Commonwealth v. Figaro

• Decision Date: 08 January 2020
• Docket Number: 19-P-340
• Parties: COMMONWEALTH v. WILBENSON FIGARO.
• Court: Appeals Court of Massachusetts

COMMONWEALTH v. WILBENSON FIGARO.

19-P-340

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

January 8, 2020

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant of negligent operation of a motor vehicle and operation of a motor vehicle while under the influence of marijuana (OUI). The defendant challenges his OUI conviction on the ground that the Commonwealth failed to meet its burden of proving that his ability to drive was impaired and that marijuana is a scheduled drug as defined in G. L. c. 94C, § 1. See G. L. c. 90, § 24 (1) (a) (1) (criminalizing operation of motor vehicle on public way while under influence of "marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G. L. c. 94C, § 1]"). The defendant also argues that the judge erred by refusing to instruct the jury on the defense of necessity. We affirm.

Background. The jury could have found the following facts. Around 2:45 A.M. on September 20, 2016, two uniformed police officers, Kiel Huard and Eric Huard,¹ were parked in their respective cruisers when they saw headlights appear from behind an abandoned mill. When Officer Kiel asked the driver, later identified as the defendant, why he was there, the defendant stated that he had been smoking a "blunt."² Officer Kiel observed that the defendant "stuttered" and "tripp[ed] over his words" and that his eyes were "swollen," "puffy," and "partially closed" as if he could not fully open them. Officer Kiel asked the defendant to pull over in front of Officer Eric's cruiser, but the defendant drove off instead.

Both officers followed the defendant with their cruiser emergency lights and sirens activated, and Officer Eric used his loudspeaker to instruct the defendant to pull over. The defendant continued driving. At one point the defendant almost struck another car when he "aggressively" pulled out of an intersection. Eventually, the defendant stopped his car "towards the middle of [a] road," and the officers parked their cruisers in front of and behind him.

Officer Kiel walked toward the defendant and told him several times to shut the car off, but the defendant did not comply. As Officer Kiel neared the front of the car, he saw the defendant's hands moving and became concerned that the defendant would try to run him over. In response, Officer Kiel used his nightstick to strike the driver's side window, cracking it. Officer Kiel continued to tell the defendant to shut the car off, but the defendant instead "cut the wheel" and "sped away to the right side," hitting one of the cruisers in the process. Officer Kiel again pursued the defendant with his emergency lights and sirens activated and observed that the defendant "was not driving clearly within his marked lane" and was not "completely obeying traffic signals and signage," including failing to fully stop at stop signs. The pursuit ended when the defendant parked at a residence.

Discussion. 1. Evidence of impairment. We review the defendant's sufficiency challenge to determine "whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime[] beyond a reasonable doubt." Commonwealth v. Ayala, 481 Mass. 46, 51 (2018). To sustain a conviction of OUI, the Commonwealth had to prove that the defendant's consumption of marijuana "diminish[ed] his . . . 'ability to operate a motor vehicle safely.'" Commonwealth v.Davis, 481 Mass. 210, 216 (2019), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). A defendant's appearance and demeanor, as well as erratic driving, may indicate impairment of his ability to drive. See Davis, supra.

The Commonwealth met its burden in this case. The defendant admitted to smoking a "blunt." He stuttered; spoke slowly; had swollen, partially closed eyes; and repeatedly ignored the officers' orders to pull over despite their using sirens and emergency lights. In addition, though proof of actual unsafe or erratic driving was not required, see Commonwealth v. Jewett, 471 Mass. 624, 635-636 (2015), the Commonwealth established that the defendant did in fact drive erratically -- he "aggressively" pulled out of an intersection and nearly hit another car, drifted between lanes, failed to obey traffic signs, stopped in the middle of the road, and hit a police cruiser. Based on this evidence, a reasonable jury could have found that the defendant's marijuana consumption diminished his ability to safely operate his car.

2. Evidence that marijuana is a scheduled drug. The defendant also challenges his OUI conviction on the basis that the Commonwealth failed to prove that marijuana is a scheduled drug under G. L. c. 94C, § 1, the definitional section referenced in the OUI statute. This argument fails because the OUI statute expressly criminalizes the operation of a motorvehicle "while under the influence of . . . marijuana," G. L. c. 90, § 24 (1) (a) (1), and the Commonwealth produced evidence that the defendant admitted to smoking marijuana. The Commonwealth had no additional burden of proving that marijuana falls within one of the more general categories of substances defined in G. L. c. 94C, § 1. Cf. Commonwealth v. Green, 408 Mass. 48, 50 (1990) (Commonwealth had to prove that codeine, which is not specified in either OUI statute or G. L. c. 94C, § 1, qualifies as "narcotic drug" under G. L. c. 94C, § 1); Commonwealth v. Ferola, 72 Mass. App. Ct. 170, 173 (2008) (proof that defendant was operating while under influence of "depressants" insufficient to sustain OUI conviction absent proof that depressant in question was one defined in G. L. c. 94C, § 1).

3. Necessity defense. The defendant claims that the judge erred by refusing to instruct the jury on necessity, a defense that "exonerates one who commits a crime under the 'pressure of circumstances' if the harm that would have resulted...