Opinion
20-P-236
05-04-2021
COMMONWEALTH v. Juan DELVALLE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI), in violation of G. L. c. 90, § 24 (1) (a ) (1). Following the verdict, a finding of guilty entered on the second or subsequent offense portion of the charge after the defendant stipulated to sufficient facts. On appeal, he argues that the Commonwealth failed to prove the element of operation, that the judge admitted improper opinion testimony, and that the prosecutor improperly referred to facts not in evidence during her closing argument. We affirm.
The defendant also was charged with indecent exposure, in violation of G. L. c. 272, § 53, but the Commonwealth filed a nolle prosequi as to that charge.
Background. Because the defendant challenges the sufficiency of the evidence, we recite the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Around midnight on August 25, 2016, State Police Trooper Joel Daoust was stopped on Gridiron Street in Springfield on an unrelated matter when he saw a motorcycle parked at the side of the road and a man, later identified as the defendant, urinating against a nearby building. Trooper Daoust drove his cruiser closer to the motorcycle, parked, and ran a search of the motorcycle's license plate number. The search indicated that the defendant was the registered owner. An inspection of the motorcycle revealed that the key was in the ignition, and a pair of riding gloves was on the seat.
Trooper Daoust approached the defendant, who was wearing a motorcycle helmet and safety glasses. The defendant appeared intoxicated. He was unsteady on his feet and had glassy eyes. In addition, Trooper Daoust detected the odor of alcohol. In response to the trooper's questions, the defendant said that he was driving home from the Waterfront, an establishment in nearby Holyoke. Trooper Daoust was familiar with the Waterfront, and testified that it was located about eight miles away from where he encountered the defendant. The defendant further told the trooper that he had not made any other stops along the way, and that he had only stopped "to piss." The defendant initially denied having consumed any alcoholic beverages; however, after he performed poorly on two roadside assessments, he said to Trooper Daoust, "I'm going to be straight with you ... I actually had three or four – four drinks[.] I'm being honest." He went on to ask whether Trooper Daoust could just follow him home or if he could park his motorcycle and call someone to take him home. Instead, having formed the opinion that the defendant was "impaired or drunk from alcohol," the trooper arrested him. During the course of the booking process, the defendant said that he did not understand why he was under arrest, and that he had not been driving a "vehicle," but had only driven his motorcycle.
The defendant admitted to being a "pothead" and said that he had smoked a "blunt" before leaving the Waterfront.
Discussion. The defendant argues that (1) the Commonwealth's evidence on the element of operation was insufficient; (2) portions of Trooper Daoust's testimony were improperly admitted and created a substantial risk of a miscarriage of justice; and (3) the prosecutor improperly referred to facts not supported by evidence in her closing argument. We address each argument in turn.
1. Sufficiency of the evidence. In order to sustain a conviction for OUI, the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) on a public way (3) while under the influence of alcohol. See G. L. c. 90, § 24 (1) (a ) (1). See also Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011). The defendant contests only the element of operation. As we have noted, the defendant admitted during the booking process that he had been driving his motorcycle. However, this admission alone is not sufficient to meet the Commonwealth's burden without some corroborative evidence. See Commonwealth v. Leonard, 401 Mass. 470, 473 (1988), quoting Commonwealth v. Forde, 392 Mass. 453, 458 (1984) (corroborative evidence needed in an operating while under the influence prosecution to support defendant's admission of operation to investigating police officers when issue of operation is contested; that evidence would be "some evidence, besides the [admission] ... that the crime was real and not imaginary"). Here, adequate corroboration was furnished by evidence that the defendant had been standing close to the motorcycle, he was wearing his helmet and protective glasses, a pair of riding gloves was on the seat of the motorcycle, and the key was in the ignition. See Commonwealth v. Adams, 421 Mass. 289, 291 (1995) (admission of operation, while "not ... enough to warrant a finding by the jury on the element of operation," was corroborated by other evidence of operation). In addition, the defendant was the registered owner of the motorcycle and he participated in roadside assessments. See Commonwealth v. Peterson, 67 Mass. App. Ct. 49, 52 (2006) (admission of operation, accompanied by evidence including that defendant was registered owner of vehicle, was present nearby, and participated in roadside assessments, along with lack of evidence that someone else operated vehicle, sufficed to show operation). This evidence, viewed in the light most favorable to the Commonwealth, amply supported the defendant's admission that he had operated the motorcycle. Accordingly, the defendant's motion for a required finding of not guilty was properly denied.
2. Alleged erroneous admission of opinion testimony. Trooper Daoust testified that the purpose of roadside assessments is as follows:
"Without putting someone back behind the wheel of a vehicle, we want to try to determine if they're impaired by alcohol or a drug ... so that we can determine whether or not they have been operating a vehicle while impaired[.]"
In addition, when describing each type of roadside assessment, he characterized the various indicia of impairment as "validated clues." Then, in his account of the defendant's performance on the assessments, he stated that he observed a number of these "validated clues." Finally, Trooper Daoust testified that, as a result of the defendant's performance on the roadside assessments, he "formed the opinion that [the defendant] had been the one operating the vehicle and that he was impaired or drunk from alcohol[.]"
For the first time on appeal, the defendant asserts that the trooper impermissibly opined that he was operating while under the influence of alcohol. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013) ("In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication" [citation omitted]). Given the absence of an objection, we must determine whether an error occurred and, if so, "whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We agree with the Commonwealth that the trooper did not specifically opine that the defendant had operated his motorcycle while under the influence of alcohol, see Canty, 466 Mass. at 544 (testimony that defendant was "probably impaired" was admissible); however, the trooper's statement that "[the defendant] had been the one operating the vehicle and that he was impaired or drunk from alcohol" came dangerously close to impermissibly asserting that the defendant had, in fact, operated his motorcycle while impaired by alcohol. See id. (testimony that defendant's "ability to drive was diminished" was inadmissible); Commonwealth v. Leary, 92 Mass. App. Ct. 332, 346 (2017) (opinion that defendant "had been operating under the influence of alcohol" was inadmissible). Furthermore, we do not condone the trooper's use of the term "validated clues" in describing his evaluation of the defendant's performance. The phrase "validated clues" lent "an aura of scientific validity" to the trooper's assessment and was better left unsaid. See Commonwealth v. Gerhardt, 477 Mass. 775, 783 (2017) (holding that the word "test" should not be used when describing roadside assessments). Despite these concerns, we conclude that even if we were to assume error, there was no substantial risk of a miscarriage of justice, where, as here, the defendant acknowledged that he consumed alcohol and that he had operated the motorcycle, and there was substantial additional evidence of both operation and intoxication.
3. Closing argument. The defendant finally argues that the prosecutor's references in her opening remarks and closing argument to his having attended "Bike Night" at the Waterfront were not supported by the evidence. In her opening statement, the prosecutor remarked, "You will also hear from Trooper Daoust [that] the defendant admitted to him that he was on his way from a nearby Bike Night and that he had smoked a blunt right before he left." In her closing argument, she stated, "the defendant had stated that he was at Bike Night at the [Water]front and had only stopped to urinate." The Commonwealth concedes that there was no factual basis to support the prosecutor's reference to a "Bike Night" but argues that the "fleeting" reference caused no prejudice. Because the defendant did not object at trial, we review to determine whether the error created a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.
We agree with the Commonwealth that the references were inconsequential in the absence of any information that "Bike Night" involved the display or operation of motorcycles or the consumption of alcohol. In addition, as to the prosecutor's closing argument, such remarks "are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury" (citation omitted). Commonwealth v. Walters, 472 Mass. 680, 703 (2015). Where, as here, the defendant admitted to consuming alcohol and to driving his motorcycle, the other evidence of his intoxication was significant, and the judge instructed the jury that opening statements and closing arguments are not evidence, the prosecutor's error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Cifizzari, 397 Mass. 560, 578 (1986) (where prosecutor referred to facts not in evidence, "the judge corrected any possible error by instructing the jury that arguments of counsel were not evidence").
The defendant suggests that the references tied him more closely to the motorcycle in the eyes of the jury. Where the defendant had already admitted riding the motorcycle, was wearing a motorcycle helmet, was standing in close proximity to the motorcycle, and the motorcycle was registered in his name, any additional effect of the "Bike Night" references could only have been slight in connecting him to the motorcycle.
Judgment affirmed.