Com. v. Cavallaro, 86-1345

• Decision Date: 13 April 1988
• Docket Number: No. 86-1345,86-1345
• Citation: 521 N.E.2d 420,25 Mass.App.Ct. 605
• Parties: COMMONWEALTH v. Richard R. CAVALLARO.
• Court: Appeals Court of Massachusetts

Page 420

521 N.E.2d 420

25 Mass.App.Ct. 605

COMMONWEALTH v. Richard R. CAVALLARO.

No. 86-1345.

Appeals Court of Massachusetts,

Bristol.

Argued Sept. 11, 1987.

Decided April 13, 1988.

Ellen A. Howard, Committee for Public Counsel Services, Boston, for defendant.

Ronald A. Pina, Dist. Atty., Dana A. Curhan and Cynthia A. Vincent, Asst. Dist. Attys., for Com.

Before GRANT, PERRETTA and SMITH, JJ.

PERRETTA, Justice.

At the defendant's jury trial on an indictment charging him with operating a motor vehicle while under the influence of liquor, the key and disputed issue was whether, at the time of his arrest, the defendant was operating the vehicle. The arresting officer testified that when he arrested the defendant, he was in the driver's seat of his truck. Although the truck was well into a parking lot of a twenty-four hour service station, the engine was running. The defendant testified that he arrived at the service station, went inside the attendant's building, and bought cigarettes. He and the attendant, with whom he was friendly, then went outside, got into the truck, and were there chatting for about forty-five minutes. The engine was not running. During this period, the defendant drank four or five cans of beer. In instructing the jury, the judge stated in critical part that there is "operation" of a vehicle "within the meaning of the law, when ... [the vehicle] is stopped in the ordinary course of its operation...." In the context of this case, we conclude that the instruction was misleading and, without clarification, created a substantial risk of a miscarriage of justice. We reverse.

I. The Evidence.

We recite the evidence more fully. Shortly before 2:00 A.M. on June 11, 1984, Seekonk police officer George Casey drove into the parking lot of the station which he described as "bigger than the average gas station." There were two vehicles in the lot, the attendant's car which was parked close to the building and the defendant's tow truck, which was pulled up to and parallel with the car. The defendant sat behind the wheel, and the attendant was in the passenger's seat. Casey stated that the engine was running and that he had to tell the defendant to turn it off.

In direct contradiction of Casey's testimony, the defendant related that, in the middle of the evening, he had consumed two beers while at home watching television. A little after 1:00 A.M. he drove to the gas station, pulled into the lot, turned off the engine, and went into the attendant's building to buy cigarettes. He began a conversation with the attendant, with whom he was friendly. A short time later, the two went outside and got into the defendant's truck, where the defendant drank beer and they sat talking until Casey's arrival about forty-five minutes later.

To strengthen his assertion that he had not left the engine running throughout this time, the defendant described the weather as hot and humid. This weather and time period would have caused the truck to overheat had the engine been idling while he and the attendant sat and talked. He added that, considering the cost of gas at that time (June, 1984), he would never have let the engine idle for forty-five minutes.

II. The Jury Instructions.

In the present situation, there is no evidence which would warrant a reasonable inference that the defendant's ability to drive had been diminished before he arrived at the gas station. Compare Commonwealth v. Hilton, 398 Mass. 63, 68, 494 N.E.2d 1347 (1986); Commonwealth v. Otmishi, 398 Mass. 69, 70-71, 494 N.E.2d 1350 (1986); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010-1111, 505 N.E.2d 218 (1987). In those cases there was no reason to reach the issue of whether the defendant was operating the stopped vehicle because there was evidence that warranted a reasonable inference that the defendant had previously driven the vehicle while intoxicated. The evidence of this defendant's intoxication is limited to the time he spent at the gas station. Consequently, whether he drove while under the influence of intoxicating liquor depends upon whether his truck was "in operation" during the time period when he was stopped at the station.

The only instructions given by the trial judge relevant to that determination were as follows:

"The expression 'operation of a motor vehicle' covers not only all the well known and easily recognized things drivers do as they travel on a street or highway, but also any act which would tend to set the car in motion. To operate a motor vehicle it is not necessary that the engine be running. The manipulation of any mechanical part of the vehicle, or use of any electrical agency, which, alone or in sequence, will set in motion the motor power of the vehicle is sufficient in law to constitute operation. Furthermore, a driver continues to operate his motor vehicle, within the meaning of the law, when it is stopped in the ordinary course of its operation, or even for some mechanical reason such as a stalled engine or lack of gasoline." ¹

"Operation" has many meanings depending upon the context in which the term is used. See Boardman's Case, 365 Mass. 185, 192 n. 5, 310 N.E.2d 593 (1974), and cases therein collected. The instruction given in this case reflects three basic situations.

The first is illustrated by the case of Commonwealth v. Uski, 263 Mass. 22, 160 N.E. 305 (1928). In that case the defendant was convicted of operating his automobile while under the influence of liquor by a jury that was instructed that the defendant would be guilty of that offense if they found that he "got into his automobile which was standing in the street and manipulated the machinery of the motor for the purpose of putting the automobile into motion, the defendant being in the car and in a position to control its [movements], ... whether the automobile moved or not." Id. at 24, 160 N.E. 305. The court stated that "[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle." Ibid.

This portion of the instructions was properly given. If the jury accepted Officer Casey's testimony (that the engine was running) their verdict could be based upon the penultimate sentence of the instruction ("the manipulation of any mechanical part of the vehicle, or use of any electrical agency, which alone or in sequence, will set in motion the mot[ive] power of the vehicle is sufficient in law to constitute operation").

A second situation encompassed by the model instruction is that in which a vehicle is caused to move without the power of its engine. Thus, in Commonwealth v. Clarke, 254 Mass. 566, 150 N.E. 829 (1926), the defendant was held to have operated his motor vehicle when he "moved the gear shift from reverse into neutral, in consequence of which the car moved forward and down ... [an] incline." Id. at 567, 150 N.E. 829.

There is no suggestion that the defendant's truck was ever observed moving, with or without the engine running. It follows that the second sentence of the model instruction ("To operate a motor vehicle it is not necessary that the engine be running") was, at best, inapplicable to the facts of this case.

The third situation grows out of cases such as Commonwealth v. Henry, 229 Mass. 19, 118 N.E. 224 (1918), ² where the court stated: "The word 'operated' is not ... limited to a state of motion produced by the mechanism of the car, but includes at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation." Id. at 22, 118 N.E. 224.

If the jury believed the defendant's testimony that, when he arrived at the gas station, he shut the engine off and did not thereafter turn it on, ³ the phrase "stopped in the ordinary course of its operation" becomes crucial. The jury, however, were never instructed as to how that phrase was to be construed. "If a salient point of the case was not adequately covered and the attention of the judge was called to that fact at the close of the charge, the exceptions must be sustained. The test of the charge is the impression created by it as a whole, and much must be left to the discretion of the judge." Commonwealth v. Benders, 361 Mass. 704, 707, 282 N.E.2d 405 (1972).

We are not saying that it was error to include the final sentence of the model instruction in the charge. We think to have omitted that sentence would have been unfair to the Commonwealth. However, it is the defendant's testimony which, if believed, makes the question whether the truck was "stopped in the ordinary course of its operation" a most "salient point." Ibid. Had the jury been instructed fully on the point, the defendant's guilt or lack thereof would have turned on the question whether the stop at the station was "fairly incidental to ... [the] operation" of the vehicle. Commonwealth v. Henry, 229 Mass. at 22, 118 N.E. 224. If they believed the defendant's testimony, it was open for the jury to find that, after purchasing his cigarettes, the defendant remained to visit with the attendant for a period of such duration that at the time of his arrest the stop at the station was no...