Commonwealth v. Maureen McCarthy.

• Court: Massachusetts Appeals Court
• Decided: January 24, 2024
• Docket: 23-P-0038
• Status: Unpublished

Opinion

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-38

COMMONWEALTH

vs.

MAUREEN MCCARTHY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of operating under the

influence of intoxicating liquor. 1 On appeal the defendant

argues that the evidence was insufficient to support her

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). The defendant's tenant was at

his apartment on School Street in Manchester-by-the-Sea when the

defendant showed up and tried to enter, causing the tenant to

call the police. About ten minutes later, the tenant saw the

defendant driving her car "erratic[ally]" as she tried to back

out of the driveway next to his apartment building. The

1 The trial judge later found the defendant not responsible for the civil infraction of driving without possession of a license. driveway was accessible only from School Street. When the

tenant went downstairs to record what was happening, the

defendant put the car in park, got out, and started walking

toward him quickly. The tenant retreated into the building.

Officer Zakary Johnson responded to the scene at about 8:41

P.M. and observed the defendant banging on the front door of the

building and "making a lot of verbal noise," which he described

as "[l]oud, incoherent babbling." As he spoke to the defendant,

Officer Johnson noticed that she was slurring her speech,

smelled of alcohol, and was "argumentative and agitated." When

asked for her license, the defendant got into her car, which was

still parked in the driveway, and then said, "I have no idea

where it is." There was no one else in or near the car, and the

defendant told Officer Johnson that she "drove there" about ten

minutes prior to his arrival.

Officer Ronald Ramos responded soon thereafter and

similarly observed that the defendant had slurred speech,

smelled of alcohol, and was unsteady on her feet, and that her

demeanor was "combative." Based on his observations, Ramos

asked the defendant to submit to field sobriety tests. Upon

administering the horizontal gaze nystagmus test, 2 Officer Ramos

2 As described by Officer Ramos, this is "a test where you look at the person's eyes and you use an instrument, usually a pen, and you're looking for nystagmus in the eyes, and you look for smooth pursuit or the lack thereof, and maximum deviation."

2 noticed that "there was a lack of smooth pursuit of [the

defendant's] eyes," which he described as bloodshot and glassy.

The defendant did not perform any other field sobriety tests,

stating that she could not do so because of an injury. At some

point the defendant stated that she would take a preliminary

breath test but only if the officers promised to let her leave

if she was under the legal limit.

Forming the opinion that the defendant was under the

influence of alcohol, Officer Johnson placed her under arrest

and transported her to the police station. During the booking

process, the defendant was argumentative, continued to slur her

words, and still smelled strongly of alcohol. At about 10:26

P.M., the defendant took a breath test, which showed a blood

alcohol content of .10 percent.

Discussion. To sustain a conviction of operating under the

influence of intoxicating liquor, the Commonwealth must prove

three elements: "(1) operation of a vehicle, (2) on a public

way, (3) under the influence of alcohol." Commonwealth v.

O'Connor, 420 Mass. 630, 631 (1995). The defendant argues that

the evidence was insufficient to establish the first two

elements because the driveway was a private, not public, way and

no witness observed her driving on School Street. We disagree.

The defendant's admission to Officer Johnson that she

"drove there," corroborated by other evidence, was adequate to

3 show that she operated a vehicle on a public way. 3 Although a

defendant may not be convicted based solely on an uncorroborated

confession, see Commonwealth v. Forde, 392 Mass. 453, 457-458

(1984), the corroboration required in this context is "quite

minimal," Commonwealth v. Lagotic, 102 Mass. App. Ct. 405, 409

(2023), quoting Commonwealth v. Green, 92 Mass. App. Ct. 325,

327 (2017). In particular, "[t]he corroboration rule requires

only that there be some evidence, besides the confession, that

the criminal act was committed by someone, that is, that the

crime was real and not imaginary." Forde, supra at 458.

The evidence here was adequate to show that the crime was

not imaginary. The tenant saw the defendant driving the car in

the driveway, and there was no evidence that anyone had been in

the car with her. The defendant's request that the officers let

her leave, as well as the tenant's observation of her trying to

back out of the driveway, suggested that the defendant did not

live at that location, raising the inference that she drove

there. Furthermore, the defendant's statement that she had

arrived ten minutes prior to Officer Johnson's arrival coincided

with the timeframe provided by the tenant. All of this evidence

3 To the extent the defendant challenges the denial of her motion to suppress her admission, she has waived that claim by not providing us with a copy of the hearing transcript and by not supporting the claim with adequate appellate argument. See Commonwealth v. Woody, 429 Mass. 95, 97 (1999); Commonwealth v. Salcedo, 405 Mass. 346, 351 (1989).

4 corroborated the defendant's admission to Officer Johnson that

she had driven to the location ten minutes earlier. See

Lagotic, 102 Mass. App. Ct. at 409 (defendant's admissions to

driving vehicle corroborated by evidence that he was on roadside

near accident site and by lack of evidence to suggest anyone

else had been driving). The corroborated admission in turn,

coupled with the fact that the driveway was accessible only from

School Street, was sufficient to show that the defendant

operated her vehicle on a public way. 4

To the extent the defendant claims that there was

insufficient evidence to establish that she was impaired, she

has not supported the claim with adequate appellate argument.

See Commonwealth v. Salcedo, 405 Mass. 346, 351 (1989). In any

event, the Commonwealth presented sufficient proof of impairment

-- in particular, the defendant's erratic driving in the

driveway; her combativeness, slurred speech, unsteadiness on her

feet, and bloodshot and glassy eyes; the smell of alcohol coming

from her breath; Officer Johnson's opinion that she was under

the influence of alcohol; and the results of the breath test

taken at the police station. See Commonwealth v. Gallagher, 91

Mass. App. Ct. 385, 390-391 (2017). Any remaining claims, to

the extent we have not addressed them, likewise do not rise to

4 The defendant does not argue that the evidence was insufficient to show that School Street is a public way.

5 the level of adequate appellate argument and do not warrant

overturning the defendant's conviction.

Judgment affirmed.

By the Court (Desmond, Shin & Singh, JJ. 5),

Assistant Clerk

Entered: January 24, 2024.

5 The panelists are listed in order of seniority.