Com. v. Colby

• Decision Date: 24 March 1987
• Citation: 23 Mass.App.Ct. 1008,505 N.E.2d 218
• Parties: COMMONWEALTH v. Bradley W. COLBY.
• Court: Appeals Court of Massachusetts

Page 218

505 N.E.2d 218

23 Mass.App.Ct. 1008

COMMONWEALTH v. Bradley W. COLBY.

Appeals Court of Massachusetts,

Hampden.

Argued Nov. 10, 1986.

Decided March 24, 1987.

William A. Murray, III Westfield (Daniel R. Gintowt with him) for defendant.

Ariane D. Vuono, Asst. Dist. Atty., Boston, for Com.

Present GREANEY, C.J., and QUIRICO and KASS, JJ.

RESCRIPT.

The defendant was tried before a jury of six on a complaint charging that he operated an automobile while under the influence of intoxicating liquor, in violation of G.L. c. 90, § 24(1)(a )(1). In his opening statement to the jury the prosecutor said the Commonwealth would present evidence that about 3:30 or 3:40 A.M. on August 17, 1985, police officers of the city of Westfield found the defendant's automobile parked on a public street with the engine running, headlights on, and the defendant lying across the front seat asleep and under the influence of intoxicating liquor. Defense counsel followed immediately with an opening statement conceding that the defendant was found asleep in the front seat of his automobile with the engine running and the headlights on, and further admitting that the defendant was not only under the influence of intoxicating liquor, but that he was actually intoxicated as established by the fact that he had registered a reading of .17 in a Breathalyzer test administered by the police pursuant to G.L. c. 90, § 24(1)(e ). Defense counsel contended however, (1) that at all times material to the alleged offense the defendant's automobile was not on a "way" within the meaning of that word as it is used in G.L. c. 90, § 24(1)(a )(1), and (2) that whatever the defendant did with reference to his automobile while he was under the influence of intoxicating liquor did not constitute the operation of a motor vehicle within the meaning of the statute in question. The trial addressed these two issues.

When the Commonwealth rested, the defendant filed a motion for a required finding of not guilty. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The only question raised by that motion was the sufficiency of the evidence introduced up to that point in the trial to warrant the submission of the case to the jury on the question of the defendant's guilt. Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). The rules and standards by which the sufficiency of the evidence for such a purpose is determined have been so often and so recently stated in judicial opinions in this Commonwealth that it is not necessary to repeat or quote from them at length here. See, e.g., Commonwealth v. Baron, 356 Mass. 362, 365, 252 N.E.2d 220 (1969); Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975); Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), which is based on Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); and Commonwealth v. Hilton, 398 Mass. 63, 64-65, 494 N.E.2d 1347 (1986).

After hearing arguments by counsel for both parties, the judge denied the defendant's motion for a required finding of not guilty. Counsel made no objection thereto. Mass.R.Crim.P. 22, 378 Mass. 892 (1979). Since no question has been raised on this point, further comment thereon is not required.

After the denial of the motion for a required finding of not guilty, the defendant presented his testimony and that of several witnesses and then rested. There was no rebuttal evidence. The defendant did not renew his motion for a required finding of not guilty, and counsel proceeded with their final arguments. The judge then instructed the jury, and there were no questions raised or saved by counsel. The jury returned a verdict of guilty, after which the defendant filed and perfected the present appeal. Since the only legal issue raised by and argued in this appeal is the sufficiency of the Commonwealth's evidence to warrant the submission of the case to the jury, in deciding this issue we shall consider only the Commonwealth's evidence, and not the evidence presented by the defendant after the Commonwealth rested.

The defendant contends that the evidence to that point in the trial was deficient with respect to two elements of the crime charged against the defendant, those elements being (1) whether the place where the defendant allegedly operated a motor vehicle was a "way" within the meaning of that word as used in G.L. c. 90, § 24(1)(a )(1), as appearing in St. 1982, c. 373, § 2, and (2) if the answer to the first question is in the affirmative, whether the acts and conduct of the defendant constituted the operation of a motor vehicle at the time when, and at the place where, it is conceded by the defendant that he was under the influence of intoxicating liquor. We shall consider those two questions separately, emphasizing that for the purposes of this decision we make no attempt to summarize the evidence on both sides of the questions. Rather, we inquire only into "whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient, as to each [of the two factual questions], to permit the jury to infer the existence" of the facts which the Commonwealth is required to prove on these two elements of the offense charged against the defendant. Commonwealth v. Sandler, 368 Mass. at 740, 335 N.E.2d 903. Commonwealth v. Seay, 376 Mass. 735, 737, 383 N.E.2d 828 (1978).

1. The operation of "a motor vehicle while under the influence of intoxicating liquor" is not punishable as a crime unless it occurs "upon any way or in any place to which the public has a right of access...." G.L. c. 90, § 24(1)(a )(1). The Commonwealth's evidence showed that the crime charged against the defendant occurred on East Mountain Road in Westfield. East Mountain Road is maintained by the city as a public way, and the traveled portion is paved with asphalt or concrete. It has traffic lanes marked on its surface. There are street lights overhead, and there are hydrants along the shoulders of the road as a part of the public water system. When the police first saw the defendant's automobile with its engine running, its headlights on, and the defendant sleeping in the front seat, the two left wheels of the automobile were on the road's paved travel...