten since lunch, he eventually admitted to eating dinner at the local restaurant he was coming from.
Bellofatto conducted an inventory search of the car prior to taking the defendant to the station. In doing so, he discovered an empty nip bottle and an empty bottle of Southern Comfort whiskey between the driver's seat and the "middle" console. He also confiscated the baggie with the white powdery substance, later confirmed to be cocaine.
The passenger was taken straight to the hospital, although he was later charged.
While processing the defendant at the station, Bellofatto continued to smell a strong odor of alcohol. The defendant also made several statements about his need to urinate, stating at one point that he was "going to piss [him]self." He was ultimately transported to the hospital as a preventive measure because he was a diabetic, and his blood sugar levels were slightly elevated.
The defendant was subsequently charged with operating under the influence of liquor (second offense), possession of a Class B controlled substance, speeding, and possession of an open container of alcohol. He waived his right to a jury trial, and a bench trial was held in January of 2018. At trial, the defendant stipulated to two of the three elements of driving under the influence: (1) operation of a motor vehicle (2) on a public way. The case against him, therefore, hinged on the third element: whether he was under the influence. Among other things, the evidence presented on this issue included the testimony of Sergeant Bellofatto, who opined that based on his observations of the defendant and the sobriety tests he conducted, the defendant was under the influence of alcohol. The defense countered this testimony, theorizing that the defendant's diabetes was behind his intoxicated-like behavior and poor performance on the sobriety tests. The judge ultimately found the defendant guilty of operating under the influence but not guilty of possession of a Class B controlled substance.
The defendant was found responsible on the speeding charge but not responsible on the charge of possession of an open container of alcohol.
As to the question whether the conviction constituted a second offense, the defendant agreed to stipulate to his prior conviction and waive a bench trial on the issue. The judge conducted a short colloquy with the defendant to ensure he understood his waiver, and the defendant confirmed that he did not wish to have a trial. The defendant was thus sentenced as a second offender. This timely appeal followed.
1. Sufficiency of the evidence. The defendant makes several arguments related to the sufficiency of the evidence.
In analyzing whether the evidence on the record is sufficient to support a conviction, "we do not weigh the supporting evidence against conflicting evidence." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 351 (2015), quoting Commonwealth v. Merry, 453 Mass. 653, 660 (2009). Rather, we assess the evidence in the light most favorable to the Commonwealth "notwithstanding the contrary evidence presented by the defendant" and ask whether it is "sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).
Because the defendant stipulated to the first two elements of operating under the influence, operating a motor vehicle on a public way, the Commonwealth was only required to prove the third element: that the defendant did so while under the influence of intoxicating liquor. See G. L. c. 90, § 2 (1 (a ) (1). With respect to this element, the Commonwealth must prove beyond a reasonable doubt that the "defendant's consumption of alcohol diminished [his] ability to operate a motor vehicle safely." Rarick, 87 Mass. App. Ct. at 352, quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). "The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely." Connolly, supra. "Proof of drunkenness is not required." Rarick, supra, quoting Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
In the light most favorable to the Commonwealth, the evidence was more than sufficient for a rational fact finder to infer that the defendant was under the influence of alcohol and that his intoxication diminished his ability to safely operate a vehicle: he was driving over the speed limit from an establishment serving alcohol, both the car and his person smelled strongly of alcohol, empty containers of alcohol were found near the driver's seat, he faltered on several sobriety tests, and he exhibited behavior consistent with intoxication.
Notably this behavior included his need to lean on the car during the field sobriety tests, as well as his crass comment about his need to urinate.
Nevertheless, the defendant maintains that the evidence was insufficient to show that his consumption of alcohol impaired his ability to drive. He points to the fact that he was pulled over for speeding, not driving erratically, which he claims "undermin[es] the allegation that he was driving while impaired." But in establishing that a defendant was operating a vehicle under the influence, the Commonwealth is not required to "prove [that] the defendant actually drove unskillfully or carelessly." Rarick, 87 Mass. App. Ct. at 354.
The defendant next challenges Bellofatto's testimony that he smelled the strong odor of alcohol while questioning the defendant. The smell of alcohol, he argues, could have been attributed to his passenger and hence "did not permit an inference regarding the amount, if any, consumed by [the defendant]." In the light most favorable to the Commonwealth, however, this inference was both reasonable and possible. See Latimore, 378 Mass. at 677. Moreover, the defendant's claim is belied by Bellofatto's testimony that he smelled alcohol coming from the defendant's person during the booking process, when the passenger was no longer present.
Finally, the defendant alleges that the evidence was equally consistent with his "diabetic condition" and was therefore insufficient to show intoxication. The evidence was not rendered insufficient just because it had the potential to support two different, yet nonmutually exclusive inferences. It was for the trial judge to evaluate the evidence presented by both parties and draw all reasonable inferences about the defendant's condition that she deemed appropriate. See Latimore, 378 Mass. at 676-677. The judge was "free, but not required, to believe" the defendant's version of events. Merry, 453 Mass. at 662. That she chose not to was not error.
"[F]actors other than alcohol may also contribute to the defendant's diminished capacity. It is not necessary that alcohol be the sole or exclusive cause. It is enough if the defendant's capacity to operate a motor vehicle is diminished because of alcohol, even though other concurrent causes contribute to that diminished capacity" (quotation and citation omitted). Rarick, 87 Mass. App. Ct. at 352.
2. Opinion testimony. Next, the defendant challenges the admission of Sergeant Bellofatto's opinion testimony. Because the defendant failed to object to the admission of this testimony at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). After eliciting testimony from Bellofatto about the observations made and the sobriety tests conducted on the morning of May 12, the prosecutor asked for his opinion on the defendant's sobriety. Bellofatto stated his opinion "that [the defendant] was under the influence of alcohol." The defendant now claims this statement constituted improper opinion testimony about the impact of the defendant's intoxication on his ability to drive.
Lay witnesses, such as police officers, testifying in an operating under the influence case may offer their opinion on "a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely." Commonwealth v. Canty, 466 Mass. 535, 544 (2013). The latter comes too close to providing an opinion on the ultimate issue of guilt or innocence. See id. at 543.
Bellofatto's testimony is similar to other cases in which convictions have been affirmed. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389 (2017) (portion of officer's testimony that defendant "was under the influence of alcohol" was proper under Canty ); Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013). Moreover, we presume that a judge conducting a bench trial "correctly instructed himself as to the manner in which evidence was to be considered in his role as factfinder." Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). We see no reason to deviate from our past decisions on this issue.
3. Second offense stipulation. The defendant finally challenges the procedures by which he was found guilty as a second offender. After the judge rendered a guilty verdict on the underlying offense, she asked defense counsel if the defendant wished to stipulate or have a bench trial on the issue of his previous conviction. She proceeded to allow a recess during which the defendant could speak to counsel and consider his options. Thereafter, the defendant and his counsel represented that he wished to move forward with the stipulation and admit his prior conviction, at which point the judge engaged him in a short colloquy to confirm his waiver and elicit his admission.
The defendant now argues that this procedure was insufficient to establish that his waiver of a bench trial was voluntary and intelligent. We disagree.
The record shows that the defendant entered into the stipulation of his own volition and with an understanding of its consequences: he had ample opportunity to speak with counsel; he participated in a comparable waiver earlier in the proceedings, which the judge expressly accounted for during the second colloquy; he observed counsel's representation to the judge that he sought to waive a bench trial; and he engaged in a conversation with the judge in which he affirmed this course of action himself and expressed his understanding and assent to the sole element of the prior offense charge. See Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 55 (2006) (error not to conduct colloquy where defendant stipulated to second offense); Commonwealth v. Chaplin, 50 Mass. App. Ct. 365, 367 (2000) (informed colloquy should accompany waiver of trial on second offense). See also Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717-718 (1997).
Here, it is important to note that a finding of a second offense does not increase the maximum penalty of incarceration time under the statute. The maximum prison sentences for both a first and a second offense are two and one-half years. See G. L. c. 90, § 24 (1) (a )(1). See also Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 574-575 (2001) (judge shall inform defendant during colloquy of additional punishment for second offenders).
Prior to accepting the defendant's stipulation to the elements of the underlying offense, the judge inquired of the defendant's age and education, confirmed that the defendant was not presently under the influence of any drugs, alcohol, or medication, was not suffering from any mental illness, and had not been forced, threatened, or improperly persuaded to enter into the agreement. She also confirmed that the defendant had sufficient time to speak with his counsel. The judge relied on these statements from the defendant to cover the second colloquy as she stated: "I've taken the earlier part of the colloquy with respect to the earlier stipulations." See Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 786 (1997) (colloquy prior to first trial covered second trial where trials were held close in time). See also Saulnier, 84 Mass. App. Ct. at 609-611 (new colloquy not required for jury waiver on second offense where first colloquy was sufficient, and judge made clear that preliminary questioning still applied). The defendant's claim that the first colloquy failed to demonstrate the voluntariness of the defendant's stipulation is not supported by the record.
Considering all these circumstances, the defendant's contentions that the "nature of the proceeding was not at all apparent" and that the defendant did not understand that he was effectively pleading guilty are unavailing.
The fact that the judge failed to inform the defendant of his intra-trial rights does not change this result as there is nothing to suggest that the information "would have made a difference to the defendant" in deciding whether to stipulate. Commonwealth v. Nolan, 19 Mass. App. Ct. 491, 499 (1985). See Mass. R. Crim. P. 12 (c) (3) (A), as amended, 482 Mass. 1501 (2019). See also Commonwealth v. Russell, 37 Mass. App. Ct. 152, 157 (1994), cert. denied, 513 U.S. 1094 (1995) ("Representation and consultation with counsel are significant factors in determining whether a guilty plea ... not accompanied by a specific recitation of a defendant's intra-trial rights was, nonetheless, knowingly and voluntarily made").
Judgment affirmed.