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-205
COMMONWEALTH
vs.
RANDY J. DEMELLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, after a bench
trial, of operating a motor vehicle while under the influence of
intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1). He raises
two arguments on appeal. First, he contends that the complaint
should have been dismissed because the complaint application did
not establish probable cause to believe that he was under the
influence of alcohol. Second, the defendant argues that there
was insufficient evidence at trial to prove the same point
beyond a reasonable doubt. We affirm.
Motion to dismiss for lack of probable cause. "A motion to
dismiss for lack of probable cause 'is decided from the four
corners of the complaint application, without evidentiary
hearing.'" Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190
(2016), quoting Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013). We view the information in the complaint application in
the light most favorable to the Commonwealth to determine
whether it supports probable cause as to each essential element
of the offense. See Commonwealth v. Ricardi, 99 Mass. App. Ct.
496, 498 (2021).
Taken in the required light, the criminal complaint
established the following. At 2:30 A.M. on a Friday night in
July 2022, the defendant was slumped unconscious over the
driving wheel of his car. The car was in the northbound lane on
Route 79 and, although it was not moving, the engine was
running, and the transmission had not been placed in park. The
windows were down. When police approached the car, the
defendant was unresponsive and difficult to rouse. Eventually
an officer was able to wake him by shaking him and yelling at
him, at which point the defendant took his foot off the brake
pedal and the car began to move forward. In response to the
officer's repeated loud and urgent instructions to "Put the car
in park! Put the car in park!" the defendant said "Dude it is
in park" as the car continued to roll forward. The defendant's
speech was "very slurred," he blended his words together, and he
was "extremely unsteady on his feet." When he was asked to get
out of the car, the defendant had difficulty walking; he also
had bloodshot and glossy eyes. The defendant denied having any
medical problems, and reported that he took medication only for
2 his heart. The officer placed the defendant under arrest for
operating while under the influence of alcohol. 1
On appeal, the defendant argues that this constellation of
facts failed to establish probable cause to believe that he was
under the influence of alcohol when operating his car. We
disagree. The defendant was found passed out in his car in the
travel lane of a numbered route with the engine still running.
He demonstrated impaired comprehension of the officer's
questions, and failed to comply with the officer's urgent
instructions to put the transmission in park. He responded to
the officer in an unusually convivial way, and his speech was
slurred. The defendant was unsteady on his feet when he got out
of the car. He also had bloodshot and glossy eyes. See
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390-391 (2017)
(bloodshot and glassy eyes, slurred speech, among other things);
Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354 (2015)
(manner of driving, among other things); Commonwealth v.
1 The complaint application also established that the defendant declined to take field sobriety tests and that he refused to take a breathalyzer test at the station after his arrest. Although the defendant's refusals would be inadmissible at trial, see Commonwealth v. Blais, 428 Mass. 294, 299 & n.3 (1998); G. L. c. 90, § 24 (1) (e), probable cause may be established by information that would not be admissible at trial. See Commonwealth v. Stoico, 45 Mass. App. Ct. 559, 565 (1998). In any event, probable cause was established on the face of the complaint application even setting aside the refusal evidence.
3 Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (poor balance,
among other things). The defendant had no medical condition to
explain this set of facts, nor was he on any medication that
would have caused them. Although it is true that there is no
mention of an odor of alcohol in the car, the windows of the car
were down when police arrived. In any event, the clerk-
magistrate could rely on the officer's decision to arrest the
defendant for operating while under the influence of alcohol as
a reflection of the officer's lay conclusion as to the cause of
the defendant's condition. See Commonwealth v. Canty, 466 Mass.
535, 544 (2013).
Sufficiency of evidence at trial. In addition to the
information we have described above, the trial evidence, viewed
under the Latimore standard, Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), permitted the judge to find that the defendant
had difficulty walking to the back of his car when asked to do
so by police. The judge could also make a conclusion as to the
defendant's intoxication from alcohol based on his own viewing
of the videotapes that were introduced in evidence. Because
"[t]he 'effects of liquor upon the minds and actions of men are
well known to everybody,'" Commonwealth v. Wall, 469 Mass. 652,
671 (2014), quoting Commonwealth v. Taylor, 263 Mass. 356, 362
(1928), we allow the trier of fact to use his or her common
sense and experience to determine whether a person is
4 intoxicated by alcohol. See Commonwealth v. Sands, 424 Mass.
184, 188 (1997) ("[a] lay juror understands that intoxication
leads to diminished balance, coordination, and mental acuity
from experience and knowledge"); Instruction 5.310 of the
Criminal Model Jury Instructions for Use in the District Court
(2023) ("You may rely on your experience and common sense about
the effects of alcohol"). 2 The judge found that the videotapes
showed not only the defendant's unsteadiness, but also his
inability "to follow the simple instructions of the officer to
put [his] hands behind [his] back." 3
In addition, the officer testified that he formed an
opinion as to the defendant's "sobriety," namely, that the
defendant was "intoxicated." "[A]n opinion regarding a
defendant's sobriety is a lay opinion, not an expert opinion,"
and is admissible because "it lies within the realm of common
experience." Canty, 466 Mass. at 541. For this reason, an
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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-205
COMMONWEALTH
vs.
RANDY J. DEMELLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, after a bench
trial, of operating a motor vehicle while under the influence of
intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1). He raises
two arguments on appeal. First, he contends that the complaint
should have been dismissed because the complaint application did
not establish probable cause to believe that he was under the
influence of alcohol. Second, the defendant argues that there
was insufficient evidence at trial to prove the same point
beyond a reasonable doubt. We affirm.
Motion to dismiss for lack of probable cause. "A motion to
dismiss for lack of probable cause 'is decided from the four
corners of the complaint application, without evidentiary
hearing.'" Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190
(2016), quoting Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013). We view the information in the complaint application in
the light most favorable to the Commonwealth to determine
whether it supports probable cause as to each essential element
of the offense. See Commonwealth v. Ricardi, 99 Mass. App. Ct.
496, 498 (2021).
Taken in the required light, the criminal complaint
established the following. At 2:30 A.M. on a Friday night in
July 2022, the defendant was slumped unconscious over the
driving wheel of his car. The car was in the northbound lane on
Route 79 and, although it was not moving, the engine was
running, and the transmission had not been placed in park. The
windows were down. When police approached the car, the
defendant was unresponsive and difficult to rouse. Eventually
an officer was able to wake him by shaking him and yelling at
him, at which point the defendant took his foot off the brake
pedal and the car began to move forward. In response to the
officer's repeated loud and urgent instructions to "Put the car
in park! Put the car in park!" the defendant said "Dude it is
in park" as the car continued to roll forward. The defendant's
speech was "very slurred," he blended his words together, and he
was "extremely unsteady on his feet." When he was asked to get
out of the car, the defendant had difficulty walking; he also
had bloodshot and glossy eyes. The defendant denied having any
medical problems, and reported that he took medication only for
2 his heart. The officer placed the defendant under arrest for
operating while under the influence of alcohol. 1
On appeal, the defendant argues that this constellation of
facts failed to establish probable cause to believe that he was
under the influence of alcohol when operating his car. We
disagree. The defendant was found passed out in his car in the
travel lane of a numbered route with the engine still running.
He demonstrated impaired comprehension of the officer's
questions, and failed to comply with the officer's urgent
instructions to put the transmission in park. He responded to
the officer in an unusually convivial way, and his speech was
slurred. The defendant was unsteady on his feet when he got out
of the car. He also had bloodshot and glossy eyes. See
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390-391 (2017)
(bloodshot and glassy eyes, slurred speech, among other things);
Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354 (2015)
(manner of driving, among other things); Commonwealth v.
1 The complaint application also established that the defendant declined to take field sobriety tests and that he refused to take a breathalyzer test at the station after his arrest. Although the defendant's refusals would be inadmissible at trial, see Commonwealth v. Blais, 428 Mass. 294, 299 & n.3 (1998); G. L. c. 90, § 24 (1) (e), probable cause may be established by information that would not be admissible at trial. See Commonwealth v. Stoico, 45 Mass. App. Ct. 559, 565 (1998). In any event, probable cause was established on the face of the complaint application even setting aside the refusal evidence.
3 Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (poor balance,
among other things). The defendant had no medical condition to
explain this set of facts, nor was he on any medication that
would have caused them. Although it is true that there is no
mention of an odor of alcohol in the car, the windows of the car
were down when police arrived. In any event, the clerk-
magistrate could rely on the officer's decision to arrest the
defendant for operating while under the influence of alcohol as
a reflection of the officer's lay conclusion as to the cause of
the defendant's condition. See Commonwealth v. Canty, 466 Mass.
535, 544 (2013).
Sufficiency of evidence at trial. In addition to the
information we have described above, the trial evidence, viewed
under the Latimore standard, Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), permitted the judge to find that the defendant
had difficulty walking to the back of his car when asked to do
so by police. The judge could also make a conclusion as to the
defendant's intoxication from alcohol based on his own viewing
of the videotapes that were introduced in evidence. Because
"[t]he 'effects of liquor upon the minds and actions of men are
well known to everybody,'" Commonwealth v. Wall, 469 Mass. 652,
671 (2014), quoting Commonwealth v. Taylor, 263 Mass. 356, 362
(1928), we allow the trier of fact to use his or her common
sense and experience to determine whether a person is
4 intoxicated by alcohol. See Commonwealth v. Sands, 424 Mass.
184, 188 (1997) ("[a] lay juror understands that intoxication
leads to diminished balance, coordination, and mental acuity
from experience and knowledge"); Instruction 5.310 of the
Criminal Model Jury Instructions for Use in the District Court
(2023) ("You may rely on your experience and common sense about
the effects of alcohol"). 2 The judge found that the videotapes
showed not only the defendant's unsteadiness, but also his
inability "to follow the simple instructions of the officer to
put [his] hands behind [his] back." 3
In addition, the officer testified that he formed an
opinion as to the defendant's "sobriety," namely, that the
defendant was "intoxicated." "[A]n opinion regarding a
defendant's sobriety is a lay opinion, not an expert opinion,"
and is admissible because "it lies within the realm of common
experience." Canty, 466 Mass. at 541. For this reason, an
officer may testify, as a lay witness, regarding his opinion as
to a person's intoxication based on the officer's observations
of the person's "appearance, manner, and conduct (e.g.,
2 The judge is presumed to have instructed himself correctly on the law. See Commonwealth v. Armstrong, 54 Mass. App. Ct. 594, 598 (2002). 3 We have obtained the roadside videotape on our own initiative
from the trial court, and our independent review of it leads us to conclude that the judge's findings regarding what it showed were not clearly erroneous.
5 bloodshot eyes, slurred speech, and unsteady gait)," because the
principal, objective symptoms of intoxication are so well known.
Id. Both "sobriety" and "intoxication" are commonly understood
to refer to alcohol usage, and the judge as the trier of fact
could accept them as such, especially when combined with the
judge's observations of the defendant in the videotapes and the
other circumstances that indicated the defendant was under the
influence of alcohol. In short, the evidence was sufficient to
allow the judge to conclude beyond a reasonable doubt that the
defendant was operating while under the influence of alcohol.
Judgment affirmed.
By the Court (Vuono, Wolohojian & Toone, JJ. 4),
Assistant Clerk
Entered: March 6, 2024.
4 The panelists are listed in order of seniority.