Commonwealth v. Fanning, 09-P-1454

COMMONWEALTH

v.DUSTIN FANNING.

09-P-1454

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: November 16, 2010.

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial in the District Court, the defendant was convicted of operating under the influence of intoxicating liquor, third offense, and negligent operation of a motor vehicle. He was found responsible on charges of speeding and possession of an open container of alcohol in a motor vehicle.

On appeal, the defendant contends that the evidence was insufficient to convict him of operating under the influence of alcohol; the judge's colloquy regarding the defendant's right to a jury trial was inadequate to ensure that he knowingly, intelligently and voluntarily gave up his right to a trial by jury; and the judge's failure to conduct a jury waiver colloquy or procure a written waiver from the defendant prior to the second half of a bifurcated proceeding pursuant to G. L. c. 278, § 11A, to determine whether the operating under the influence was a subsequent offense, constituted reversible error.

Background. The evidence in a light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), was as follows. On February 4, 2006, at 2:00 A. M., while on patrol in the West Dennis area, Dennis Officer Cleve Daniels, using stationary radar, recorded the defendant travel through an intersection at speed of fifty-nine miles per hour in a twenty-five mile per hour zone. Daniels activated the lights and siren on his police cruiser and pursued the defendant. The defendant however, continued operating his vehicle, at speeds between fifty-five to fifty-nine miles per hour. As Daniels' vehicle came within a couple of car lengths of the defendant, the defendant abruptly pulled onto the right shoulder of the road causing the tires of his vehicle to skid on the dirt and sand as it came to a stop.

The defendant produced his license and registration, and acknowledged that he was traveling 'pretty fast'. As the defendant spoke, Daniels smelled a strong odor of alcohol on the defendant's breath and asked him how much he had to drink. The defendant responded 'I don't know. I guess I had a few'. Daniels, after observing that the defendant's eyes were red and watery and his speech was difficult to understand, ordered the defendant to exit the vehicle and perform four sobriety tests. When the defendant left the vehicle, Daniels noticed a can of Budweiser beer, approximately one-fourth full, wedged between the emergency brake handle and the driver's seat.

The defendant failed three of the four sobriety tests administered to him by Daniels. Daniels formed the opinion that the defendant was under the influence of alcohol and arrested him.

At the booking desk, Dennis police Sergeant Mark Conant observed that the defendant's eyes were bloodshot and watery and that the defendant swayed from side to side and was unsteady on his feet. The defendant soon leaned against the booking desk to steady himself. After the defendant received his Miranda rights, Conant asked him how much he had to drink, and the defendant replied that he had two beers in the early afternoon then two beers later in the day. Conant also determined that the defendant was under the influence of alcohol.

Discussion. Sufficiency of the evidence. In charging a defendant with operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth 'must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely. 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.' Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). ¹

The defendant does not contend that the evidence presented by the Commonwealth is not supported in the record, rather he seeks to minimize the evidence pointing to his intoxication. However, that argument concerns the weight and credibility of the evidence, which is a matter...