COMMONWEALTH v. CHIAPULIS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted of operating a motor vehicle under the influence of alcohol as a second offense, G. L. c. 90, § 24 (1) (a) (1), the defendant argues that the evidence was insufficient, maintaining that the area where police found him operating his motor vehicle was not a public way. He further argues that a substantial risk of a miscarriage of justice arose when a police witness interjected an opinion that he was “operating impaired.” We affirm.

We review the sufficiency of the evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In the light most favorable to the Commonwealth, the jury could have found that the location where the officer saw the defendant operating his vehicle was a public way, i.e., “any place to which the public has a right of access,” or “any way or ․ any place to which members of the public have access as invitees or licensees.” Commonwealth v. Cabral, 77 Mass. App. Ct. 909, 910 (2010), quoting G. L. c. 90, § 24 (1) (a) (1). It was a parking lot on the grounds of the former Pleasant Street School, owned by the town of Spencer. No barrier or fence, and no warning such as a “No Trespassing” sign restricted access to the lot. See Cabral, supra (city-owned property unrestricted by barriers or signs was public way). Contrast Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 551 (1996) (unevenly surfaced gravel haul road on private property of business not public way). Merely because the lot was being used as a construction staging area and the defendant's car was stuck in mud between two thirty-foot mounds of dirt did not alter its status. Nor did the police officer's testimony that the general public had “[n]o legitimate reason” to park in the lot because it was being used as a construction site; she also testified that the lot “is still open because it's never been closed off,” and “[t]he construction crew was parking there and they were part of the public.” Whether the parking lot was a public way depended on its objective appearance, not the status of any particular driver. See Commonwealth v. Hart, 26 Mass. App. Ct. 235, 237-238 (1988). Even if the defendant was in the parking lot “without benefit of a specific license or invitation,” evidence of the lack of signs or barriers obstructing access to it sufficed to prove it was a public way. Commonwealth v. Stoddard, 74 Mass. App. Ct. 179, 182 (2009).

Further, even if the public school parking lot were not a public way, there was ample circumstantial evidence from which the jury could infer that the defendant drove his car on the adjacent street to reach the lot and was impaired by alcohol consumption when he did so. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010). The parking lot was accessible only by traveling on Pleasant Street, a public way. When at about 8 a.m. the police officer came upon the defendant asleep behind the wheel of his car, it was stuck in mud up to the rims of its tires and its engine was running and in drive. The defendant told the police officer that he was “headed home” and had “just” dropped off his vehicle, and acknowledged he had drunk alcohol, saying “it's all from the night before.” From that, the jury could infer that the defendant had recently traveled on Pleasant Street to reach the school parking lot, and had been intoxicated when he did so. See id. There was no requirement that a percipient witness see the defendant operating the vehicle on Pleasant Street. See Commonwealth v. Hilton, 398 Mass. 63, 67 n.5 (1986), quoting State v. Pritchett, 53 Del. 583, 598-599 (Del. Sup. Ct. 1961) (“[d]efendant's car didn't reach the position where it was found by some magical process; no figure from outer space dropped it from the sky”).

Finally, no substantial risk of a miscarriage of justice arose from the police officer's testimony giving an unsolicited opinion as to the ultimate issue in the case. Asked if she had formed an opinion as to the defendant's sobriety, the officer replied, “I believe he was operating impaired.” Similar testimony was held impermissible in Commonwealth v. Canty, 466 Mass. 535, 544 (2013), over that defendant's objection. Here, however, there was no objection. Where the evidence was overwhelming, the judge's instructions to the jurors that they were “the sole and exclusive judges of the facts” and that “[they] alone determine the weight, the effect and the value of the evidence as well as the credibility of the witnesses” sufficed to avert any substantial risk of a miscarriage of justice. Cf. id. (similar instructions cured prejudice from objected-to testimony that defendant's “ability to drive was diminished” by alcohol consumption).

Judgment affirmed.