Com. v. Manning, 95-P-307

• Decision Date: 05 August 1996
• Docket Number: No. 95-P-307,95-P-307
• Citation: 41 Mass.App.Ct. 18,668 N.E.2d 850
• Parties: COMMONWEALTH v. Thomas Allen MANNING.
• Court: Appeals Court of Massachusetts

Page 850

668 N.E.2d 850

41 Mass.App.Ct. 18

COMMONWEALTH v. Thomas Allen MANNING.

No. 95-P-307.

Appeals Court of Massachusetts Suffolk.

Argued Dec. 14, 1995.

Decided Aug. 5, 1996.

Salvatore F. DiMasi, Boston, for defendant.

Patricia M. Blackburn, Assistant District Attorney, for Com.

Before JACOBS, GILLERMAN and IRELAND, JJ.

JACOBS, Justice.

Called to the vicinity of South Station in Boston, a Boston police officer approached the defendant standing across the street from a smoldering Pontiac automobile resting on top of a downed traffic control signal. In response to the officer's questions, the defendant stated that he was the operator of the vehicle, that he was drunk and should be arrested. The officer accommodated him, and the defendant later was convicted by a District Court jury of operating under the influence of intoxicating liquor (G.L. c. 90, § 24). The only issue on appeal is whether the defendant's admission of operation was sufficiently corroborated to support the denial of his motion for a required finding of not guilty.

The Commonwealth's case consisted entirely of the officer's testimony which essentially was as follows: Responding to an 8:30 P.M. radio call on February 4, 1994, at an intersection near South Station, he saw a 1993 Pontiac on a traffic island in the middle of the intersection and "resting on top of a downed ... traffic control signal." He observed firefighters rolling up fire hoses and that the Pontiac was "soaked ... with water" and "still smoldering." After a conversation with a fire lieutenant, the officer walked across the street to the defendant, who was standing alone on the sidewalk approximately thirty feet from the Pontiac. Next to the defendant was a brief case, a golf bag, and fishing tackle. The officer observed "a couple of people on the other side of the intersection ... probably ... fifteen, twenty feet" from the Pontiac. He did not recall there being more than seven or eight people, other than police and firefighters, in that entire area at the time. In response to the officer's questions, the defendant stated that he was the operator of the Pontiac and that he had not been injured in the accident. He also produced a Missouri driver's license and indicated that the registration was in the Pontiac and that the vehicle was a rental, a fact later verified by the police. An odor of alcohol about the defendant gave rise to further questions, leading the defendant to say he had consumed four drinks. The officer, applying field sobriety tests, then asked the defendant to recite the alphabet. After three failed attempts at recitation, the defendant was able to sing the entire alphabet. There followed a balancing test (standing on one leg while touching the tip of one's nose with the right and then the left index finger) which the defendant performed successfully, just before blurting out that he was drunk and should be arrested.

The defendant relies on the corroboration rule, adopted in Commonwealth v. Forde, 392 Mass. 453, 457-458, 466 N.E.2d 510 (1984), and holding that a conviction may not be based solely on evidence of an extrajudicial confession by the accused. Id. at 457, 466 N.E.2d 510. "[T]he corroboration rule applies to admissions as well as confessions," Commonwealth v. Costello, 411 Mass. 371, 375, 582 N.E.2d 938 (1991), and where the evidence offered in corroboration of an out-of-court admission is entirely ambiguous and speculative, it is error to deny a defendant's motion for a required finding of not guilty. Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988).

"In its typical form, the corroboration rule requires that there be some evidence tending to establish the 'corpus delicti'...." Commonwealth v. Forde, supra at 458, 466 N.E.2d 510. ¹ Noting that the purpose of the rule is "to guard against conviction for imaginary crimes," ² the Supreme Judicial Court adopted an orthodox definition of "corpus delicti" as meaning merely "the specific kind of loss or injury embraced in the crime charged" and not requiring also evidence of "a criminal agency as the source of that loss or injury." Ibid. "Thus, in a homicide case, the corroborating evidence need only tend to show that the alleged victim is dead." Ibid. Consistent with this approach, the court declared that "[t]he corroborating evidence need not point to the accused's identity as the doer of the crime." Ibid. Commonwealth v. Smith, 33 Mass.App.Ct. 947, 948, 603 N.E.2d 922 (1992).

The statute under which the defendant is charged, G.L. c. 90, § 24(1)(a)(1), as amended through St.1992, c. 379, § 1B, permits conviction upon proof that a defendant, "upon any way ... operate[d] a motor vehicle while under the influence of intoxicating liquor...." It does not require within its elements proof of tangible injury or an identifiable victim. Accordingly, the orthodox definition of "corpus delicti" discussed in Commonwealth v. Forde, 392 Mass. at 458, 466 N.E.2d 510, does not directly advance our analysis. The Federal courts have chosen with respect to Federal crimes "in which there is no tangible corpus delicti" to require that "the corroborative evidence must implicate the accused in order to show that a crime has been committed." Smith v. United States, 348 U.S. 147, 154, 75 S.Ct. 194, 198, 99 L.Ed. 192 (1954). Wong Sun v. United States, 371 U.S. 471, 489 n. 15, 83 S.Ct. 407, 418 n. 15, 9 L.Ed.2d 441 (1963). See also United States v. Lopez-Alvarez, 970 F.2d 583, 591 (9th Cir.1992); 7 Wigmore, Evidence § 2072 & n. 4 (Chadbourn rev. 1978 & Supp.1996). Our decisions, however, do not appear to have adopted the Federal approach in cases in which tangible loss or injury is not an aspect of the elements of the charged crime. Rather, in Commonwealth v. Leonard, 401 Mass. at 472-473, 517 N.E.2d 157, the Supreme Judicial Court, in reviewing a conviction under G.L. c. 90, § 24, alluded to, and apparently adopted as a standard, its statement in Commonwealth v. Forde, 392 Mass. at 458, 466 N.E.2d 510, that the required corroboration be "some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary." In another case involving application of the corroboration rule to a conviction of driving under the influence of alcohol, this court also relied on the statement in Commonwealth v. Forde, supra, to the effect that independent evidence that the crime was real was sufficient to corroborate. Commonwealth v. McNelley, 28 Mass.App.Ct. 985, 987, 554 N.E.2d 37 (1990). Compare Commonwealth v. Adams, 421 Mass. 289, 291, 657 N.E.2d 455 (1995), which states that the element of operation requires corroborative evidence that the defendant was the driver but relies on Commonwealth v. Leonard, supra, and Commonwealth v. Forde, supra, as establishing the standard for corroborative evidence in an operating under the influence prosecution.

"The test governing the required finding issue is the familiar one stated in Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), and, in...