Com. v. Daley

• Decision Date: 08 May 2006
• Docket Number: No. 05-P-958.,05-P-958.
• Citation: 846 N.E.2d 787,66 Mass. App. Ct. 254
• Parties: COMMONWEALTH v. Mark N. DALEY.
• Court: Appeals Court of Massachusetts

846 N.E.2d 787

66 Mass. App. Ct. 254

COMMONWEALTH v. Mark N. DALEY.

No. 05-P-958.

Appeals Court of Massachusetts, Plymouth.

Argued March 9, 2006.

Decided May 8, 2006.

David D. Nielson for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, C.J., DREBEN, GREENBERG, LAURENCE, & VUONO, JJ.

VUONO, J.

Following a bench trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (fifth offense), G.L. c. 90, § 24(1)(a)(1), and negligent operation of a motor vehicle, G.L. c. 90, § 24(2)(a). He appeals only from his conviction of negligent operation of a motor vehicle, claiming that (1) the judge erred in denying his motion for a required finding of not guilty; and (2) the prosecutor made improper comments in closing argument.

We conclude that the evidence of the defendant's erratic driving, combined with evidence of his intoxication, was sufficient to withstand a motion for a required finding of not guilty. We also conclude that the prosecutor's remarks in closing argument did not create a substantial risk of a miscarriage of justice. Accordingly, we affirm.

1. Denial of motion for required finding of not guilty. To establish guilt under the negligent operation statute, G.L. c. 90, § 24(2)(a), "the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) upon a public way, and (3) (recklessly or) negligently so that the lives or safety of the public might be endangered." Commonwealth v. Duffy, 62 Mass.App.Ct. 921, 921, 818 N.E.2d 176 (2004). The defendant claims that there was a failure of proof as to the third factor.

We summarize the facts in the light most favorable to the Commonwealth. See Commonwealth v. O'Laughlin, 446 Mass. 188, 190, 843 N.E.2d 617 (2006). The defendant was stopped in moderate to light traffic on Route 3 by State Trooper William Tarbokas after Trooper Tarbokas observed him (1) drive his vehicle over the fog line on the left hand side of the road three or four times; (2) travel from the passing lane through the travel lane and into the breakdown lane; and (3) straddle the breakdown lane for approximately 300 feet, where he narrowly missed a four foot square orange reflective sign warning drivers of road work ahead. The defendant was driving fifty miles per hour (the posted speed limit was sixty miles per hour) and was using his windshield wipers even though it was a clear night. In addition, once the defendant pulled his car to the side of the road, he placed it in reverse rather than placing it in park.

Upon approaching the defendant, Trooper Tarbokas detected a moderate odor of alcohol and noted that the defendant's speech was "thick tongued." The defendant did not have his driver's license on his person and was unsure of his whereabouts or the time. In response to the trooper's inquiry if the defendant knew where he was, the defendant responded, "Kind of Route 3." He further stated that it was "1:30" when it was approximately 11:10 P.M. After conducting field sobriety tests and determining that the defendant was intoxicated, Trooper Tarbokas placed the defendant under arrest and transported him to the State police barracks.¹

There is sufficient support for a denial of a motion for a required finding of not guilty when "the Commonwealth produce[s] enough evidence, taken in the light most favorable to the Commonwealth, to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime [is] present." Commonwealth v. Siciliano, 420 Mass. 303, 307, 649 N.E.2d 741 (1995), quoting from Aucella v. Commonwealth, 406 Mass. 415, 416, 548 N.E.2d 193 (1990). Here, the Commonwealth produced evidence that the defendant drove while intoxicated, meandered back and forth over the fog line on the left hand side of the road, crossed over two lanes of traffic, straddled the breakdown lane for approximately 300 feet, and nearly struck a large road sign before swerving back into the travel lane. It was both reasonable and permissible for the trier of fact to infer that the defendant operated his motor vehicle in a negligent manner. See Commonwealth v. Platt, 440 Mass. 396, 403, 798 N.E.2d 1005 (2003), citing Commonwealth v. Swartz, 343 Mass. 709, 713, 180 N.E.2d 685 (1962) ("inference of defendant's guilt from all circumstances, `while not compelling, was at least permissible'").

The defendant argues that the judge erred in denying his motion for a required finding of not guilty because he was not speeding and was not involved in an accident. This argument misses the point. The statute only requires proof that the lives or safety of the public might be endangered, not that they were endangered. See Commonwealth v. Duffy, 62 Mass.App.Ct. at 923, 818 N.E.2d 176. The facts were sufficient to withstand a motion for a required finding of not guilty. See Commonwealth v. Siciliano, 420 Mass. at 307-308, 649 N.E.2d 741 (erratic operation and nearly striking traffic island sufficient evidence of negligently driving to endanger).

2. The prosecutor's closing argument. The defendant argues that the prosecutor misstated the evidence on three occasions. As the defendant did not object to the...