NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-871
COMMONWEALTH
vs.
EDWARD H. CAVANAUGH, THIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of operating
a motor vehicle under the influence of intoxicating liquor
(OUI). The defendant argues on appeal that the trial judge
should have either excluded a video recording of the police
booking process (video) from evidence or continued the trial to
allow the defendant to further prepare his defense. The
defendant also argues that there was insufficient evidence to
support his conviction. We affirm.
Background. We summarize the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). One evening in June 2019,
Randolph auxiliary officer Sean O'Connor observed fireworks
coming from a gated storage facility. Accompanied by a second
auxiliary officer, O'Connor approached the gate and saw the defendant setting off fireworks. When O'Connor told the
defendant to put the fireworks away, the defendant responded,
"What is your problem?" O'Connor repeated his instruction and
began to walk away. When the fireworks continued, O'Connor
returned to the gate and yelled, "I thought I told you to put
the fireworks away." The defendant approached the gate and
said, "What are you going to do about it?" and "What is your
problem?" O'Connor smelled a "pretty strong" odor of alcohol
coming from the defendant and called for a sector car. The
defendant then walked toward a vehicle within the gated area,
entered it, and drove around the storage facility toward the
exit, stopping when he encountered the sector car that had just
arrived.
Randolph police Officer Steven Elman got out of the sector
car and spoke to the defendant. The defendant stated that he
was not shooting fireworks and initially accused the two
uniformed auxiliary officers of trying to sell him fireworks.
He then said, "No, that wasn't them." Elman observed that the
defendant's speech was "slurred" and his eyes were "red and
watery." When the defendant stepped out of the vehicle at
Elman's request, Elman noticed that he was "unsteady on his
feet," "couldn't stand without assistance," and smelled "of an
alcoholic beverage." Elman asked the defendant if he had
consumed any drinks that night, and the defendant answered that
2 he had two beers. The defendant agreed to take field sobriety
tests, but, after he disclosed that he had sciatica in his legs
and a hernia, Elman asked him only to recite the alphabet
without singing. It took the defendant three attempts to
successfully complete this test.
The defendant was arrested and transported to a police
station for booking. The booking officer observed that the
defendant had "glassy" eyes, emitted a "slight smell" of
alcohol, "was kind of swaying back and forth," "mumbled a lot,"
and spoke at a slow pace. The defendant at first told the
booking officer that he had "one nip" of "Fireball" but later
stated that he had two.
Discussion. 1. Booking video. During discovery in
December 2019, the Commonwealth provided the defendant with the
booking video. In June 2021, two days before trial, a judge
(not the trial judge) asked at a hearing whether the
Commonwealth would be offering the video. The Commonwealth
replied that "as of now" it was not intending to do so, but that
it was "possible" that the trial prosecutor, who had not yet
been assigned, would decide differently. The judge advised the
parties that, in such event, any redactions to the video should
be made before trial.
Later that day, the assigned trial prosecutor informed
defense counsel that he would in fact be offering the video and
3 would send proposed redactions. On the morning of trial, while
the parties reported that they had agreed on the redactions, the
defendant moved to exclude the video as more prejudicial than
probative or, in the alternative, for a continuance. The trial
judge denied the motion, stating that the video was produced
during discovery and so the defendant could not reasonably claim
"surprise."
We discern no abuse of discretion in the trial judge's
decision to admit the video. It is "within the sound discretion
of the trial judge" to determine whether the probative value of
an item of evidence is "substantially outweighed by its
prejudicial or cumulative nature." Commonwealth v. Bonds, 445
Mass. 821, 831 (2006). We will not disturb the judge's
determination absent "palpable error." Id.
The defendant argues that the video was unduly prejudicial
because it shows him in a "jailhouse setting." We are not
persuaded. The video, which is fairly benign, shows the
defendant in a police station, not a "jailhouse setting," and
the jury already knew that he was arrested. The defendant fails
to identify any other prejudicial aspect of the video.
Moreover, the video was probative because it included the
defendant's recorded admission to consuming "Fireball" and
enabled the jury to assess the defendant's appearance and
conduct. See Commonwealth v. Moore, 480 Mass. 799, 808 (2018)
4 (evidence is relevant if it "provide[s] a link in the chain of
proof bearing on an issue of consequence").
For similar reasons we reject the defendant's argument that
the judge should have excluded the video as cumulative of the
officers' testimony. The video was not cumulative because it
was the only evidence that allowed the jury to assess the
defendant's appearance and conduct for themselves. See
Commonwealth v. Magri, 462 Mass. 360, 369 (2012) (objects
linking defendant to crimes "not cumulative of the
Commonwealth's other evidence that the defendant participated in
those crimes, which consisted primarily of testimony"). And
even were the video cumulative, the judge was within his
discretion in admitting it, especially where it did not result
in any unfair prejudice to the defendant. See Commonwealth v.
Boyarsky, 452 Mass. 700, 711 (2008) (whether to exclude evidence
as cumulative is entrusted to trial judge's discretion).
We also see no abuse of discretion in the judge's denial of
the defendant's request for a continuance. See Commonwealth v.
Ray, 467 Mass. 115, 128 (2014). The defendant argues that a
continuance was warranted because it would have allowed him to
"enlist experts to scrutinize his physical infirmities to
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-871
COMMONWEALTH
vs.
EDWARD H. CAVANAUGH, THIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of operating
a motor vehicle under the influence of intoxicating liquor
(OUI). The defendant argues on appeal that the trial judge
should have either excluded a video recording of the police
booking process (video) from evidence or continued the trial to
allow the defendant to further prepare his defense. The
defendant also argues that there was insufficient evidence to
support his conviction. We affirm.
Background. We summarize the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). One evening in June 2019,
Randolph auxiliary officer Sean O'Connor observed fireworks
coming from a gated storage facility. Accompanied by a second
auxiliary officer, O'Connor approached the gate and saw the defendant setting off fireworks. When O'Connor told the
defendant to put the fireworks away, the defendant responded,
"What is your problem?" O'Connor repeated his instruction and
began to walk away. When the fireworks continued, O'Connor
returned to the gate and yelled, "I thought I told you to put
the fireworks away." The defendant approached the gate and
said, "What are you going to do about it?" and "What is your
problem?" O'Connor smelled a "pretty strong" odor of alcohol
coming from the defendant and called for a sector car. The
defendant then walked toward a vehicle within the gated area,
entered it, and drove around the storage facility toward the
exit, stopping when he encountered the sector car that had just
arrived.
Randolph police Officer Steven Elman got out of the sector
car and spoke to the defendant. The defendant stated that he
was not shooting fireworks and initially accused the two
uniformed auxiliary officers of trying to sell him fireworks.
He then said, "No, that wasn't them." Elman observed that the
defendant's speech was "slurred" and his eyes were "red and
watery." When the defendant stepped out of the vehicle at
Elman's request, Elman noticed that he was "unsteady on his
feet," "couldn't stand without assistance," and smelled "of an
alcoholic beverage." Elman asked the defendant if he had
consumed any drinks that night, and the defendant answered that
2 he had two beers. The defendant agreed to take field sobriety
tests, but, after he disclosed that he had sciatica in his legs
and a hernia, Elman asked him only to recite the alphabet
without singing. It took the defendant three attempts to
successfully complete this test.
The defendant was arrested and transported to a police
station for booking. The booking officer observed that the
defendant had "glassy" eyes, emitted a "slight smell" of
alcohol, "was kind of swaying back and forth," "mumbled a lot,"
and spoke at a slow pace. The defendant at first told the
booking officer that he had "one nip" of "Fireball" but later
stated that he had two.
Discussion. 1. Booking video. During discovery in
December 2019, the Commonwealth provided the defendant with the
booking video. In June 2021, two days before trial, a judge
(not the trial judge) asked at a hearing whether the
Commonwealth would be offering the video. The Commonwealth
replied that "as of now" it was not intending to do so, but that
it was "possible" that the trial prosecutor, who had not yet
been assigned, would decide differently. The judge advised the
parties that, in such event, any redactions to the video should
be made before trial.
Later that day, the assigned trial prosecutor informed
defense counsel that he would in fact be offering the video and
3 would send proposed redactions. On the morning of trial, while
the parties reported that they had agreed on the redactions, the
defendant moved to exclude the video as more prejudicial than
probative or, in the alternative, for a continuance. The trial
judge denied the motion, stating that the video was produced
during discovery and so the defendant could not reasonably claim
"surprise."
We discern no abuse of discretion in the trial judge's
decision to admit the video. It is "within the sound discretion
of the trial judge" to determine whether the probative value of
an item of evidence is "substantially outweighed by its
prejudicial or cumulative nature." Commonwealth v. Bonds, 445
Mass. 821, 831 (2006). We will not disturb the judge's
determination absent "palpable error." Id.
The defendant argues that the video was unduly prejudicial
because it shows him in a "jailhouse setting." We are not
persuaded. The video, which is fairly benign, shows the
defendant in a police station, not a "jailhouse setting," and
the jury already knew that he was arrested. The defendant fails
to identify any other prejudicial aspect of the video.
Moreover, the video was probative because it included the
defendant's recorded admission to consuming "Fireball" and
enabled the jury to assess the defendant's appearance and
conduct. See Commonwealth v. Moore, 480 Mass. 799, 808 (2018)
4 (evidence is relevant if it "provide[s] a link in the chain of
proof bearing on an issue of consequence").
For similar reasons we reject the defendant's argument that
the judge should have excluded the video as cumulative of the
officers' testimony. The video was not cumulative because it
was the only evidence that allowed the jury to assess the
defendant's appearance and conduct for themselves. See
Commonwealth v. Magri, 462 Mass. 360, 369 (2012) (objects
linking defendant to crimes "not cumulative of the
Commonwealth's other evidence that the defendant participated in
those crimes, which consisted primarily of testimony"). And
even were the video cumulative, the judge was within his
discretion in admitting it, especially where it did not result
in any unfair prejudice to the defendant. See Commonwealth v.
Boyarsky, 452 Mass. 700, 711 (2008) (whether to exclude evidence
as cumulative is entrusted to trial judge's discretion).
We also see no abuse of discretion in the judge's denial of
the defendant's request for a continuance. See Commonwealth v.
Ray, 467 Mass. 115, 128 (2014). The defendant argues that a
continuance was warranted because it would have allowed him to
"enlist experts to scrutinize his physical infirmities to
explain [the] officers' observations." But the defendant does
not dispute that the Commonwealth provided the video during
discovery, about one and one-half years before trial. In these
5 circumstances the judge was within his discretion to find that
the Commonwealth's use of the video was not, or should not have
been, "a surprise" to the defendant.
2. Sufficiency of the evidence. On a sufficiency
challenge, "we review the evidence in the light most favorable
to the Commonwealth to determine whether 'any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.'" Commonwealth v. Powell, 459 Mass. 572,
578-579 (2011), quoting Latimore, 378 Mass. at 677. To sustain
an OUI conviction, the Commonwealth must prove three elements
beyond a reasonable doubt: (1) operation of a motor vehicle,
(2) on a public way, (3) while under the influence of
intoxicating liquor. See G. L. c. 90, § 24 (1) (a) (1);
Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 728 (2016).
Only the third element is at issue. To meet that element, the
Commonwealth must prove that "the defendant's consumption of
alcohol diminished the defendant's ability to operate a motor
vehicle safely" but "need not prove that the defendant actually
drove in an unsafe or erratic manner." Commonwealth v.
Connolly, 394 Mass. 169, 173 (1985).
The evidence here was sufficient to establish that the
defendant's ability to operate a motor vehicle was impaired by
his consumption of alcohol. The officers testified that the
defendant smelled of alcohol, was belligerent, had red and
6 glassy eyes and slurred speech, and was swaying and unsteady on
his feet. The defendant also needed three attempts to complete
a field sobriety test and admitted to consuming alcohol that
night, while giving inconsistent answers about the type and
amount of alcohol he consumed. Based on this evidence, which
showed that "the defendant exhibited classic symptoms of alcohol
intoxication," rational jurors could have found that the
defendant's consumption of alcohol diminished his ability to
safely operate a motor vehicle. Commonwealth v. Gallagher, 91
Mass. App. Ct. 385, 392 (2017). See Commonwealth v. Sudderth,
37 Mass. App. Ct. 317, 321 (1994) (evidence sufficient to
establish diminished capacity to operate where "defendant was
belligerent, unsteady on his feet[,] and smelled of alcohol").
Judgment affirmed.
By the Court (Sullivan, Shin & Hodgens, JJ.1),
Clerk
Entered: March 3, 2023.
1 The panelists are listed in order of seniority.