Commonwealth v. Proia ( 2020 )

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19-P-602 Appeals Court
COMMONWEALTH vs. STEVEN K. PROIA.
No. 19-P-602.
Norfolk. April 15, 2020. - July 27, 2020.
Present: Rubin, Blake, & Wendlandt, JJ.
Motor Vehicle, Operating under the influence, License to
operate. Alcoholic Liquors, Motor vehicle. Evidence,
Intoxication, Best and secondary. Practice, Criminal,
Instructions to jury, Required finding, Mistrial.
Complaint received and sworn to in the Wrentham Division of
the District Court Department on January 12, 2015.
The case was tried before Thomas L. Finigan, J., and
postconviction motions were heard by him.
The case was submitted on briefs.
Richard J. Dyer for the defendant.
Laura A. McLaughlin, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. The defendant was convicted after a jury trial
of operating under the influence of alcohol, third offense,
G. L. c. 90, § 24 (1) (a) (1); leaving the scene after causing
property damage, G. L. c. 90, § 24 (2) (a); and negligent
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operation of a motor vehicle, G. L. c. 90, § 24 (2) (a).
Viewing the evidence in the light most favorable to the
Commonwealth, the jury could have found the following facts:
On January 11, 2015, at about 7:30 P.M., State Trooper
Christopher Booth, responding to an accident on Route 495 south
in Franklin, observed a sport utility vehicle (SUV) with
extensive damage, and a family of six standing on the side of
the highway. The driver of the SUV, his fiancée, and four
children had been driving home to Connecticut after a day of
skiing in New Hampshire. The driver of the SUV testified that
while driving southbound on Route 495, he observed a black sedan
approach his SUV from behind at a high rate of speed, which he
estimated to be in excess of one hundred miles per hour. The
black sedan struck the rear of the SUV and the two vehicles
became attached, as the passenger's side fender of the black
sedan went underneath the driver's side wheel well of the SUV.
After four to five seconds, the vehicles separated. The black
sedan veered into the center median of Route 495. The driver of
the SUV regained control and pulled off the road. The black
sedan drove across the center median, across the travel lanes of
Route 495 north, and onto the ramp for exit sixteen. There was
a loud screeching sound and sparks radiating from the black
sedan as it left the highway.
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About one-half mile from exit sixteen, Franklin police
officers located a black Mercedes sedan parked on the side of a
local road, in a snowbank, partially blocking the travel lane,
with extensive damage to the front end, passenger side, and
windshield. There was no operator, nor anyone else, present at
the scene. The front airbags had deployed and there were "red
brown stains" on the driver's side airbag, consistent with
blood. After arriving at the scene, Trooper Booth determined
that the black Mercedes was registered to the defendant.
Trooper Booth found the defendant's driver's license on the
floor of the Mercedes.
Franklin police officers located the defendant about one-
half mile from the abandoned Mercedes, in the parking lot
outside Cole's Tavern (tavern) in Franklin. Trooper Booth met
them there. The defendant had a bleeding laceration on his
head, lacerations to his hands, "red brown stains" on his hands
and pants, and soaking wet pants and shoes, consistent with
having walked through snow. The officers detected a strong odor
of alcohol on the defendant's breath, and noticed his eyes were
bloodshot and his speech slurred. The defendant identified
himself, but had no identification on him. He was disoriented
as to his location. Trooper Booth also testified that he
observed the defendant to be "unbalanced" and "swaying side to
side." The defendant told Trooper Booth in response to
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questions that a friend had dropped him off at the tavern. He
denied driving.
Discussion. On appeal, the defendant argues first that
motions for a required judgment of not guilty should have been
allowed. The defendant moved timely for required findings of
not guilty on all charges at the end of the Commonwealth's case,
when he rested, and upon filing a postdischarge motion for a
required finding of not guilty. We review for sufficiency of
the evidence under the well-known standard of Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), asking whether, after
viewing the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.
The defendant argues that there was insufficient evidence
to support a finding of guilty beyond a reasonable doubt both of
operation of the Mercedes and of the defendant's impairment.
As to operation, the evidence was sufficient. The jury
could clearly have found that the Mercedes, registered to the
defendant, was operated on the night in question. They could
have found that it was involved in an extremely serious accident
and was found in a snowbank, severely damaged, with the
defendant's driver's license on its floor, the airbags deployed,
and blood stains on the driver's side airbag. The jury could
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have found the defendant was located outside a nearby tavern a
mere thirty minutes after the call first came in to the police
about the accident. His pants and shoes were wet as though he
had been walking through snow, and he had lacerations on his
hands and head consistent with having been in an accident and
that might have left bloodstains on the driver's side airbag
that deployed in a car that he was driving, as were found in the
Mercedes. He had no identification on him. Although
circumstantial, this evidence suffices to support the jury's
finding on operation. It is far more evidence of operation than
what was found insufficient in Commonwealth v. Shea, 324 Mass.
710 (1949), upon which the defendant relies.1
1 In Shea, 324 Mass. at 712, the defendant's wife's car was
found abandoned in Ayer one and three-quarter miles from the
location at which it had been involved in an accident. As in
this case, no percipient witness could identify who was
operating the vehicle at the time of the accident, but there was
testimony that a Westford police officer saw someone else
driving the vehicle two hours and forty-five minutes before the
accident. Id. About fifteen minutes after the accident, from a
house 300 feet away from the abandoned vehicle and located on a
chicken farm, the defendant called the owner of a garage and
asked him to tow the vehicle, which the defendant described as
having "konked out." Id. An hour after that, the defendant
went to the house of a taxi driver and asked for a ride home.
Id. When the taxi with the defendant inside was stopped by the
police, "the defendant was very wet and he had chicken feathers
on his trousers." Id.
The Supreme Judicial Court concluded that "the evidence
. . . 'tends equally to sustain either of two inconsistent
propositions [the guilt or innocence of the defendant] . . . .'"
Shea, 324 Mass. at 713, quoting Smith v. First Nat'l Bank, 99
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As to impairment, "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." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352
(2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173
(1985). Here, there was testimony from which the jurors could
have inferred that the defendant was intoxicated when found
outside the tavern shortly after the accident. The way in which
the Mercedes was left, halfway in a snowbank and sticking out
into the travel lane of a road, indeed the way it was operated
Mass. 605, 612 (1868). As the Supreme Judicial Court
subsequently explained,
"Our holding in the Shea case . . . was based on the
fact that the Commonwealth failed to introduce any
evidence placing the defendant in the hit-and-run
vehicle on the date of the offence either before or
after the accident. Moreover, there was evidence in
that case that another unknown person had been seen
operating the vehicle less than three hours before the
accident. This court concluded that '". . . [a] careful
examination of the record discloses nothing more than
speculation, conjecture or surmise upon which such a
[guilty] finding could be based. This is insufficient
to sustain the burden resting upon the Commonwealth."
Commonwealth v. Albert, 310 Mass. 811, 816-817 [1942].'
[Shea, supra at 714]."
Commonwealth v. Rand, 363 Mass. 554, 561 (1973). Here, by
contrast, there is circumstantial evidence beyond what was
present in Shea supporting an inference that the defendant was
in the driver's seat operating the vehicle, including that it
was the defendant's own car, the defendant's driver's license
was found in the car, there were lacerations on the defendant,
and there were "red brown stains" on the driver's side airbag.
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on Route 495, when combined with the evidence of intoxication
further supports an inference that might reasonably have been
drawn by the jurors, that the defendant was impaired by reason
of his consumption of alcohol in his ability to operate the
Mercedes at the time he drove it. The evidence on that element
thus suffices as well.
The defendant next argues that he is entitled to a new
trial because, when describing at trial his interaction with the
defendant in the tavern's parking lot, Trooper Booth testified
that "I asked him if he -- he wanted to do field sobriety
testing based on my observations. He stated no --."
There was an objection, which was sustained. This
testimony was, of course error, see Commonwealth v. McGrail, 419
Mass. 774, 779-780 (1995), and indeed, the judge had allowed the
defendant's motion in limine to exclude any evidence of refusal
to take field sobriety tests. The prosecutor represented to the
judge that he had specifically instructed the witness not to
mention field sobriety tests, and it is a fair (although not
proven) inference therefore that this was a deliberate violation
by the witness of the judge's order.
The defendant moved for a mistrial. This motion was denied
by the judge, who instead provided a curative instruction. On
appeal, the defendant renews his argument that this testimony
required a mistrial.
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The decision whether to allow a motion for mistrial rests
in the sound discretion of the trial judge. See Commonwealth v.
Amran, 471 Mass. 354, 359 (2015). Although the testimony was
clearly in error, and may even have amounted to deliberate
misconduct –- something we need not decide -– we think that, in
light of the curative instruction given by the judge, he was
within his discretion to deny the defendant's motion. The
curative instruction was strong. It included the following
language: "So you must act as if you -- I instruct you that you
cannot give that any consideration whatsoever when you
deliberate, and you must act as if you never heard that
testimony. . . . It would be unfair to the defendant for you to
consider it or to allow it to affect your deliberations. You
should disregard it in its entirety."
In addition to then listing many reasons why someone might
refuse to submit to a field sobriety test, by agreement of the
parties he added, "But in this particular case, the parties
stipulate that -- that the defendant, when asked by Trooper
Booth to perform field sobriety tests, he refused because he
maintained he was not driving the vehicle, which of course makes
sense for the -- when you think about it in those terms."
The defendant's agreement to the curative instruction,
after his mistrial motion was denied, of course does not waive
his right to appeal from the judge's determination to deny the
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motion for a mistrial and instead give this curative
instruction. But we think that, given the strength of the
curative instruction, the risk of prejudice from the error was
sufficiently addressed that a mistrial was not required as a
matter of law.
Finally, the defendant argues that the admission of the
trooper's testimony that the driver's license found in the
Mercedes had the defendant's name on it was not admissible.
The defendant argues first, as he did when he objected to
the admission of this testimony at trial, that the name on the
license was inadmissible hearsay. The license however was not
admitted for the truth of anything it said. Rather, the trooper
was testifying to the fact that he observed a driver's license
with the defendant's name on it. Even assuming that a name on a
driver's license amounts to a statement by the registry of motor
vehicles that that person is licensed to drive, the evidence of
what the license said in this case was not admitted for the
truth of that matter, but to show that a driver's license that
said the defendant's name, and thus might have been expected to
be in his possession, had been found at the time in question on
the floor of the Mercedes.
Before us the defendant also argues that the admission of
this testimony violated the best evidence rule. At trial,
defense counsel did object that the license itself was not
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introduced as evidence, but he never mentioned the best evidence
rule, which "deprived the Commonwealth of the opportunity to
produce the original writing, or show a sufficient excuse for
its nonproduction" (citation and quotation omitted).
Commonwealth v. Alvarez, 480 Mass. 1017, 1019 n.4 (2018).
Accord Bendelow v. United States, 418 F.2d 42, 47 (5th Cir.
1969), cert. denied, 400 U.S. 967 (1970) ("pursuit of the matter
by voir dire for the purpose of objection would doubtless have
disclosed whether the [t]rooper had retained the [driver's
license] and could produce it, whether representatives of the
prosecution had custody of it, or whether it was returned to the
defendant and was thus protected from coerced production by him
under the Fifth Amendment [to the United States Constitution].
We are left to speculation as to the result of such an
evidentiary excursion").
Even had the objection been preserved properly, whether the
best evidence rule applies to a driver's license in
circumstances like this appears to be an open question, although
the name on the license would seem to fall within the definition
of the contents of a writing. There are some nineteenth-century
cases which, if still binding, might have bearing on the
question. Thus, in Commonwealth v. Blood, 11 Gray 74, 77
(1858), the Supreme Judicial Court concluded that testimony by a
witness that he had been in the defendant's house and had seen
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jugs with labels on them that said "rye whiskey," did not
violate the best evidence rule. The court said, "The labels on
the jugs do not come within any class of written instruments,
the contents of which cannot be proved without producing the
original paper or document, or accounting for its loss or
unavoidable absence." Id. Likewise, in Commonwealth v. Brown,
124 Mass. 318, 319 (1878), the Supreme Judicial Court held that
the writing observed by the witness on a license hanging on the
wall of a liquor dealer's shop might be testified to orally.
In any event, we need not and do not reach the question.
Even assuming what we do not decide, that the best evidence rule
applies and was violated, because the claim of error was not
adequately preserved we would reverse only if the defendant has
shown a substantial risk of a miscarriage of justice. The
purpose of the best evidence rule is "'to assure the trier of
the fact of having the most direct and reliable evidence
possible of the contents of a writing . . . .' Maguire,
Evidence: Common Sense and Common Law, pages 229-230." Fauci
v. Mulready, 337 Mass. 532, 541 (1958). But on all the facts
and circumstances of this case, the risk of erroneous
recollection is very low. Contemporaneous with finding the
license, Trooper Booth discovered that the defendant, Steven
Proia, was the registered owner of the Mercedes. Indeed, he
testified that when he entered the Mercedes he found the license
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of "the registered owner, Mr. Proia," and that the name on the
license read "Steven Proia." Within minutes he was called to
the tavern, where local police had found someone matching the
description on the license, and where he met the defendant. The
likelihood is low in these circumstances that his recollection
of the name on the license is unreliable. Thus, "[e]ven if the
best evidence rule applied here, we cannot say that any
potential violation created a substantial risk of a miscarriage
of justice." Alvarez, 480 Mass. at 1019 n.4.
Judgments affirmed.