Commonwealth v. Bouley

• Decision Date: 14 August 2018
• Docket Number: No. 17-P-984.,17-P-984.
• Citation: 93 Mass.App.Ct. 709,107 N.E.3d 1246
• Parties: COMMONWEALTH v. Steven BOULEY.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 709

107 N.E.3d 1246

COMMONWEALTH

v.Steven BOULEY.

No. 17-P-984.

Appeals Court of Massachusetts, Essex..

Argued February 7, 2018.

Decided August 14, 2018.

Elena M. Rosnov, Saugus, for the defendant.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

Present: Rubin, Maldonado, & Ditkoff, JJ.

DITKOFF, J.

The defendant, Steven Bouley, appeals from his conviction by a District Court jury of operating a vehicle under the influence of drugs (OUI), G. L. c. 90, § 24(1)(a )(1), second offense, following a single-car accident.¹ A responding emergency medical technician (EMT)² testified that, in his opinion, the defendant was actively overdosing at the scene of the accident, and this testimony was corroborated by the observations of a responding police officer and the defendant's admission to having taken fentanyl. We conclude that the jury could convict the defendant without additional proof as to the amount or concentration of narcotics in the defendant's system or expert testimony regarding how that amount or concentration would impair a defendant's ability to operate a vehicle safely. Concluding as well that the trial judge's implicit qualification of the EMT as an expert was proper and that the trial record does not set forth the factual basis for a claim of ineffective assistance of counsel, we affirm.

1. Background. At approximately 9:00 P.M. on May 24, 2015, a Lawrence police officer and an EMT affiliated with Lawrence General Hospital responded to the scene of a single-car accident at an intersection in Lawrence. The officer arrived less than five minutes after the accident was reported, observing that the vehicle appeared to have struck a fire call box on the side of the road and rolled back into the intersection. The defendant was hanging partially out of the vehicle with his feet inside the open driver's side door and his body lying face-up on the street.

The defendant was unconscious, with pinpoint pupils, and was barely breathing as the EMT and other paramedics arrived. A fireman gave the defendant a sternal rub, but the defendant could not be resuscitated. Based on his observation of the defendant and his experience in responding to hundreds of drug overdoses in over eighteen years as a certified paramedic, the EMT believed the defendant was actively overdosing. Following his training, the EMT administered Narcan

, an emergency medication used to treat opioid overdoses. The EMT testified that Narcan serves no medical purpose other than to bind to opioids in a person's system and allow the body to restore natural respiration, and that it would not revive a person who was not breathing as a result of any other condition. The defendant responded to the Narcan

immediately; his pupils dilated, he began breathing normally, and he awoke in an agitated state. The EMT stated all of the defendant's signs and symptoms -- including his response to the Narcan -- were consistent with an overdose caused by ingesting opioid narcotics.

The defendant, now awake and alert, spoke with the EMT and the police officer, responding appropriately and coherently to questions. He admitted to the EMT that he had taken fentanyl

, a synthetic opioid painkiller, and he told the officer he owned the vehicle and was driving at the time of the accident. The defendant, however, said he believed the accident was caused by malfunctioning because of recent repairs to the car's drive shaft.³

The defendant also said he hit his head, and there was a slight red mark on his forehead, but there was no sign of a concussion, brain trauma

, or any other injury to the defendant. The accident did not appear particularly severe or life-threatening, and there was no evidence of any internal impact or trauma that would have impaired the defendant's breathing.

After the defendant was taken to the hospital, the officer conducted an inventory search of the vehicle. He found a needle and syringe on the driver's seat floor -- items commonly used to ingest narcotics.⁴

The defendant was tried for OUI by a District Court jury. During the trial, the judge denied the defendant's motions for a required finding of not guilty both at the close of the Commonwealth's case and at the close of all the evidence. The jury convicted the defendant.

2. Sufficiency of the evidence. "When reviewing the denial of a motion for a required finding of not guilty, ‘we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133, 99 N.E.3d 821 (2018), quoting from Commonwealth v. Oberle, 476 Mass. 539, 547, 69 N.E.3d 993 (2017). "The inferences that support a conviction ‘ need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303, 58 N.E.3d 1070 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713, 1 N.E.3d 762 (2014). This determination, moreover, "is to be measured upon that which was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Sepheus, 468 Mass. 160, 164, 9 N.E.3d 800 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98, 920 N.E.2d 45 (2010).

To prove the crime of operating a motor vehicle under the influence of a narcotic drug under G. L. c. 90, § 24(1)(a )(1), the Commonwealth was required to establish that the defendant (1) physically operated a vehicle; (2) on a public way; (3) while under the influence of a narcotic drug. See Commonwealth v. Ferola, 72 Mass. App. Ct. 170, 172-173, 889 N.E.2d 436 (2008) ; Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392, 75 N.E.3d 638 (2017). The defendant here contests only the final element, which is established by showing that the use of a narcotic drug resulted in the "impairment, to any degree, of an individual's ability to safely perform the activity in question." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479, 60 N.E.3d 1175 (2016).

Temporarily setting aside whether the EMT's testimony was properly admitted (an issue we address, infra ), see Sepheus, 468 Mass. at 164, 9 N.E.3d 800, the evidence was sufficient to prove the defendant's guilt beyond a reasonable doubt. The jury heard testimony from an EMT who was a certified paramedic, experienced in hundreds of drug overdoses, that, shortly after exhibiting the classic symptoms of an opioid overdose and being resuscitated by medication exclusively used for treating opioid overdoses, the defendant admitted to having taken fentanyl

. See Gallagher, 91 Mass. App. Ct. at 390–392, 75 N.E.3d 638 (affirming OUI conviction where defendant admitted to consuming alcohol and "exhibited classic symptoms of alcohol intoxication"). It is undisputed, moreover, that the defendant was found in that condition outside of the driver's seat of a car he admitted to driving only minutes after it crashed into a call box on the side of the road. See Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219, 852 N.E.2d 1124 (2006) (jury may infer impairment by intoxicating substance from "the manner in which the accident occurred, and the defendant's conduct ... immediately after the collision"). This evidence was corroborated by testimony from an experienced police officer, who also collected a needle and syringe from the driver's seat floor of the defendant's vehicle.

Considering that the defendant was unconscious and barely breathing at the scene of the accident, the jury could reasonably infer that whatever amount of fentanyl he took was sufficient to impair his capacity to operate the car safely. See Commonwealth v. AdonSoto, 475 Mass. 497, 510, 58 N.E.3d 305 (2016) ("slurred speech" and "unsteadiness when standing"); Gallagher, 91 Mass. App. Ct. at 392-393, 75 N.E.3d 638 ("classic symptoms" of intoxication). See also Reynolds, 67 Mass. App. Ct. at 219-220, 852 N.E.2d 1124 (evidence of accident, defendant's appearance thereafter, and admission to taking narcotics supported inference that defendant's ability to drive safely was impaired at the time).

Contrary to the defendant's contention, this case is not like Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 831 N.E.2d 375 (2005). There, the defendant operated a van at excessive speed, passed vehicles in a no-passing zone, and ultimately caused a fatal crash. Id. at 71-72, 831 N.E.2d 375. The Commonwealth relied upon hospital records showing that the defendant tested positive for amphetamines to argue that the defendant's use of amphetamines made her operation negligent.⁵ Id. at 73-74, 831 N.E.2d 375. We reversed, as "the amphetamine theory of criminal liability ... lacked evidentiary foundation -- both by way of any evidence concerning the concentration of amphetamines in the defendant's system as well as any expert evidence concerning the effect of such substances on her ability to drive." Id. at 75-76, 831 N.E.2d 375. In short, the mere fact that the defendant had amphetamines in her system was not a proper basis for an argument that the amphetamines impaired her ability to drive.

Here, by contrast, there is much more than the mere presence of an opioid in the defendant's system. The defendant had enough fentanyl

in his system to render him unconscious and barely capable of breathing, much less operating a motor vehicle. He admitted to using fentanyl, responded to Narcan in a manner consistent with an overdose, and had struck a fire call box with his motor vehicle. Thus, the evidence before the jury was sufficient to allow the jury to conclude that the defendant had consumed an excessive amount of fentanyl and that the fentanyl affected his ability to operate a motor vehicle. Shellenberger requires that these factors be demonstrated to show impairment caused by drug use; it is not necessary that they be demonstrated by expert medical testimony.

3. Admissibility...