Opinion
14-P-699
08-11-2015
COMMONWEALTH v. MATTHEW S. ROBINSON.
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
After a District Court bench trial, the defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI). On appeal, he argues that the judge conducted an inadequate jury waiver colloquy, and that the Commonwealth presented insufficient evidence that he had been driving while under the influence. We affirm.
The defendant was found not guilty of leaving the scene of an accident causing property damage and not responsible for a civil infraction of failing to keep right.
Background. The judge could have found the following facts. At approximately 2:30 A.M., James McKean heard a crash outside his home, and saw a motor vehicle driving away after hitting his daughter's parked vehicle. McKean called the police, and Officer David Stilton came to investigate. A few feet from the damaged parked motor vehicle there was a large piece of a tan-colored vehicle that apparently had broken off during the crash.
The officer returned to his cruiser and drove around looking for such a vehicle. Approximately 150 to 200 yards from the crash site, he found a tan 2002 Ford Taurus sedan parked outside a residence. The vehicle had heavy damage to the front left quarter panel, and was still warm to the touch. Only about twenty to thirty minutes had elapsed since the crash.
When the officer knocked on the door of the residence, the defendant's father answered. The officer asked to speak with the person who drove the Taurus that evening, and the father retrieved the defendant. The officer smelled an overwhelming odor of alcohol emanating from the defendant's breath and person, and observed that the defendant's eyes were bloodshot and glassy. The defendant admitted that he had been driving the Taurus and stated that he had been in an accident in Boston five or six hours earlier, but had not reported it. The defendant also admitted to drinking. He claimed that he had returned home an hour or two earlier.
The defendant failed three field sobriety tests, his speech was slurred, and he was argumentative and difficult. After being arrested and taken to the police station, the defendant was administered a breathalzyer test. The result was a reading of .12. A bottle of 100 proof Rumplemintz schnapps was found in a sweatshirt the defendant had been wearing that night.
Discussion. 1. Jury waiver. The defendant argues that the jury waiver colloquy was inadequate because the judge did not ascertain the defendant's level of education or confirm that he was not under the influence of alcohol at the time of the waiver. However, there is no "rigid list of questions by which a judge determines whether a waiver of a jury trial is intelligent and voluntary. . . . The omission of inquiries suggested as appropriate in [Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979)] alone are not enough to make a colloquy inadequate." Commonwealth v. Hendricks, 452 Mass. 97, 107 (2008).
That is not to say that the judge's sparse colloquy was ideal. For an example of how to conduct a thorough jury waiver colloquy, see Cypher, Criminal Practice and Procedure § 31.14 (4th ed. 2014).
Here, the judge satisfactorily explained the differences between a jury trial and a bench trial, and provided the defendant with "adequate comprehensible information about the particular right" he was waiving. Ciummei, 378 Mass. at 515. Although it would have been preferable had he done so, see Commonwealth v. Towers, 35 Mass. App. Ct. 557, 559 (1993), the judge was not required to inquire about the defendant's level of education. Furthermore, the judge could assess from the defendant's appearance and demeanor whether he was under the influence of drugs or alcohol at the time of the waiver. Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 905 (1998). Finally, the judge also could take into account the signed jury waiver form and defense counsel's certificate. See Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 785 (1997). On the specific facts of this case, the judge could find that the defendant's waiver was voluntary and intelligent. See Commonwealth v. Hardy, 427 Mass. 379, 383-384 (1998).
At sentencing, counsel informed the judge that the defendant is a college graduate, with a political science degree from the University of Massachusetts (Amherst), and also has been "involved in paralegal studies."
Because the judge explained to the defendant the differences between a jury and bench trial, the judge need not have inquired into the defense counsel certificate and the defendant's discussions with his attorney. See Commonwealth v. Hardy, 427 Mass. 379, 383-384 (1998).
2. Sufficiency of the evidence. The defendant also challenges the sufficiency of the evidence. Taking the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the evidence was more than ample to establish the elements of OUI.
The defendant's father testified that the defendant reported having consumed alcohol at a party in Somerville earlier that evening. Officer Stilton testified that when he arrived to investigate, the defendant's vehicle was still warm to the touch, indicating that the defendant had not been home very long. The officer also testified that there was an overwhelming odor of alcohol emanating from the defendant's breath and person, and that the defendant had slurred speech. Furthermore, the defendant failed field sobriety tests, and a breathalyzer test resulted in a reading of .12. Taken together, there was ample evidence from which the judge could infer that the defendant was under the influence of intoxicating liquor while driving home, and did not first become intoxicated after arriving at his house, as the defendant contends.
Judgment affirmed.
By the Court (Berry, Kafker & Cohen, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 11, 2015.