Opinion
13-P-1714
05-12-2015
COMMONWEALTH v. MATTHEW J. DIZIO.
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, Matthew J. DiZio, was convicted after a jury-waived trial of operating a motor vehicle under the influence of intoxicating liquor, second offense, G. L. c. 90, § 24(1)(a)(1), leaving the scene of an accident causing property damage, G. L. c. 90, § 24(2)(a), and negligent operation of a motor vehicle. G. L. c. 90, § 24(2)(a). On appeal, the defendant challenges the sufficiency of the evidence with respect to the element of operation and alleges a procedural defect in his conviction of the second offense portion of the charge of operating under the influence. For the reasons that follow, we affirm in part and reverse in part.
The defendant was also charged with one count of a marked-lanes violation, on which the court found the defendant responsible, G. L. c. 89, § 4A, which was placed on file, and with one count speeding, on which the court found the defendant not responsible. G. L. c. § 90, § 17.
Background. On March 3, 2012, shortly after 1:37 A.M., Tewksbury police Officers Mike Newcomb and Christopher Lefebvre arrived at the scene of a car accident in the area of Main Street and Livingston Street in Tewksbury. The officers observed a vehicle that had driven off the public roadway and was stuck between a telephone pole and a commercial sign. The vehicle, registered to William DiZio, the defendant's father, had sustained considerable front-end damage. When the officers arrived, the vehicle was unoccupied with its windshield wipers activated, lights on, engine running with the keys in the ignition and the gear shifted into reverse. In roughly one inch of fresh snow, Officer Newcomb observed tire tracks that led from the road to the rear tires of the car, as well as one set of footprints that began just outside of the passenger door of the vehicle. According to Officers Newcomb and Lefebvre, the footprints appeared to have been made by a work boot or a snow boot.
Officer Newcomb testified that it had been snowing for roughly ninety minutes prior to his arrival at the scene.
Officer Lefebvre, on foot, followed the single set of footprints, with Officer Newcomb following in his patrol car. Both officers noticed that the trail of footprints was not in a straight line, but rather weaved from side to side. Describing the trail of footprints, Officer Newcomb commented, "It was as if someone was having difficulty walking straight." The officers found the defendant, wearing boots, at the end of the single trail of footprints. In response to Officer Newcomb asking him what was going on, the defendant stated that he had just been in a car accident in which the vehicle had crashed into a pole, and alleged that his "friend," whom the defendant could not identify or locate, was the owner of the vehicle and had been driving. The defendant also told the officers that he had been drinking "a lot."
Additional facts are discussed below in connection with the various issues raised by the defendant.
Discussion. 1. Sufficiency of the evidence of operation. When reviewing the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences in the Commonwealth's favor, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). In this case, the Commonwealth presented a compelling circumstantial case against the defendant. See Commonwealth v. Platt, 440 Mass. 396, 400 (2003). The record also contains sufficient evidence, when viewed in the light most favorable to the Commonwealth, for a rational trier of fact to find that no one else was operating the vehicle. See Commonwealth v. Peterson, 67 Mass. App. Ct. 49, 53 (2006), quoting from Commonwealth v. Shea, 324 Mass. 710, 713 (1949). Only one set of footprints led away from the unoccupied vehicle, and the officers found the defendant alone at the end of the single trail of footprints.
For example, consider the following: the condition of the vehicle when it was found by the officers -- unoccupied, the engine running and transmission in reverse; the officers' observation of a single trail of boot prints in an inch of fresh snow leading directly from the unoccupied vehicle to the defendant, who was wearing boots; and the defendant's candid admission to having just been in a car crash in which the car struck a pole. Further, there was no evidence supporting the existence of another person as the operator apart from the defendant's statement.
2. Sufficiency of the evidence of leaving the scene of an accident causing property damage. The defendant argues that the evidence was insufficient to find the defendant guilty beyond a reasonable doubt of leaving the scene of an accident causing property damage because no rational trier of fact could find that the accident caused property damage to "that other vehicle or property." Commonwealth v. Platt, 440 Mass. at 400 n.5. See G. L. c. § 24(2)(a). It is unnecessary to decide whether the defendant could be prosecuted under this statute based on causing damage to his father's vehicle, because the Commonwealth did not prove that the defendant did not make known his name, address, and the registration number of the motor vehicle involved in the accident. See G. L. c. § 24(2)(a); Commonwealth v. Platt, 440 Mass. at 400 n.5.
The vehicle operated by the defendant sustained "severe front end damage," with "the driver's side tire . . . bent." The defendant did not own the damaged vehicle -- it was the property of William DiZio, the defendant's father. The statutory language referring to "causing injury to any other vehicle or property" requires evidence that a collision caused damage "to property of another." Commonwealth v. Velasquez, 76 Mass. App. Ct. 697, 701 (2010).
3. Waiver of the right to trial by jury and compliance with G. L. c. 278, § 11A . Following the first trial and prior to sentencing, the judge inquired of the defendant, in accordance with the requirements of G. L. c. 278, § 11A, as to whether there would be a second trial or a change of plea with respect to the second or subsequent offense portion of the operating under the influence of alcohol charge. The judge remarked in the presence of the defendant and his counsel, "There's still the second offense unless [the defendant] wishes to admit." Defense counsel sought a continuance and indicated he might wish to pursue some sort of interlocutory appeal. The judge denied the defendant's motion. Following a recess, the judge proceeded to conduct a jury-waived trial on the merits of the second offense charge. Defense counsel objected to the admission of certain exhibits and argued against a conviction on the second offense portion of the charge. There was no inquiry about or request by defense counsel for a jury trial.
Under G. L. c. 278, § 11A, after the defendant has been found guilty at trial, and prior to sentencing, the judge must "inquire[] of" the defendant for a plea regarding the second or subsequent offense charge. G. L. c. 278, § 11A, inserted by St. 1967, c. 213. The purpose of this inquiry is to determine whether the defendant wishes to proceed with a second trial or instead offer to change his plea to the second or subsequent offense portion of the charge. See Commonwealth v. Koney, 421 Mass. 295, 301 n.3 (1995). Our practice is that "[i]f a defendant refuses to plead . . ., a plea of not guilty shall be entered." Mass.R.Crim.P. 12(a)(1), as appearing in 442 Mass. 1511 (2004). Here, the judge specifically inquired of defense counsel about how the case would proceed at the second stage. In the absence of a request to offer a change of plea, the judge was entitled to assume that the defendant wished to proceed with a trial. There was no objection other than a request for a continuance. The defendant's rights under G. L. c. 278, § 11A, were fully protected.
The record also indicates that there was a valid waiver of the defendant's right to trial by jury at the second stage. The defendant does not dispute that there was an adequate jury-waiver colloquy prior to the trial on the underlying offense portion of the charge of operating a motor vehicle under the influence of intoxicating liquor, and that it was accompanied by a written waiver. The first trial on the underlying charge was brief (three witnesses, fifty-two pages of transcript), and, as noted above, was immediately followed by the judge's inquiry of counsel about whether there would be a second trial or a change of plea. The judge did not inquire for a second time about whether the trial, if any, would be with or without a jury.
We have held that it is not necessary that a separate colloquy and separate written waiver of the right to trial by jury must accompany each separate criminal charge in order for a case to proceed without a jury. See Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 785-786 (1997) (Hernandez) (in a case involving two separate drug charges, one for distribution and one for distribution within 1,000 feet of a school, resulting in two separate trials, one colloquy at the outset of the proceedings was adequate to preserve the defendant's rights). In Commonwealth vs. Saulnier, 84 Mass. App. Ct. 603, 607 (2013) (Saulnier), a case involving a charge of operating under the influence of alcohol, fourth offense, a jury-waiver colloquy was conducted and a written waiver of the right to trial by jury was obtained prior to the initial trial of the underlying offense. The defendant was convicted. Thereafter, the judge said to defense counsel, "And how are we going to proceed next?" Counsel responded, "We're going to do a bifurcated trial." The judge then inquired, "And satisfied with the prior waiver with the gentleman?" and counsel answered, "[Y]es." A brief evidentiary proceeding followed, including the receipt of exhibits and closing arguments. Id. at 607-608. This constituted the second trial under § 11A. In concluding that the jury-waiver colloquy and written waiver obtained prior to the first trial were sufficient to protect the defendant's rights with respect to the second trial, we relied on the reasoning in Hernandez, supra, and Commonwealth v. Pelletier, 449 Mass. 392, 397-398 (2007) (when defendant pleads guilty to a charge involving a second or subsequent offense, a new plea colloquy need not be held during the second step of the proceeding), and concluded that a single colloquy and written waiver of the right to trial by jury were sufficient. Saulnier, 84 Mass. App. Ct. at 608-610.
Although in the present case, unlike in Saulnier, the judge did not expressly inquire about whether the second trial, like the first trial, would proceed without a jury, there was only a single charge before the court, the second offense portion of a charge to which the right to trial by jury had been waived; there was no indication that defense counsel had a strategy in mind for the second trial that was any different than the strategy he followed during the first trial; and the overall tenor of the exchange between the judge and counsel throughout the proceedings indicated that it was the defendant's intention that the second trial would proceed without a jury.
Conclusion. For the above reasons, on the charges of operating a motor vehicle under the influence of intoxicating liquor, second offense, and negligent operation of a motor vehicle, the judgments are affirmed. On the count of the complaint charging leaving the scene of an accident causing property damage, the judgment is reversed, the finding of guilt is set aside, and judgment is to be entered for the defendant.
So ordered.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 12, 2015.