COMMONWEALTH v. HUGHES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Robert F. Hughes, appeals from his conviction, after a jury trial in Superior Court, of operating a motor vehicle under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1).² Concluding that the evidence of operation was sufficient, the judge properly handled the improper testimony, and the defendant failed to show that any juror was exposed to extraneous influences, we affirm.

1. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, “we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016). “Here, the Commonwealth was required to ‘prove that the defendant (1) physically operated a vehicle; (2) “on a public way or place to which the public has a right of access; and (3) had a blood alcohol content percentage of .08 or greater or 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). The defendant contests only the first element.

An eyewitness observed the defendant fall off of a scooter in the middle of the road, up the hill from the defendant's residence. The scooter belonged to the defendant.³ Even without direct evidence how the scooter got there or how long it had been there, a jury could reasonably infer that the defendant drove his scooter from his home to the middle of the hill, rather than pushing it or having someone else transport it to the middle of a road. See Commonwealth v. Colby, 23 Mass. App. Ct. 1008, 1011 (1987). Such inference, however, was unnecessary, because the defendant admitted to his neighbor that he had been drinking and driving. The jury could credit this testimony, which was adequately corroborated, and convict the defendant. See Commonwealth v. Franceschi, 94 Mass. App. Ct. 602, 606 (2018).

2. Struck testimony. The defendant's neighbor testified that she asked him whether he was “drink[ing] and driving again?” The judge immediately struck the word “again” and instructed the jury that this was “not to be considered by you in any way.” “Jurors are presumed to follow a judge's instructions, including instructions to disregard certain testimony.” Commonwealth v. Roby, 462 Mass. 398, 413 (2012), quoting Commonwealth v. Williams, 450 Mass. 645, 651 (2008). Accord Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 325 (2016). Where the struck evidence was not repeated, the judge's response was adequate. See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 343 (1994).

3. Extraneous influence. Where, as here, the defendant claims that a juror was exposed to extraneous influences, “[t]he first step ․ requires the defendant to prove by a preponderance of the evidence that extraneous material was introduced to the jury.” Commonwealth v. Miller, 475 Mass. 212, 221-222 (2016). Accord Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). Here, the juror stated that her coworker described her boyfriend as “Rob” and “never told [her] his last name” or said where he lived.⁴ She had never seen a photograph of “Rob.” Accordingly, she never connected this “Rob” with the defendant. The coworker, similarly, did not remember using the defendant's last name with the juror. The judge's assessment of their credibility was “a matter particularly within her province,” and we can discern no reason to question it. Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012). As the juror had no reason to connect her coworker's boyfriend “Rob” to the defendant, the defendant failed to show that the juror was exposed to an extraneous influence.

We can discern no abuse of discretion in the judge's not interviewing the other jurors sua sponte. Once the judge addressed the matter with the juror and the coworker, the judge was well within her discretion in being satisfied that no extraneous influence had occurred. See Commonwealth v. Billingslea, 484 Mass. 606, 632 (2020), quoting Commonwealth v. Colon, 482 Mass. 162, 168 (2019) (“A trial judge ‘has discretion in addressing issues of extraneous influence on jurors ․’ ”).

Judgment affirmed.

FOOTNOTES

2.   After a jury-waived trial on the subsequent offense portion of the indictment, the defendant was convicted of an eighth offense.

3.   The defendant falsely claimed to a police officer that it was not his.

4.   Although the defendant was twice referred to as “Rob” during the trial, most references to him were as “Robert.”