Commonwealth v. Lopes

85 Mass.App.Ct. 341

10 N.E.3d 146

COMMONWEALTH

v.Robert P. LOPES.

No. 12–P–1661.

Appeals Court of Massachusetts, Berkshire.

Argued Dec. 4, 2013.

Decided May 28, 2014.

Edmund R. St. John, III, Adams, for the defendant.

John P. Bossé, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, KANTROWITZ, & COHEN, JJ.

COHEN, J.

The defendant appeals from two convictions arising from an incident on August 18, 2011: operating a motor vehicle while under the influence of liquor (OUI), fifth offense, pursuant to G.L. c. 90, § 24(1)( a )(1) (count one); and operating a motor vehicle while under the influence of liquor after his license had been suspended (and prior to restoration) for operating a motor vehicle while under the influence of liquor (OUI while OAS for OUI), pursuant to G.L. c. 90, § 23 (count two). With the exception of the subsequent offense portion of count one (which later was tried jury-waived), count one and count two were tried together before a District Court jury in June, 2012.

The defendant's appellate issues all relate to the introduction of evidence of his prior conviction for OUI as part of the Commonwealth's proof on count two. For the following reasons, we affirm.

Background. Prior to trial, the defendant filed a motion to bifurcate the trial so that the jury would first decide count one without hearing evidence, essential to a finding of guilt on count two, that the defendant's license previously had been suspended or revoked for a prior OUI. The judge denied the motion during a pretrial hearing held on June 18, 2012, but ruled that she would limit the purpose of any such evidence in accordance with Commonwealth v. Beaulieu, 79 Mass.App.Ct. 100, 102–103, 944 N.E.2d 1057 (2011). The defendant also filed a motion to exclude evidence of his prior OUI convictions, his chief concern being to prevent their use for impeachment purposes should he elect to testify. The judge ruled that the convictions would not be admitted or used to impeach the defendant, but that records of the Registry of Motor Vehicles (RMV) could be introduced to establish that the basis for revocation or suspension of the defendant's license was a prior OUI conviction.

Defense counsel continued to express reservations about potential prejudice resulting from the jury learning of the reason for the suspension of the defendant's license, and proposed that the defendant be permitted to stipulate to all the elements of count two with the exception of the element that he was driving while under the influence on August 18, 2011.¹The judge agreed, the stipulations were reduced to writing, and the judge conducted a colloquy with the defendant. At the conclusion of the colloquy, the judge found that the defendant's stipulations were made knowingly, intelligently, and voluntarily.

Discussion then ensued as to how count two would be submitted to the jury, and, in particular, how the verdict slip would be worded. The prosecutor voiced concern that a conviction on count two could be vulnerable because the jury would not have found all the elements of the case, and questioned whether the stipulations needed to be read to the jury. Over the prosecutor's objection, the judge ruled that she would tell the jury that there were other elements that had been agreed to by the defendant, but that the only issue before them was whether the defendant was under the influence at the time of the incident. She also ruled that the verdict slip for count two would refer simply to operating while under the influence after “suspension ... pursuant to General Laws Chapter 90, § 24(1)( a ),” and that the jury would not be told the reason for the suspension.

Three days later, when the parties reconvened to begin the trial, the judge announced that she had given further thought to complications that would arise if they were to proceed by stipulation. She concluded that doing so was problematic, especially with respect to the verdict slip and reading the complaint to the jury, and reverted to her original view that the case should be tried in accordance with the procedures approved in Beaulieu, 79 Mass.App.Ct. at 103, 944 N.E.2d 1057. The judge ruled that the Commonwealth could introduce one properly redacted OUI conviction, and assured the defendant that she would instruct the jury as to the limited purpose of this evidence. She also encouraged the parties to remind her if they had any concerns about the timeliness or adequacy of her limiting instructions.

The defendant did not object to any of the judge's revised rulings. Defense counsel simply asked that a proposed voir dire question be asked of the prospective jurors to ascertain whether they would be able to follow the judge's limiting instruction. The judge agreed to ask such a question of the venire as a whole, and to allow follow-up at sidebar. When she inquired of the venire,² no one indicated any inability to follow a limiting instruction, and there was no need for sidebar inquiry. The defendant expressed no dissatisfaction with this process.

Despite the judge's ruling that the Commonwealth could introduce one redacted certified conviction during the trial, no such evidence was introduced. Instead, in support of count two, the Commonwealth introduced without objection RMV documents pertaining to the defendant, and the testimony of an RMV branch manager who stated, based upon her knowledge of RMV procedures and her review of RMV records, that, on August 18, 2011, the defendant's driver's licensure status was “revoked ... for DWI [driving while intoxicated],” and that he had been sent notice of the revocation by letter mailed to his address by the RMV on September 23, 2009.

The Commonwealth's other evidence may be summarized as follows. On August 18, 2011, Officer Jason LaForest of the Great Barrington police department received a dispatch reporting that a person with a suspended driver's license was operating a gray pickup truck. The dispatch identified the truck's make, model, and license plate number. LaForest located the truck traveling southbound on North Plain Road and followed it for about one mile before activating the lights on his cruiser and stopping the truck. As LaForest approached the driver's side of the vehicle, the driver (identified as the defendant) sped off, and LaForest followed in his cruiser.

Over the course of about one mile, LaForest observed the truck weaving. When it approached the intersection with Wright Lane, the defendant made a sharp turn that caused the tires on the truck to emit “smoke” and leave skid marks on the road. The defendant ran over a street sign and ended up on the grassy front lawn of a house. He then opened the door and ran around to the back of the house where he hid in the trees. After being ordered three times to come out, the defendant finally emerged. He was yelling and agitated, and instead of putting his hands in the air as the officer instructed, he approached with fists clenched. The officer sprayed the defendant with pepper spray and, after a brief struggle, placed him in handcuffs.

A second officer, Sergeant William Bartini, arrived on the scene and placed the defendant into LaForest's cruiser. Bartini smelled the strong odor of alcohol on the defendant's breath. Meanwhile, LaForest inventoried the contents of the truck and seized a bottle of whiskey, a bottle of wine, and a can of beer—all of which were unopened. When LaForest returned to the cruiser, where the defendant was now secured, he, too, smelled a strong odor of alcohol.

The defendant was transported to the police station, where he needed help getting into the building. During the booking process, the defendant's speech was slurred, and at times, he appeared incoherent. He was wobbly, and he had mood swings in which he vacillated between being cooperative and uncooperative. Both LaForest and Bartini formed the opinion that he was intoxicated. According to LaForest, after the defendant was placed in a holding cell, he used the toilet and wiped himself with his T-shirt instead of the toilet paper that was in reach.

The defense called three witnesses, including the defendant. The defendant testified that, on the day of his arrest, he had been trimming his neighbor's trees in order to make some money, and had not consumed any alcohol. After finishing the job and getting paid, he drove to a store where he purchased a bottle of whiskey, a bottle of wine, and a can of beer, but he did not drink any of them.

When he was stopped by the police, he panicked and sped off towards his house at high speed, because he knew that his license had been revoked. As he hit the brakes to turn onto Wright Lane, his truck “locked up,” slid into the street sign, and landed in his neighbor's yard. The sudden stop caused him to strike his head on the steering wheel; he became dizzy and developed a headache. He then got out of the truck and walked over to some bushes, where he crouched down and tried to hide because he did not want to go to jail for driving after revocation of his license. He complied when the officer told him to come out with his hands up, but the officer nevertheless sprayed him with pepper spray. According to the defendant, any difficulty he had in walking was due to a long-standing disability caused by a work-related accident in which he broke both of his ankles and legs.

The defendant further testified that he did not use the toilet until the next morning and did not use his T-shirt to wipe himself. He wore the same clothes when he went to court for arraignment, and continued to wear them until he was taken to be held at the house of correction and received prison clothing. Prior to trial, he arranged for his personal belongings, including the T-shirt, to be picked up from the house of correction by an investigator working with his attorney.

The defense called the investigator to establish the chain of custody of the T-shirt, which was admitted in evidence. The...