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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth v. Stawarz, 32 Mass.App.Ct.
211 (1992)
Appeals Court of Massachusetts, Worcester.
No. 91‑P‑513.
Argued
Decided
Further
Appellate Review
Denied
Katherine E. McMahon, Asst. Dist. Atty., for Com.
M. Page Kelley, Committee for Public Counsel
Services,
Thomas C. Carrigan,
Worcester, for John E. Stawarz.
Before PERRETTA, FINE and
JACOBS, JJ.
ABRAMS, Justice.
After
trial by a jury of six, the defendant, Kenneth P. Stathopoulos, was convicted
of operating a motor vehicle while under the influence of intoxicating liquor, G.L. c. 90, § 24(1)(a
)(1), and operating a motor vehicle negligently so that the lives and safety of
the public might be endangered, [401
Mass. 454] G.L.
c. 90, § 24(2)(a ). The defendant appealed to the
The
"At
some point the defendant was given a breathalyzer test, which showed a blood
alcohol content by weight of .07 percent.
G.L. c. 90, § 24(1)(e ). The officer who had
performed the test expressed the opinions (on cross examination) that the .07
reading was inconsistent with the irrational behavior which the defendant had
exhibited in the police station and that the defendant had been under the
influence of a combination of alcohol and 'something else.' [ (FN1)]
Such of the pills as had not been
[401 Mass. 455] consumed in the
course of the chemical analysis, together with a certificate of the results of
the analysis, were admitted in evidence, supposedly for the limited purpose of
explaining the defendant's conduct in the police station."
Commonwealth v. Stathopoulos, supra at 287‑288,
501 N.E.2d 1174.
1. Instructions on driving while under the
influence of intoxicating liquor. The defendant does not contest the sufficiency
of the evidence to support the conviction.
He argues only that two of the instructions were erroneous. We turn to the instructions.
In
assessing the charge, we are mindful that "the adequacy of instructions
must be determined in light of their over‑all impact on the jury."
Commonwealth v. Sellon, 380 Mass. 220, 231‑232,
402 N.E.2d 1329 (1980). "It is the
impression created by the charge as a whole that constitutes the test."
Commonwealth v. Pinnick, 354 Mass. 13, 15,
234 N.E.2d 756 (1968). See
Commonwealth v. Dyer, 389 Mass. 677, 683, 451 N.E.2d 1161
(1983). There is no dispute that the
judge specifically and repeatedly instructed the jurors that to find the
defendant guilty of operating under the influence of intoxicating liquor they
had to find a causal relationship between the defendant's consumption of
alcohol and the defendant's diminished capacity to operate a motor vehicle.2 See Commonwealth v. Connolly, 394 Mass. 169,
173, 474 N.E.2d 1106 (1985). Such
instructions clearly were correct. Id.
[401 Mass. 456] [1] The defendant objects to two instructions which mention the
ingestion of drugs. The judge told the
jurors that, "[i]f you find that the alcohol
which the defendant may have ingested alone did not render him under the
influence of intoxicating liquor, but the mixture, but the mixture of that
alcohol with a drug, a controlled substance, did diminish his capacity to
operate safely, you are warranted in finding him guilty of operating under the
influence of intoxicating beverages."
Later, in the course of explaining the significance of the .07 reading
on the breathalyzer, the judge said:
"This reading which ... was introduced ... shows a .07.... [T]hat's not evidence of the fact that he was
under the influence. It is evidence that
he ingested alcohol. Whether that
alcohol was mixed with something else, so as to then render him under the
influence, that is for you to determine, and for you only." The defendant asserts that these two
instructions require reversal of his conviction for operating under the
influence of intoxicating liquor, because our statute does not provide for
conviction for operating under the influence of a mixture of drugs and alcohol. (FN3)
We disagree with the claim that the defendant's conviction must be
reversed. We conclude that reasonable
jurors could not have understood the judge's charge as a whole to negate the
need to find a causal relationship between the defendant's consumption of
alcohol and his diminished ability to drive safely. See Commonwealth v. Moreira,
385 Mass. 792, 796, 434 N.E.2d 196 (1982).
Thus, there is no error. (FN4)
[401 Mass. 457] A defendant may be found
guilty of driving while under the influence of intoxicating liquor if the
defendant's ability to operate a vehicle safely is diminished, and alcohol is
one contributing cause of the diminished ability. See Commonwealth v. Connolly, supra, 394
Mass. at 173, 474 N.E.2d 1106. It is
not necessary that alcohol be the sole or exclusive cause. It is enough if the defendant's capacity to
operate a motor vehicle is diminished because of alcohol, even though other,
concurrent causes contribute to that diminished capacity. Case law in other jurisdictions supports this
conclusion. See, e.g.,
State v. Thomas, 79 Idaho 372, 376, 318 P.2d 592 (1957);
State v. West, 416 A.2d 5, 9 (Me.1980); State v. Blier,
330 A.2d 122 (Me.1974); (FN5) Commonwealth v. Rex, 168 Pa.Super. 628, 631‑632, 82 A.2d 315 (1951);
Heard v. State, 665 S.W.2d 488 (Tex.Crim.App.1984) (en banc);
Harrell v. Norfolk, 180 Va. 27, 34‑35, 21 S.E.2d 733
(1942). See also State v. Daniels, 379
N.W.2d 97 (Minn.App.1986); State v. Glynn, 20 N.J.Super.
20, 89 A.2d 50 (1952). "When the
defendant is charged with operating while under the influence of intoxicating
liquor, it is immaterial whether the driver is under the influence of
intoxicating liquor and other substances....
[I]n order to find guilt, the jury need only to find that the liquor
contributed to the defendant's impairment." (Citations omitted.) State v. West, 416 A.2d 5,
9 (Me.1980).
We reject
the Appeals Court's conclusion that "the only instruction which may
properly be given a jury in a case such as the present is one to the effect
that, although they may find that the defendant had ingested a narcotic or
other proscribed substance which may have rendered him more susceptible to the
intoxicating effect of liquor, they
cannot convict unless [401 Mass.
458] they also find beyond a
reasonable doubt that the liquor was the efficient cause of the intoxication
and that such intoxication resulted in diminishing the defendant's ability or
capacity to operate a motor vehicle safely " (emphasis added).
Commonwealth v. Stathopoulos, supra, 23 Mass.App.Ct.
at 290, 501 N.E.2d 1174. Our statute
imposes no such requirement. What is
required is that the Commonwealth prove that liquor diminished the defendant's
capacity to operate a motor vehicle safely.
(FN6)
We also
think that the concept of "efficient cause" is not helpful in cases
where a defendant is charged with operating under the influence of intoxicating
liquor. "Efficient cause" has
been defined by this court as the "cause that necessarily sets in
operation the factors which caused" the prohibited result,
Commonwealth v. Rhoades, 379 Mass. 810, 825, 401 N.E.2d 342
(1980). In criminal cases, there may be
more than one efficient or proximate cause of the prohibited result.
Commonwealth v. Fernette, 398 Mass. 658,
668, 500 N.E.2d 1290 (1986). Commonwealth v. McLeod, 394 Mass. 727,
745 n. 21, 477 N.E.2d 972, cert. denied sub nom. Aiello v. Massachusetts,
474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985).
Commonwealth v. Rhoades, supra at 379 Mass. at 823 n. 12, 401 N.E.2d
342.
Commonwealth v. Hackett, 2 Allen 136, 142 (1861).
[2]
Further, the Appeals Court's opinion may be read to require the Commonwealth to prove "intoxication" in a
prosecution for driving under the influence of intoxicating liquor. We reject any such requirement. In
Connolly, we held that "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" (emphasis deleted).
Commonwealth v. Connolly, supra, 394 Mass. at 173, 474 N.E.2d
1106. The Commonwealth is not required
to prove that the defendant was drunk. Id. at 172, 474 N.E.2d 1106.
Commonwealth v. Bernier, 366 Mass. 717, 720, 322 N.E.2d 414 (1975).
Commonwealth v. Lyseth, 250 Mass. 555,
558, 146 N.E. 18 (1925). An instruction
referring to "intoxication" as the cause of a diminished ability to
drive may confuse jurors on the issue whether they must find the defendant was
"drunk." Such an instruction
therefore should not be given.
[401 Mass. 459] 2. Driving negligently so
that the lives and safety of the public might be endangered. The defendant argues that the judge's
instructions on the complaint for negligent driving created a substantial risk
of a miscarriage of justice. (FN7)
Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d 3
(1967). The defendant did not seek
further appellate review on the issue of these instructions. The issue is before us, however, because our
order granting the Commonwealth's application for further appellate review
contained no limitation, and both parties argued the issue in their briefs. Ballantine v. Falmouth, 363 Mass. 760, 762 n. 2, 298
N.E.2d 695 (1973). After reviewing the
record, we agree with the Appeals Court's conclusion that the judge's
instructions were not erroneous and did not create a risk of a miscarriage of
justice. See 23 Mass.App.Ct.
at 291, 292, 501 N.E.2d 1174. We also
agree with the Appeals Court that the judge adequately instructed the jury on
the Commonwealth's burden of proof. See id.
at 292, 501 N.E.2d 1174.
Judgments affirmed.
(FN1.) The defendant also was charged with
operating a motor vehicle while under the influence of narcotic drugs, but was
acquitted of this charge at the bench trial in the District Court. The record reveals that at the time of that
proceeding, the State chemist's drug analysis certificate was not available.
FN2.
At the outset of the trial, the judge told the jurors that "[a] person is
under the influence of intoxicating liquor if at the time of his consumption
and as a result of his consumption of alcoholic beverages, his ability to
operate a motor vehicle safely has been reduced, diminished."
In the body
of the charge, the judge said: "A
person is under the influence if at the time of his or her consumption of
intoxicating liquor it has diminished his ability to operate a motor vehicle
safely.... It [operating under the
influence] also includes any condition which results from indulging in any
degree in intoxicating liquor which has negatively affected the defendant's
cleanness of intellect and his self‑control and as a result of that has
diminished or reduced his capacity to operate safely.... [I]f your ingestion of
the alcohol in so small or so large an amount diminishes your capacity, reduces
your capacity to operate a motor vehicle safely, then you've violated our law,
by operating a motor vehicle, of course.
A person, ladies and gentlemen, is under the influence of intoxicating
liquor when he's affected by it to the extent that his judgment, his alertness,
his ability to respond promptly and effectively to unexpected emergencies, is
diminished because of the consumption of alcoholic beverages."
(FN3.) The statute provides in relevant
part: "Whoever ... operates a motor
vehicle while under the influence of intoxicating liquor, or of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter
ninety‑four C ... shall be punished ..." (emphasis supplied). G.L. c. 90, §
24(1)(a )(1) (1986 ed.).
(FN4.) We agree with the observation made in
the Appeals Court dissent that "[i]f, given the
evidence in the case, the judge had not said something to the effect that a
guilty verdict was warranted if a mixture of drugs and alcohol diminished the
defendant's capacity, he would have left the jurors in a state of
confusion." 23 Mass.App.Ct.
at 292‑293, 501 N.E.2d 1174 (Fine, J., dissenting).
We
note, however, that an appropriate instruction in these circumstances might be
similar to the following: You are
instructed that, if the defendant's ability to operate safely was diminished by
alcohol, the defendant has violated the statute even though some other cause,
also operating on the defendant while he or she was driving, tended to magnify
the effect of the liquor or concurred in causing the defendant's diminished
capacity to operate safely. It is no
defense, under the statute, to show the existence of such concurring cause, so
long as the influence of the liquor remained as one of the causes of the
defendant's diminished capacity. See 3
Erwin, Defense of Drunk Driving Cases § 40.05 (3d ed. 1985).
(FN5.) Subsequent to the two Maine cases cited
here, the Maine Legislature in 1981 enacted a combined influence statute. See Me.
Rev.Stat.Ann. tit. 29, § 1312‑B(1)(A).
(FN6.)
An appropriate instruction in these circumstances is suggested in note 4, supra.
(FN7.) The defendant did not object to these
instructions at trial. On appeal, the
defendant claims a risk of a miscarriage of justice was created because the
instructions allegedly (1) permitted the jury to find the defendant guilty if
his driving endangered only himself; and
(2) did not state expressly that the Commonwealth's burden of proof, which the
judge explained in general terms, applied to each element of the offense.