Commonwealth v. Leary

COMMONWEALTH v. DANIEL LEARY.

No. 15-P-470

No. 16-P-949.

Appeals Court of Massachusetts

January 18, 2017

September 29, 2017

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Hampden.

Present: Green, Agnes, & Desmond, JJ.

Motor Vehicle, Homicide, Operating under the influence. Intoxication. Evidence, Breathalyzer test, Field sobriety test, Intoxication, Unavailable witness, Previous testimony of unavailable witness, Videotape. Witness, Unavailability. Practice, Criminal, Argument by prosecutor, Instructions to jury, Lesser included offense, Assistance of counsel, Motion to suppress, Execution of sentence.

Indictment found and returned in the Superior Court Department on April 27, 2011.

A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J.; the case was tried before Tina S. Page, J.; and a motion to reduce the verdict was heard by Edward J. McDonough, Jr., J.

A renewed motion to stay execution of sentence, which was filed in the Appeals Court on June 8, 2016, was considered by Trainor, J.

Barbara Munro for the defendant.

Amal Bala, Assistant District Attorney, for the Commonwealth.

AGNES, J. Following a nine-day jury trial in the Superior Court, the defendant, Daniel Leary, was convicted of motor vehicle homicide by reckless or negligent operation while under the influence of alcohol. See G. L. c. 90, § 24G(a). The case comes before us by two routes: the defendant's direct appeal, and his appeal from an order of a single justice of this court denying his renewed motion to stay execution of his sentence pending the direct appeal.¹ For the reasons that follow, we affirm.

Background. We recite the facts as the jury could have found them, reserving several details for later discussion. On March 25, 2011, at approximately 3:30 P.M., Peter Desrosiers came to the defendant's house with a "thirty-pack" of beer. The defendant was preparing motorcycles for a "motor cross" race the next day. About one hour later, the defendant took his motorcycle to the racetrack, in Southwick, and Desrosiers followed in his truck, bringing the beer with him. At the racetrack, the defendant continued his preparations for the next day's race. At approximately 9:00 P.M., the defendant andDesrosiers left the racetrack together in Desrosiers's truck to pick up another motorcycle at the defendant's cousin's friend's home, in West Springfield. The defendant drove because Desrosiers felt drunk, having consumed as many as one dozen beers by this time. They spent about an hour at the cousin's friend's home, drinking beers that the defendant had brought with him, and then left -- without the motorcycle, as it needed repairs -- to return to the racetrack. Again, the defendant drove.

Their route took them through a residential area, along Dewey Street, where the victim was at a friend's home, celebrating another friend's recent engagement. At approximately 10:20 P.M., at the same time as the defendant was driving down Dewey Street, the victim was walking on the side of the road outside his friend's home. When the defendant saw the victim, who was to his right, he swerved to the right, striking the victim. The vehicle continued briefly along the lawn, knocking over a mailbox, before coming to a stop about sixty feet from the point of impact. The victim was taken to an area hospital, where he later died of his injuries.

Officer Brian Duffy of the West Springfield police department arrived at the scene within ten minutes of the accident. While speaking with the defendant, the officer detected a strong odor of alcohol on the defendant's breath, and he (Duffy) noticed that the defendant's eyes were glassy and bloodshot. Duffy asked the defendant if he had been drinking, and the defendant admitted to having consumed two beers. After the officer administered field sobriety tests, he and another officer who observed the tests, Michael Kennedy, formed the opinion that the defendant was impaired, and they arrested him. At the police station, the defendant blew twice into a breathalyzer machine. Each sample registered a blood alcohol concentration (BAC) of .19 percent.

On April 27, 2011, a grand jury indicted the defendant for motor vehicle homicide by reckless or negligent operation while under the influence of alcohol or with a BAC of .08 percent or greater. See G. L. c. 90, § 24G(a). The defendant's first trial, which began on March 20, 2013, ended in a mistrial. On July 25, 2013, following a nine-day retrial, at which the defendant elected to testify on his own behalf, a jury of the Superior Court convicted the defendant. The verdict form permitted the jury to convict him under either or both of two theories -- that he was under the influence of alcohol, or that his BAC was .08 percent or greater. According to the verdict form, the jury accepted the former theory, and rejected the latter. See note 7, infra.

Discussion. 1. Admissibility of breathalyzer test results. The defendant contends that the judge (suppression judge) erred by denying his pretrial motion to suppress the results of the breathalyzer test. Those results, he argues, were improperly admitted because the breath test operator did not observe him for fifteen minutes prior to administering the test, in violation of 501 Code Mass. Regs. § 2.13(3) (2010). "The purpose of the fifteen-minute waiting period is to ensure that the defendant has not brought any substance into his mouth, such as food, drink, or regurgitation by burping or by hiccoughing, that would have had a contaminating impact on the accuracy of the results, and to permit a sufficient lapse in time to allow such possible contaminants to clear." Commonwealth v. Pierre, 72 Mass. App. Ct. 230, 231-232 (2008). This regulation was designed to ensure the accuracy of the results. Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 411 (2014). However, "mere 'deviations from meticulous compliance'" do not justify the suppression of breathalyzer test results. Commonwealth v. Zeininger, 459 Mass. 775, 792 (2011), quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453 (1995). "[I]n cases where there is a 'substantial deviation,' their admission constitutes reversible error." Ibid., quoting from Pierre, supra at 235.

The record, which includes a video recording of the booking process (booking video) and the breathalyzer test, confirms that the breathalyzer test operator did not, himself, observe the defendant for the requisite fifteen-minute period. The suppression judge found, however, that there were multiple officers at the booking, and that the defendant was in the presence of one or more of them, continuously, for at least twenty-eight minutes prior to the breathalyzer test. The defendant takes issue with certain details in these findings, such as the precise times that certain officers left or returned to the booking room, and whether one officer was in a position to observe him when he was taken to another area for an additional field sobriety test.

When reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings absent clear error, but conduct an independent review of his ultimate findings and conclusions of law. Commonwealth v. Craan, 469 Mass. 24, 26 (2014). Here, we need look no further than the booking video, upon which the suppression judge relied, to confirm that the defendant was in the presence of one or more of a handful of officers, in a relatively small booking area, for more than the requisite fifteen-minute period. The booking video also confirms the testimony of one of those officers, who was with the defendant for most of the twenty-eight minutes, and who testified that he did not observe the defendant vomit, hiccough, burp, or place anything in his mouth. We agree with the suppression judge that whatever deviation there was from "meticulous compliance" goes to the weight, not the admissibility, of the results. Zeininger, 459 Mass. at 792.²

2. Admission of prior testimony of an unavailable witness. Officer Duffy, who responded to the scene of the accident, testified during the defendant's first trial, which ended in a mistrial. Three months before the date of the retrial, the Commonwealth represented to the trial judge that Officer Duffy would be unavailable to testify at the retrial for medical reasons. The day before jury selection began in the retrial, the trial judge allowed the Commonwealth's motion to admit the transcript of Officer Duffy's testimony from the first trial, over the defendant's objection. See Mass. G. Evid. § 804(b)(1) (2017). After the trial was underway, during a sidebar conference on the day Officer Duffy's testimony was to be recited, counsel withdrew his objection, telling the trial judge that the parties had agreed to the reading of the transcript. Counsel did not object when the prior recorded testimony was admitted. On appeal, the defendant now argues that the testimony was improperly admitted because the Commonwealth failed to offer evidence of Officer Duffy's unavailability. In the absence of an objection, we review the admission of thisevidence, if error, for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).

We are satisfied that no such risk is present. Certainly, had Officer Duffy's testimony been excluded, the case against the defendant would have been weaker. But, on review, the question is whether "we are left with uncertainty that the defendant's guilt has been fairly adjudicated." Ibid., quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). In this case, we are left with no such uncertainty. First, at the time of the Commonwealth's...