Com. v. Hart, 87-1389
| Decision Date | 27 July 1988 |
| Docket Number | No. 87-1389,87-1389 |
| Citation | 525 N.E.2d 1345,26 Mass.App.Ct. 235 |
| Parties | COMMONWEALTH v. James J. HART, IV. |
| Court | Appeals Court of Massachusetts |
Edward S. Englander (Anne Carney Blain, Boston, with him), for defendant.
Patricia M. Darrigo, Asst. Dist. Atty., for Com.
Before GRANT, CUTTER and KASS, JJ.
James J. Hart, IV, the defendant, concedes that when the police stopped him past midnight on April 25, 1986, he was driving under the influence of intoxicating liquor. The question he raises on appeal is whether, at the time the police first noticed him, he was operating "upon any way or in any place to which members of the public have access as invitees or licensees." G.L. c. 90, § 24(1)(a )(1), as appearing in St. 1982, c. 373, § 2. Hart was convicted of violating that statute.
At trial before a jury of six the defendant timely moved for a required finding of not guilty. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). We appraise the evidence in a light most favorable to the government, without weighing contrary evidence presented by the defense. Commonwealth v. Kelley, 370 Mass. 147, 150 n. 1, 346 N.E.2d 368 (1976). Commonwealth v. Sevieri, 21 Mass.App.Ct. 745, 750 n. 9, 490 N.E.2d 481 (1986). Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987). So measured, we ask whether the evidence was sufficient to warrant a rational trier of fact in concluding beyond a reasonable doubt that the police saw the defendant driving on a way of the sort described in § 24(1)(a )(1). Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). Commonwealth v. Savoy, 21 Mass.App.Ct. 519, 521, 488 N.E.2d 31 (1986).
Hart drew the attention of two Woburn police officers on routine patrol because he was driving his car along Dragon Court, a road, without his headlights. A flash of their cruiser's headlights evoked no response from the defendant. When the police put on the roof-top flasher, Hart ducked into a parking lot that belonged to his employer, Chomerics, Inc., stopped his car and stepped out. The police followed and, after some questions, administered field sobriety tests which Hart dramatically failed.
Dragon Court, from its point of beginning and for a distance of 1,933 feet, is a public way, having been so laid out in 1852. It proceeds thereafter as a private way until, something in excess of 2,000 feet later, it comes to a dead end at Interstate Route 93. Physically, Dragon Court does not alter as it turns from a public to private way. It has an asphalt surface and some street illumination. Along the public stretch there are some houses and commercial uses. Three dead-end cross streets run off the public portion of Dragon Court. On both sides of the private portion of Dragon Court are various commercial buildings. No gate or sign marks the transition of Dragon Court from public to private way. Affixed to a utility pole located at the mouth of a driveway to the Chomerics building and parking lot there was a sign (a little bigger than a standard no parking sign which also adorned the pole) that read: "Private Property/Chomerics Employees and Authorized Persons Only." As the sign was oriented, it appeared to pertain to the fenced-in Chomerics parking lot. Employees, customers, service personnel, vendors, deliverymen, and other callers with a business purpose used the private stretch of Dragon Court to reach their destinations. There was evidence that Chomerics maintained a gate on Dragon Court although it is not clear that the gate ever barred Dragon Court, as opposed to the entrance to Chomerics' fenced-in grounds. The point at which Hart was first observed by the police was well into the private portion of Dragon Court. His trip had begun from the Chomerics premises to which he made his retreat.
Prior to its amendment by St. 1961, c. 347, G.L. c. 90, § 24(1)(a )(1), made criminal the operation of a motor vehicle while under the influence of alcohol "upon any way or in any place to which the public has a right of access" (emphasis supplied). The quoted phrase was held to apply to property subject to a general public easement as of right, Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958). In that case the inebriated motorist had been apprehended on a private way which the public was in the habit of...
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