Commonwealth v. Faherty

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16-P-1486 Appeals Court
COMMONWEALTH vs. KEVIN J. FAHERTY.
No. 16-P-1486.
Middlesex. December 8, 2017. - April 11, 2018.
Present: Sacks, Ditkoff, & Singh, JJ.
Motor Vehicle, Operating under the influence. Evidence, Prior
conviction, Intoxication, Blood alcohol test. Practice,
Criminal, Prior conviction, Assistance of counsel,
Sentence, Required finding. Constitutional Law, Assistance
of counsel. Due Process of Law, Assistance of counsel,
Blood alcohol test. Intoxication.
Complaint received and sworn to in the Woburn Division of
the District Court Department on December 14, 2015.
The case was tried before David E. Frank, J.
Tasha Kates for the defendant.
Gabriel Pell, Assistant District Attorney, for the
Commonwealth.
DITKOFF, J. A District Court jury convicted the defendant,
Kevin J. Faherty, of operating under the influence of
intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1). At a
subsequent jury-waived trial, a District Court judge convicted
2
the defendant as a fourth offender. We are faced with the
question whether a subsequent offense may be based on a prior
conviction for which the defendant was not entitled to (and
presumably did not receive) appointed counsel because the prior
offense carried no risk of incarceration. Concluding that it
may be, and rejecting the defendant's challenge to the
sufficiency of the evidence, we affirm.
1. Background. At approximately 2:30 P.M. on July 4,
2015, the defendant was injured while riding his motorcycle on
Pond Street in Stoneham. A Massachusetts State trooper at the
scene of the accident noticed a strong odor of alcohol and later
discovered four unopened nip bottles of Jim Beam bourbon in the
defendant's saddle bag.
The defendant was transported to a hospital. Hospital
records recorded that the defendant's serum alcohol level was
359 milligrams per deciliter. An expert from the Office of
Alcohol Testing at the Massachusetts State Police Crime
Laboratory testified that this was the equivalent of a blood
alcohol level of between .30 percent and .32 percent.
The defendant testified that the accident was caused by his
hitting something in the road while momentarily distracted. He
testified that he did not drink any alcohol prior to the
accident but decided to drink six nip bottles of bourbon to dull
the pain while waiting for medical assistance. The jury
3
convicted the defendant on both a theory of impairment and a
theory of having a blood alcohol level of .08 percent or higher.
At the jury-waived trial on the subsequent offense portion
of the complaint, the Commonwealth presented evidence that the
defendant had received a continuance without a finding for OUI
in District Court in 1989. The Commonwealth then introduced,
over objection, evidence of two convictions for OUI in New
Hampshire, from 1992 and 2005. The New Hampshire cases were
prosecuted as first offenses, and the defendant received no
incarceration but instead was fined and had his license revoked.
The judge found the defendant guilty as a fourth offender.
2. Prior offenses. In 1967, the United States Supreme
Court held that convictions obtained in violation of the right
to counsel as established in Gideon v. Wainwright, 372 U.S. 335,
344-345 (1963), may not "be used against a person either to
support guilt or enhance punishment for another offense."
Burgett v. Texas, 389 U.S. 109, 115 (1967). Accordingly,
convictions obtained in violation of the right to counsel may
not be used to impeach a defendant's credibility, see
Commonwealth v. Saunders, 435 Mass. 691, 694 (2002), or to
determine the length of a defendant's sentence. See
Commonwealth v. Proctor, 403 Mass. 146, 147 (1988).
Since 2002, Massachusetts courts have employed a
presumption of regularity (at least regarding post-Gideon
4
convictions) that the right to counsel in felony cases was
honored "unless the defendant first makes a showing that the
conviction in issue was obtained without representation by, or
waiver of, counsel." Saunders, 435 Mass. at 696. We have
applied this presumption to misdemeanors that carry the
possibility of incarceration, such as first and second offense
OUI, see Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905
(2010), and to out-of-State convictions. See Commonwealth v.
Cuevas, 87 Mass. App. Ct. 205, 207-208 (2015).
Here, the defendant was unable to rebut the presumption of
regularity; the New Hampshire court documents say nothing either
way about counsel, and the defendant testified merely that he
did not remember. The presumption of regularity, however, can
carry the Commonwealth only so far. As the defendant points
out, there is (and was) no possibility of incarceration for a
New Hampshire first offense of OUI. See N.H. Rev. Stat. Ann.
§ 265-A:18(I)(a) (2014); N.H. Rev. Stat. Ann. § 625:9(IV)(b)
(2016).1 As in Massachusetts, see Lavallee v. Justices in the
Hampden Superior Ct., 442 Mass. 228, 241 & n.15 (2004), New
Hampshire recognizes no right to appointed counsel in a criminal
proceeding in which there is no possibility of incarceration.
1 For the relevant statutes in effect at the time of the
earlier offenses, see N.H. Rev. Stat. Ann. § 265:82(I) (2004);
N.H. Rev. Stat. Ann. § 265:82-b(I)(a) (2004).
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State v. Weeks, 141 N.H. 248, 250 (1996). Accord State v.
Westover, 140 N.H. 375, 377-379 (1995). Accordingly, although
we may presume that the defendant's right to retain counsel at
his own expense, see Commonwealth v. Cote, 74 Mass. App. Ct.
709, 711 (2009), was properly honored, see Saunders, 435 Mass.
at 694, 696, the presumption of regularity gives us no
confidence that the defendant was offered appointed counsel in
New Hampshire. Indeed, the presumed regularity would be that
the defendant was not offered appointed counsel.
We must, therefore, address the question whether a
conviction, properly obtained without the provision of appointed
counsel because there was no possibility of incarceration, may
be used in a subsequent prosecution for a crime that carries the
possibility of incarceration. The United States Supreme Court
has squarely held that this is permissible under the Sixth
Amendment to the United States Constitution. Nichols v. United
States, 511 U.S. 738, 748-749 (1994).2 The Court observed that
2 Indeed, the United States Supreme Court went further and
allowed the use of an uncounseled conviction that resulted in no
incarceration, even if incarceration had been a possibility.
Nichols, 511 U.S. at 740 n.1. We need not reach this issue.
Cf. State v. Young, 863 N.W.2d 249, 281 (2015) (Iowa
constitution prohibits use of prior conviction in this
circumstance). We observe that Commonwealth v. Barrett, 3 Mass.
App. Ct. 8, 9 (1975), found error in such a circumstance. That
opinion, however, was based solely on Federal law and cannot
survive the teachings of Nichols. The question thus remains
open.
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enhancement statutes "do not change the penalty imposed for the
earlier conviction," and that repeat-offender laws punish "only
the last offense committed by the defendant." Id. at 747. The
Court reasoned that the "logical consequence" of the
constitutional validity of an uncounseled conviction is that it
may be used to "enhance the sentence for a subsequent offense."
Id. at 747. Many, though by no means all, of our sister States
have followed suit.3
Absent direction from the Supreme Judicial Court, we see no
reason why art. 12 of the Massachusetts Declaration of Rights
would forbid the use of a constitutionally valid conviction in a
subsequent case. It is easy to understand why a conviction
obtained in violation of a defendant's right to counsel may not
return to enhance a defendant's sentence in the future. The
convictions here, however, were obtained in full accordance with
3 See, e.g., People v. Nguyen, 46 Cal. 4th 1007, 1022-1023
(2009); State v. Brooks, 89 Conn. App. 427, 435, 437 (2005);
People ex rel. Glasgow v. Kinney, 970 N.E.2d 506, 508-509
(Ill.), cert. denied, 568 U.S. 944 (2012); Morphew v. State, 672
N.E.2d 461, 465 (Ind. Ct. App. 1996); State v. Tims, 302 Kan.
536, 541-543 (2015); State v. Cook, 706 A.2d 603, 607 (Me.
1998); People v. Reichenbach, 459 Mich. 109, 123-127 (1998);
Ghoston v. State, 645 So. 2d 936, 938-940 (Miss. 1994); State v.
Pike, 162 S.W.3d 464, 471-472 (Mo. 2005); State v. Spotted
Eagle, 316 Mont. 370, 375, 379 (2003); State v. Wilson, 17 Neb.
App. 846, 856 (2009); State v. Woodruff, 124 N.M. 388, 399
(1997); Glaze v. State, 366 S.C. 271, 274-275 (2005); State v.
Porter, 164 Vt. 515, 521 (1996); State ex rel. Webb v. McCarty,
208 W. Va. 549, 552-553 (2000). But see State v. Kelly, 999
So. 2d 1029, 1052-1053 (Fla. 2008); State v. Bode, 144 Ohio
St. 3d 155, 161 (2015).
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the defendant's constitutional rights. In our view, it would be
strange if art. 12 created classes of convictions, some of which
are permitted but then may not be acknowledged in the next case.
There can be little doubt that a conviction provides more
confidence when the defendant was represented by counsel at
trial. Nonetheless, a conviction obtained without counsel
because the defendant was found not indigent but declined to
retain counsel is fully admissible. Commonwealth v. Delorey,
369 Mass. 323, 325-326, 329-331 (1975). Similarly, a conviction
where the defendant chose to represent himself is fully
admissible. See McMullin, 76 Mass. App. Ct. at 905. Respect
for the defendant's constitutional rights, see Commonwealth v.
Martin, 425 Mass. 718, 720-721 (1997), not increments in
reliability, must be the touchstone here.
Moreover, the contrary rule would pose some serious
problems for the administration of justice. Crimes such as
disorderly conduct, G. L. c. 272, § 53(b), and shoplifting,
G. L. c. 266, § 30A, where a first offense is punishable only by
a fine, could never be prosecuted for a subsequent offense
punishable by incarceration, unless by some happenstance the
defendant retained counsel or the prosecution was joined with
other, more serious charges. The presumption of regularity
would lose much of its force if courts were required to go
beyond the presumption and determine whether the regularity in
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each case resulted in a conviction that counted in the future.
Seeing no constitutional basis to require such a regime, we
conclude that the New Hampshire convictions here were properly
considered as predicates for the defendant's conviction as a
fourth offender.
3. Sufficiency of the evidence. When reviewing the denial
of a motion for a required finding of not guilty, "we consider
the evidence introduced at trial in the light most favorable to
the Commonwealth, and determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547
(2017). "The inferences that support a conviction 'need only be
reasonable and possible; [they] need not be necessary or
inescapable.'" Commonwealth v. Waller, 90 Mass. App. Ct. 295,
303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707,
713 (2014). Here, the Commonwealth was required to "prove that
the defendant (1) physically operated a vehicle; (2) 'on a
public way or place to which the public has a right of access;
and (3) had a blood alcohol content percentage of .08 or greater
or was impaired by the influence of intoxicating liquor.'"
Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016), quoting
from Commonwealth v. Zeininger, 459 Mass. 775, 778, cert.
denied, 565 U.S. 967 (2011). Only the third element is
contested by the defendant.
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A breathalyzer test performed within a "reasonable time" of
operation is admissible to show a defendant's blood alcohol
level at the time of operation. Commonwealth v. Colturi, 448
Mass. 809, 816 (2007). Three hours is presumptively a
"reasonable time," subject to the "facts and circumstances in
particular cases." Id. at 816-817. Moreover, "a breathalyzer
test result showing a blood alcohol level of .08 or above,
administered within a 'reasonable time' of the operation of a
motor vehicle, as that phrase was defined in Colturi, is
sufficient to prove a defendant guilty beyond a reasonable doubt
. . . under the 'per se' theory." Commonwealth v. Dacosta, 85
Mass. App. Ct. 386, 389 (2014). These teachings apply as well
when the blood alcohol level was measured by a blood test,
rather than by a breathalyzer. Commonwealth v. Douglas, 75
Mass. App. Ct. 643, 652 (2009).
Here, the hospital blood test revealed a serum alcohol
level that was the equivalent of a blood alcohol level of
between .30 percent and .32 percent. Although the portion of
the medical records admitted at trial does not record the time
that the defendant's blood was drawn, the results appear in the
medical records prior to the description of the doctor's
examination at 4:38 P.M. (approximately two hours after the
accident). In light of this evidence, and the commonsense idea
that the routine drawing of blood for a motor vehicle accident
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victim would not ordinarily wait for the conclusion of a
doctor's examination, the trier of fact was well justified in
finding that the blood alcohol level was measured within a
"reasonable time" of the defendant's operation. See
Commonwealth v. Fernandes, 478 Mass. 725, 739 (2018) (jury may
draw reasonable inferences). Accordingly, the evidence was
sufficient to support the defendant's guilt under a theory that
he had a blood alcohol level of .08 or greater. See Dacosta, 85
Mass. App. Ct. at 389.
During the defendant's case, the defendant testified that
he consumed the alcohol between the time of the accident and the
time of the blood draw. The jury, however, were entitled to
disbelieve his testimony. See Commonwealth v. Ross, 92 Mass.
App. Ct. 377, 381 (2017). Accordingly, the evidence remained
sufficient to support the defendant's conviction at the close of
all evidence.
Because the jury specified that they convicted the
defendant under both the theory that he had a blood alcohol
level of .08 or greater and on a theory of impairment, we need
find sufficient evidence on only one of the two theories to
affirm the conviction. See Commonwealth v. Mercado, 466 Mass.
141, 155 (2013). Accordingly, we need not discuss whether the
evidence was also sufficient on a theory of impairment.
Judgment affirmed.