Commonwealth v. Antonio P. Teixeira.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-475
COMMONWEALTH
vs.
ANTONIO P. TEIXEIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals his conviction, after a bench trial,
of operating a motor vehicle under the influence (OUI) of
intoxicating liquor in violation of G. L. c. 90, § 24 (1) (a)
(1). 1 On March 18, 2021, Brockton Police responded to the scene
of a "car versus pole" accident. The defendant was found inside
the vehicle, bleeding from an injury to his lip, with glassy,
bloodshot eyes, slurred speech, and slow reaction times. He was
unsteady on his feet and struggled to locate his driver's
license when asked to produce it.
1 The defendant was initially charged with operating under the
influence of liquor, second offense, pursuant to G. L. c. 90,
§ 24 (1) (a) (1), and of committing a marked lanes violation.
He was found not responsible for the marked lanes violation and,
because there was no certified conviction or other probative
evidence of a first OUI offense, the judge found the defendant
guilty of violating G. L. c. 90, § 24 (1) (a) (1), first
offense.
On appeal, the defendant argues that there was insufficient
evidence presented at trial to prove that he was under the
influence of alcohol, as opposed to a different source of
impairment (i.e., drugs, or a head injury). Accordingly, the
question before us on appeal is whether "any rational trier of
fact could have found the essential elements of the crime," and
specifically that the defendant was under the influence of
alcohol, beyond a reasonable doubt. Commonwealth v. Latimore,
378 Mass. 671, 677 (1979). Notably, the police officer who
responded to the scene provided lay opinion testimony that the
defendant was "impaired, under the influence of alcohol."
Because we conclude that the Commonwealth presented sufficient
evidence of intoxication by alcohol, we affirm.
Background. At 9:30 P.M. on March 18, 2021, Brockton
Police Officer Shannon O'Donnell was dispatched to the scene of
a single vehicle crash. O'Donnell testified that the fire
department and emergency medical services (EMS) were already
present when she arrived. O'Donnell saw that the defendant's
truck had collided with a utility pole on the side of the
street. The defendant was still inside the vehicle and was
bleeding profusely from a laceration on his lip. O'Donnell also
observed that the defendant's eyes were "very red and glassy"
and that his speech was slurred. O'Donnell asked the defendant
for his driver's license, but the defendant was slow to respond,
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appearing to search for the license but quickly forgetting he
had been asked to do so. The defendant exited the vehicle to
continue looking for his driver's license but was unsteady on
his feet and held on to his vehicle to support himself. As he
attempted to search for his license, he dropped certain items
from his pockets onto the ground, and almost fell over trying to
pick them up. At one point, the defendant confusedly offered
EMS personnel a credit card in lieu of his license.
When the defendant indicated that he wanted to drive the
truck home, Officer O'Donnell informed the defendant that his
truck would have to be towed, due to the damage from colliding
with the pole. The defendant replied, "What pole? I didn't hit
a pole." Officer O'Donnell did not administer field sobriety
tests as the defendant was injured and required transport to the
hospital.
O'Donnell did not smell an odor of alcohol from the
defendant, nor did she find any containers of alcohol in the
defendant's vehicle. Nevertheless, based on her observations of
the defendant's person and conduct, O'Donnell formed the opinion
that the defendant "was impaired, [and] under the influence of
alcohol." Specifically, in response to questions posed to her
during direct examination, O'Donnell stated:
COMMONWEALTH: At this time, based on your
observations of the defendant and the accident, did
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you form a suspicion as to the state of the
defendant's sobriety?
O'DONNELL: Yes.
COMMONWEALTH: What was that suspicion?
THE COURT: A suspicion or an opinion?
COMMONWEALTH: Suspicion.
THE COURT: Suspicion?
DEFENSE COUNSEL: Objection.
THE COURT: No, he can have that.
O'DONNELL: I had suspicions that he was under the
influence of alcohol and impaired.
. . . .
COMMONWEALTH: Did you form an opinion about the
defendant's state of intoxication?
O'DONNELL: Yes.
COMMONWEALTH: And that opinion was?
O'DONNELL: That he was impaired, under the influence
of alcohol.
There were no objections to the above testimony, other than
the one objection noted above. The Commonwealth did not present
other witnesses. There was no evidence of erratic driving by
the defendant prior to the crash, and there was no testimony
that the defendant had been observed consuming alcohol or drugs.
4
On cross-examination, defense counsel brought out that O'Donnell
had not smelled an odor of alcohol or observed any containers of
alcohol in the truck. The defendant testified in his defense.
He stated that he spent the entire day working at a job site of
the construction company that he owns, and did not leave until
9:00 P.M. While driving home, a cat ran in front of the
defendant's vehicle, causing him to swerve and hit a telephone
pole. The defendant reported that he was "pretty out of it,"
and did not recall speaking with any police officers.
At the close of the evidence, the trial judge found that
there was "no reasonable doubt that [the defendant] was impaired
by alcohol at [the] time [of the accident]." The judge
expressly did not credit the testimony of the defendant to the
contrary.
Discussion. The sole question before us is whether the
evidence presented at trial was sufficient to support the
conviction. The defendant claims that the Commonwealth failed
to produce sufficient evidence that the defendant was under the
influence of alcohol (as opposed to some other intoxicating
substance, or that he was suffering from a head injury). The
applicable standard is well-known and asks "whether, after
viewing the evidence 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."
5
Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443
U.S. 307, 318-319 (1979).
"[T]o establish the defendant's guilt of OUI in violation
of G.L. c. 90, § 24(1)(a)(1), the Commonwealth was required to
prove that the defendant (1) operated a motor vehicle, (2) on a
public way, (3) while under the influence of alcohol."
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017).
We focus on the third element, as no other element is in
dispute. "[T]he phrase 'under the influence' refers to
impairment, to any degree, of an individual's ability to safely
perform the activity in question." Commonwealth v. Veronneau,
90 Mass. App. Ct. 477, 479 (2016). "Thus, 'in a prosecution for
[OUI], 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.'" Id.,quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).
The Commonwealth "need not prove that the defendant was drunk,
only that alcohol diminished [his] ability to operate a motor
vehicle safely." Gallagher, supra at 392. Importantly, a
driver's "diminished capacity to operate a motor vehicle may be
inferred from circumstances other than actual bad driving."
Commonwealth v. Rollins, 59 Mass. App. Ct. 911, 912 (2003).
In this case the evidence of impairment was certainly more
than sufficient. The defendant was involved in a single car
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crash. His speech was notably slurred; when asked to produce
his driver's license he was slow to respond and fumbled with his
wallet; he was unsteady on his feet; and he seemed confused and
forgetful. Perhaps it is possible, as the defendant argues,
that these indicia were induced by the crash, where the
defendant seriously hit his head. But on sufficiency review we
do not view the evidence in the light most favorable to the
defendant; here a factfinder could certainly infer that the
defendant's impairment preceded the crash, and indeed, caused
it. Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018),
citing Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219
(2006) (evidence of a single car accident may be the basis for
an inference that the defendant-driver was impaired when the
accident occurred).
The closer question is whether there was sufficient
evidence that the defendant was impaired due to the consumption
of alcohol. In the case law addressing the sufficiency of
evidence to prove impairment by alcohol, there heretofore
generally has been something more than the indicia here -- that
is, the glassy eyes, slurred speech, unsteadiness, etc. -- that
ties the defendant's impairment to alcohol, as opposed to
possible other causes. This additional evidence can include,
for example, an odor of alcohol on the defendant's breath, the
presence of containers of alcohol in the car, observation of the
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defendant drinking, the failure of field sobriety tests, or
admissions by the defendant. See Gallagher, 91 Mass. App. Ct.
at 390-391 (sufficient evidence of intoxication included, among
other signs, bloodshot, glassy eyes, an odor of alcohol, slurred
speech, and the defendant's admission to having consumed three
beers immediately prior to driving); Commonwealth v. Rarick, 87
Mass. App. Ct. 349, 354 (2015) (the moderate odor of alcohol on
the defendant's person, his red and glassy eyes, and the fact
that he was speeding while driving were sufficient);
Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011)
(a strong odor of alcohol on the defendant's person, poor
balance, and glassy bloodshot eyes in addition to other
indicators, were deemed sufficient evidence of impairment).
Such evidence was not present here. There was, however,
Officer O'Donnell's testimony that the defendant was intoxicated
by alcohol. The Massachusetts case law establishes that lay
witnesses, including police officers, may offer opinion
testimony "regarding a defendant's level of sobriety or
intoxication," provided they do "not opine whether a defendant
operated a motor vehicle while under the influence of alcohol or
whether the defendant's consumption of alcohol diminished his
ability to operate a motor vehicle safely." Commonwealth v.
Canty, 466 Mass. 535, 544 (2013). See Commonwealth v. Jones,
464 Mass. 16, 17 n.1 (2012). Canty expressly holds that such
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lay opinions as to a defendant's sobriety are both relevant and
probative of impairment. Canty, 466 Mass. at 542 ("a lay
opinion is relevant only where, as with sobriety, 'the principal
objective symptoms are so well known' that we consider the lay
opinion to have probative value" [citations omitted]). Here, in
response to the question whether she had formed an opinion as to
the defendant's intoxication, O'Donnell opined without objection
that she believed the defendant "was impaired, under the
influence of alcohol." Her testimony did not impermissibly
offer an opinion on the ultimate issue. Rather, under Canty,
her testimony was probative evidence that the defendant was
intoxicated by alcohol, and not some other intoxicating
substance. 2
Because, pursuant to Latimore, we conclude that O'Donnell's
opinion testimony and the other indicia of the defendant's
intoxication discussed above, taken together, constitute
2 The defendant did not raise a Daubert/Lanigan-type challenge to
O'Donnell's testimony -- that is, the defendant did not argue
that O'Donnell was not competent (or that the foundation was
inadequate) to distinguish between impairment caused by alcohol,
as opposed to other possible causes. Commonwealth v. Lanigan,
419 Mass. 15 (1994).
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sufficient proof that the defendant was under the influence of
alcohol, we affirm.
Judgment affirmed.
By the Court (Vuono, Singh &
Englander, JJ. 3),
Clerk
Entered: November 15, 2023.
3 The panelists are listed in order of seniority.
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