January 25, 2011.
78 Mass.App.Ct. 644
Motor Vehicle, Operating under the influence, Operation, Jury Instructions, Defendant's decision not to testify, Assistance of counsel, Prior conviction, Speedy trial
The defendant was convicted by a jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense. On appeal, the defendant made several challenges. First, he challenged whether he actually operated a motor vehicle, as required by G. L. c. 90 § 24. Second, the defendant claimed that the Commonwealth did not present a sufficient amount of evidence to prove that he operated a motor vehicle or that the defendant had prior convictions. Third, the defendant argued that the prosecutor’s representation of the evidence during his closing argument created a substantial risk of miscarriage of justice. Fourth, the defendant contended that his right to testify was muzzled. Fifth, the defendant claimed the judge abused his discretion by denying his motion to replace his attorney. Lastly, the defendant argued that he was denied his right to a speedy trial. The judgment was affirmed.
Facts
The defendant was discovered in the driver’s seat of the van slumped over the wheel with a sandwich in his hands. The defendant was under the influence of intoxicating liquor. The keys were in the ignition and the electricity of the car was on; the engine was not. To remove the key from the ignition, the police officer had to turn the ignition back. The police officer did not observe anyone else in the van when he arrested the defendant.
At trial, the defendant testified that he had moved to the driver’s seat from the passenger’s seat and began eating his sandwich. However, the defendant testified that he did not remember anything else until the police officer woke him up.
Operation of the Motor Vehicle
The Appeals Court first rejected the defendant’s argument that he was not actually operating a vehicle by sitting in the car without turning on the engine. Referring to the SJC’s decision in Commonwealth v. Uski, 263 Mass. 22, the Court concluded that turning the key in the ignition until the electricity was on constitutes operation because it is part of the sequence required to start the engine. Furthermore, because the policy behind the OUI statute is to protect the public from intoxicated drivers, the Court stated that an intoxicated person who is sleeping behind the wheel is still potentially dangerous because the person may wake up and decide to drive. Therefore, a jury could conclude that the defendant operated a vehicle.
The Court rejected the defendant’s interpretation of Commonwealth v. Ginetti, 400 Mass. 181, which the defendant read as requiring the engine to be engaged for there to be operation. The Court in the Ginetti case applied Uski and found that for there to be operation, the engine must have been started or use must be made of the power from the engine. Ginetti did not require that the engine be engaged.
Finally, the Court concluded that the jury instructions did not create a substantial risk of a miscarriage of justice because the instructions did not compel the jury to find that there was operation simply because the defendant was sleeping in the driver’s seat of the van with the key turned in the ignition.
Sufficiency of the Evidence
The defendant argued that the Commonwealth did not present a sufficient amount of evidence to prove that the defendant put the key into the ignition and turned the key. The defendant pointed to the conflicting testimony by the defendant and the police officer about the vehicle’s keys and the testimony of the friend who had left the defendant in the van. However, even if that testimony was given credit, the Court found that the jury could have reasonably inferred that the defendant moved to the driver’s seat and put the key into the ignition.
The defendant also argued that that there was not sufficient evidence of prior convictions at the offense portion of his trial. The Court held that there was sufficient evidence that the defendant was the person who was previously convicted of similar offenses three times. The certified records of convictions and dockets sheets are non-testimonial and, therefore, admissible under the Confrontation Clause. Furthermore, the trial judge properly instructed the jury about the documents and advised them that the Commonwealth carried the burden of proving that the defendant committed the previous offenses.
Prosecutor’s Representation of the Evidence
The Court disagreed with the defendant’s contention that the prosecutor misstated the evidence in his closing and created a substantial risk of a miscarriage of justice that required a reversal. The prosecutor properly responded to the defense counsel’s argument that the defendant was a victim of a conspiracy. The prosecutor’s statement about one of the defense witness’s testimony corroborating the police officers’ testimony was also not a misstatement.
Defendant’s Right to Testify
The Court also disagreed with the defendant’s argument that he was not permitted to testify that on the night he was arrested his plan was to sleep in the van overnight so he could go to court in Gloucester the next day. The Court noted that the defendant’s friend was allowed to testify that the defendant planned to sleep in the van because he had to work early the next day. Per the record, it also appeared that the defendant accepted his attorney’s advice not to testify about his reasons for sleeping in the van to avoid opening the door to evidence of the defendant’s previous OUI convictions.
Defendant’s Attempt to Replace his Counsel
The Court found that the trial judge did not abuse his discretion when he denied the defendant’s motion before the trial to replace his attorney given the circumstances surrounding the motion. The defendant had requested new counsel after his attorney argued a motion for a new trial on his behalf without the defendant’s presence. However, the Court noted that he defense counsel was the defendant’s third attorney, the defendant’s case was two years old, and the defendant’s presence at the argument for the new trial would not have affected the outcome of the motion. Lastly, the Court noted that any lawyer who represented the defendant would have done the same in a similar situation.
Right to a Speedy Trial
The defendant also argued that he was denied his right to speedy trial. Under Mass.R.Crim.P. 36(b)(1)(C), a criminal defendant is entitled to a dismissal of the charges if the trial is not held within one year of the return day in court and the Commonwealth cannot justify the delay. In rejecting this argument, the Court noted that 331 days were excluded due to continuances, the defendant’s unavailability due to another trial, and the defendant’s motion to dismiss. Therefore, the trial occurred within 365 days of the arraignment.
The judgments were affirmed.
- Prepared by JM
