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
23-P-853
COMMONWEALTH
vs.
KEVIN F. MCANDREW.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury found the
defendant, Kevin McAndrew, guilty of operating a motor vehicle
while under the influence of intoxicating liquor (OUI) in
violation of G. L. c. 90, § 24 (1) (a) (1). Thereafter, in a
jury-waived trial, a judge found the defendant guilty of a third
offense OUI. He appeals the underlying conviction by
challenging the sufficiency of the evidence and claiming, for
the first time, that certain testimony should not have been
admitted. We affirm.
Background. Prior to trial, defense counsel noted his
objection to hearsay contained in a police report. The judge
concluded, "The police officer could indicate that that person pointed out a car. The police officer will not be allowed to
testify as to what the particular witness said to him about that
witness's observations of the person."
Evidence at trial showed that on March 24, 2019, at
approximately 5:15 P.M., a woman in a convenience store parking
lot pointed out the defendant's vehicle to Pembroke police
Sergeant Paul Joudrey. Joudrey followed the vehicle through
residential streets as it traveled well above the thirty mile
per hour speed limit. Joudrey stopped the vehicle, walked up to
the driver's side, obtained the defendant's license and
registration, and spoke to the defendant, who asked why he had
been stopped. Joudrey replied to the defendant that he stopped
him because of his speed and because "his vehicle had been
pointed out." He smelled an odor of an alcoholic beverage on
the defendant's breath and observed the defendant's glassy and
bloodshot eyes and his slow and slurred speech.
The defendant then failed a series of field sobriety tests.
While still seated in the vehicle, the defendant missed a letter
when reciting the alphabet and did not follow instructions
regarding a "finger-touch technique" that involves touching the
thumb to each finger while counting. Joudrey asked him to get
out of the vehicle and watched as he walked slowly and appeared
unsteady on his feet. At Joudrey's request, the defendant
repeated both field sobriety tests. The defendant said the
2 alphabet "completely out of order" and failed to touch his thumb
to his fingers in sequence.
Discussion. 1. Sufficiency of evidence. When reviewing
the sufficiency of evidence, we consider "whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.
Virginia, 443 U.S. 307, 318-319 (1979). To prove the charged
crime, the Commonwealth had to prove beyond a reasonable doubt
that the defendant "(1) . . . operated a [motor] vehicle, (2) on
a public way . . ., and (3) . . . was impaired by the influence
of intoxicating liquor." Commonwealth v. Faherty, 93 Mass. App.
Ct. 129, 133-134 (2018), quoting Commonwealth v. AdonSoto, 475
Mass. 497, 509 (2016).
Here, the defendant challenges only the sufficiency of the
evidence pertaining to the third element. "[T]he phrase 'under
the influence' refers to 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 (2016). "Thus, 'in a prosecution for [OUI], the
Commonwealth must prove beyond a reasonable doubt that the
defendant's consumption of alcohol diminished the defendant's
ability to operate a motor vehicle safely.'" Id., quoting
3 Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Impairment
may be proven by circumstantial evidence. See Commonwealth v.
Flanagan, 76 Mass. App. Ct. 456, 464 (2010); Commonwealth v.
Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
Joudrey's testimony provided ample evidence that the
defendant was under the influence of alcohol: he sped through a
residential neighborhood, had the odor of an alcoholic beverage
on his breath, presented with glassy and bloodshot eyes,
exhibited slurred and slow speech, walked slowly, appeared
unsteady on his feet, and twice failed two field sobriety tests.
See Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353-354
(2015) (sufficient evidence of impairment where driver speeding,
exhibited moderate odor of alcohol, and had bloodshot and glassy
eyes); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507
(2011) (noting obvious signs of impairment where defendant had,
among other indicators, "strong odor of alcohol, poor balance,
and glassy, bloodshot eyes"); Commonwealth v. Rollins, 59 Mass.
App. Ct. 911, 912 (2003), S.C. 441 Mass. 114 (2004) (inability
to perform field sobriety tests is evidence of impairment).
Jurors could also consider Joudrey's opinion "[t]hat he was
intoxicated by liquor." See Sudderth, 37 Mass. App. Ct. at 321
(officer's opinion on intoxication "may also be taken into
account" when evaluating sufficiency of evidence). Viewing the
evidence in a light most favorable to the Commonwealth,
4 Latimore, 378 Mass. at 677, jurors could readily conclude that
the defendant's consumption of alcohol diminished his "ability
to operate a motor vehicle safely." Connolly, 394 Mass. at 173.
2. Testimony about bystander. Prior to trial, the judge
excluded hearsay statements of a bystander who directed Joudrey
to the defendant's vehicle. The hearsay statements were not
admitted, but the defendant now claims, for the first time, that
Joudrey's mere reference to the bystander directing him to the
vehicle constituted inadmissible hearsay. We discern no error
and no "substantial risk of a miscarriage of justice."
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
While it is true that nonverbal conduct such as pointing
may sometimes constitute an assertion, the pointing here "was
not offered to prove the truth of any implied assertion."
Commonwealth v. Beaz, 69 Mass. App. Ct. 500, 502 (2007).
Instead, evidence of the bystander pointing to the defendant's
vehicle was properly admitted to show "the state of police
knowledge which impelled the approach to the defendant."
Commonwealth v. Miller, 361 Mass. 644, 659 (1972). On direct
examination, Joudrey made two innocuous references to the
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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
23-P-853
COMMONWEALTH
vs.
KEVIN F. MCANDREW.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury found the
defendant, Kevin McAndrew, guilty of operating a motor vehicle
while under the influence of intoxicating liquor (OUI) in
violation of G. L. c. 90, § 24 (1) (a) (1). Thereafter, in a
jury-waived trial, a judge found the defendant guilty of a third
offense OUI. He appeals the underlying conviction by
challenging the sufficiency of the evidence and claiming, for
the first time, that certain testimony should not have been
admitted. We affirm.
Background. Prior to trial, defense counsel noted his
objection to hearsay contained in a police report. The judge
concluded, "The police officer could indicate that that person pointed out a car. The police officer will not be allowed to
testify as to what the particular witness said to him about that
witness's observations of the person."
Evidence at trial showed that on March 24, 2019, at
approximately 5:15 P.M., a woman in a convenience store parking
lot pointed out the defendant's vehicle to Pembroke police
Sergeant Paul Joudrey. Joudrey followed the vehicle through
residential streets as it traveled well above the thirty mile
per hour speed limit. Joudrey stopped the vehicle, walked up to
the driver's side, obtained the defendant's license and
registration, and spoke to the defendant, who asked why he had
been stopped. Joudrey replied to the defendant that he stopped
him because of his speed and because "his vehicle had been
pointed out." He smelled an odor of an alcoholic beverage on
the defendant's breath and observed the defendant's glassy and
bloodshot eyes and his slow and slurred speech.
The defendant then failed a series of field sobriety tests.
While still seated in the vehicle, the defendant missed a letter
when reciting the alphabet and did not follow instructions
regarding a "finger-touch technique" that involves touching the
thumb to each finger while counting. Joudrey asked him to get
out of the vehicle and watched as he walked slowly and appeared
unsteady on his feet. At Joudrey's request, the defendant
repeated both field sobriety tests. The defendant said the
2 alphabet "completely out of order" and failed to touch his thumb
to his fingers in sequence.
Discussion. 1. Sufficiency of evidence. When reviewing
the sufficiency of evidence, we consider "whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.
Virginia, 443 U.S. 307, 318-319 (1979). To prove the charged
crime, the Commonwealth had to prove beyond a reasonable doubt
that the defendant "(1) . . . operated a [motor] vehicle, (2) on
a public way . . ., and (3) . . . was impaired by the influence
of intoxicating liquor." Commonwealth v. Faherty, 93 Mass. App.
Ct. 129, 133-134 (2018), quoting Commonwealth v. AdonSoto, 475
Mass. 497, 509 (2016).
Here, the defendant challenges only the sufficiency of the
evidence pertaining to the third element. "[T]he phrase 'under
the influence' refers to 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 (2016). "Thus, 'in a prosecution for [OUI], the
Commonwealth must prove beyond a reasonable doubt that the
defendant's consumption of alcohol diminished the defendant's
ability to operate a motor vehicle safely.'" Id., quoting
3 Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Impairment
may be proven by circumstantial evidence. See Commonwealth v.
Flanagan, 76 Mass. App. Ct. 456, 464 (2010); Commonwealth v.
Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
Joudrey's testimony provided ample evidence that the
defendant was under the influence of alcohol: he sped through a
residential neighborhood, had the odor of an alcoholic beverage
on his breath, presented with glassy and bloodshot eyes,
exhibited slurred and slow speech, walked slowly, appeared
unsteady on his feet, and twice failed two field sobriety tests.
See Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353-354
(2015) (sufficient evidence of impairment where driver speeding,
exhibited moderate odor of alcohol, and had bloodshot and glassy
eyes); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507
(2011) (noting obvious signs of impairment where defendant had,
among other indicators, "strong odor of alcohol, poor balance,
and glassy, bloodshot eyes"); Commonwealth v. Rollins, 59 Mass.
App. Ct. 911, 912 (2003), S.C. 441 Mass. 114 (2004) (inability
to perform field sobriety tests is evidence of impairment).
Jurors could also consider Joudrey's opinion "[t]hat he was
intoxicated by liquor." See Sudderth, 37 Mass. App. Ct. at 321
(officer's opinion on intoxication "may also be taken into
account" when evaluating sufficiency of evidence). Viewing the
evidence in a light most favorable to the Commonwealth,
4 Latimore, 378 Mass. at 677, jurors could readily conclude that
the defendant's consumption of alcohol diminished his "ability
to operate a motor vehicle safely." Connolly, 394 Mass. at 173.
2. Testimony about bystander. Prior to trial, the judge
excluded hearsay statements of a bystander who directed Joudrey
to the defendant's vehicle. The hearsay statements were not
admitted, but the defendant now claims, for the first time, that
Joudrey's mere reference to the bystander directing him to the
vehicle constituted inadmissible hearsay. We discern no error
and no "substantial risk of a miscarriage of justice."
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
While it is true that nonverbal conduct such as pointing
may sometimes constitute an assertion, the pointing here "was
not offered to prove the truth of any implied assertion."
Commonwealth v. Beaz, 69 Mass. App. Ct. 500, 502 (2007).
Instead, evidence of the bystander pointing to the defendant's
vehicle was properly admitted to show "the state of police
knowledge which impelled the approach to the defendant."
Commonwealth v. Miller, 361 Mass. 644, 659 (1972). On direct
examination, Joudrey made two innocuous references to the
bystander. He testified that the bystander "pointed out a
vehicle" to him, and he further testified that he responded to
the defendant's question about why he was stopped by saying,
"his vehicle had been pointed out" and he was speeding. This
5 testimony was entirely consistent with the judge's pretrial
order and did not constitute hearsay. "[A]n arresting or
investigating officer should not be put in the false position of
seeming just to have happened upon the scene; he should be
allowed some explanation of his presence and conduct."
Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting
McCormick, Evidence § 249, at 734 (3d ed. 1984). During cross-
examination, Joudrey's third reference to the bystander
"pointing the vehicle out" did not add any new information and
simply summarized the sequence of events that ultimately led him
to conclude the defendant was under the influence. At no time
did Joudrey reveal the content of the bystander's statements to
him.
Even if Joudrey's testimony could be read to imply, as the
defendant maintains, that the bystander may have made a
statement that the defendant "was drunk," we are satisfied that
the judge's jury instructions obviated any risk of a miscarriage
of justice. The judge specifically instructed jurors that they
must "decide what the facts are solely from the evidence
admitted in this case, and that would include the testimony of
the witness." The judge further instructed that jurors could
draw inferences "only from facts that have been proven to you."
Given these instructions and the absence of any evidence about
the content of the bystander's statement, jurors were not
6 permitted to speculate about what the bystander may have said.
We also note that the prosecutor's closing did not make any
reference, by implication or otherwise, to the content of the
bystander's statement.
3. Ineffective assistance of counsel. Finally, we reject
the defendant's claim that his lawyer provided ineffective
assistance of counsel. To prevail, the defendant must show that
trial counsel's conduct "fell 'measurably below that which might
be expected from an ordinary fallible lawyer,' and that the
performance inadequacy 'likely deprived the defendant of an
otherwise available, substantial ground of defence.'"
Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). For the
reasons we have previously discussed, the evidence was
sufficient to convict the defendant. Accordingly, trial
counsel's failure to move for a required finding of not guilty
did not amount to ineffective assistance of counsel. See
Commonwealth v. Costa, 407 Mass. 216, 224 n.9 (1990) (counsel
not ineffective for failing to file required finding motion
where motion would have been denied). Regarding the claim
related to the bystander, because we concluded that evidence of
the bystander pointing did not result in a substantial risk of a
miscarriage of justice, the defendant "cannot prevail" on an
7 ineffectiveness assistance claim "on the same issue[]." Cohen,
412 Mass. at 389.
Judgment affirmed.
By the Court (Blake, Walsh & Hodgens, JJ.1),
Clerk
Entered: November 21, 2024.
1 The panelists are listed in order of seniority.