Commonwealth v. Conway

• Citation: 89 Mass.App.Ct. 1129,54 N.E.3d 605 (Table)
• Decision Date: 27 June 2016
• Docket Number: No. 15–P–559.,15–P–559.
• Parties: COMMONWEALTH v. Michael P. CONWAY.
• Court: Appeals Court of Massachusetts

89 Mass.App.Ct. 1129

54 N.E.3d 605 (Table)

COMMONWEALTH

v.Michael P. CONWAY.

No. 15–P–559.

Appeals Court of Massachusetts.

June 27, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal from his convictions of various offenses arising from his operation of a motor vehicle while intoxicated, the defendant claims error in the denial of his motion to suppress and in the admission of certain documentary evidence at his trial. The defendant also contends that the evidence at trial was insufficient to support his convictions. We discern no error and conclude that the evidence was sufficient to establish the elements of each crime of which he was convicted. We address his various claims in turn.

1. Motion to suppress. In our review of a ruling on a motion to suppress, “[w]e accept the findings of the motion judge absent clear error, but determine independently ‘the correctness of the judge's application of constitutional principles to the facts as found.’ “ Commonwealth v. Santiago 470 Mass. 574, 578–579 (2015)

(citation omitted). We briefly summarize the findings of the motion judge.

Salem police Officer Robert Cunningham observed a vehicle at approximately 1:00 A.M. traveling at a high rate of speed without headlights accelerate across Congress Street without pausing, and then take a left turn into a parking lot where it parked at an angle in the corner of the lot, not in a marked space. When Cunningham entered the parking lot he observed the defendant, from a distance of approximately ten feet, walking away from the vehicle. There were no other cars or persons in the parking lot. The defendant showed obvious signs of intoxication.² Those observations furnished probable cause to arrest the defendant, either for driving to endanger, see Commonwealth v. Stathopoulos, 23 Mass.App.Ct. 286, 287, 291–292 (1986)

, S.C., 401 Mass. 453 (1988), or for operation of a motor vehicle while under the influence of alcohol.³ The patfrisk of the defendant, which yielded a set of keys to the vehicle, accordingly was justified as a search incident to an arrest supported by probable cause. See Commonwealth v. Clermy, 421 Mass. 325, 330 (1995).⁴

There is no merit to the defendant's contention that Officer Cunningham lacked probable cause to believe the defendant had operated the motor vehicle. The time period between when the officer saw the vehicle turn into the parking lot and when he observed the defendant ten feet away from it, with no other persons in the area, was brief.⁵ The circumstances plainly were adequate to support a belief that the defendant had operated the vehicle as it entered the parking lot and came to a stop. See Commonwealth v. Jewett, 471 Mass. 624, 629 (2015)

.

3. Sufficiency of the evidence. To the evidence described supra supporting probable cause, the car keys recovered from the defendant by means of the patfrisk added further support for an inference by a reasonable factfinder that the defendant had operated the vehicle.⁶ See Commonwealth v. Congdon, 68 Mass.App.Ct. 782, 783 (2007)

. The circumstantial evidence also lent corroborative support for the defendant's admission that he had operated the vehicle. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003). The arrival on scene of the vehicle's owner, one-half hour later, does not derogate from the sufficiency of the evidence that the defendant had operated the vehicle. See Commonwealth v. Semedo, 456 Mass. 1, 8 (2010).

3. Registry of Motor Vehicles records. The certificate of mailing and the postal service confirmation of mailing were business records made and maintained in the ordinary course of business and were properly admitted as business records. See Commonwealth v. Royal, 89 Mass.App.Ct. 168, 173–175 (2016)

. The documents setting forth the defendant's driving history and license information similarly were certified copies of records made and maintained in the ordinary course of business. See Commonwealth v.. Bigley, 85 Mass.App.Ct. 507, 515–516 (2014) ; Commonwealth v. Nutter, 87 Mass.App.Ct. 260, 267 (2015). It does not matter for confrontation clause purposes that the certificate authenticating the business records was prepared in anticipation of trial. See Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904 (2010). See also Melendez–Diaz v. Massachusetts, 557 U.S. 305, 321–324 (2009).

Judgments affirmed.

1 The panelists are listed in order of seniority.

2 In addition to his unsteady gait, the defendant's eyes were bloodshot and he smelled of alcohol.

3 The fact that Cunningham asserted that he had not formally placed the...