COMMONWEALTH v. WARRICK (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Dirrell Warrick, was convicted by a jury of operating under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a) (1). After the conclusion of the trial, one of the jurors notified the court that she may have been familiar with the defendant, but could not be sure. The defendant filed an assented to motion seeking the disclosure of this particular juror's name and address; his motion was denied by the trial judge. On appeal, the defendant argues that (1) there was insufficient evidence to show that he was under the influence of alcohol at the time he operated his vehicle, and (2) the trial judge erred in denying his motion to disclose the relevant juror's name and contact information. We affirm the judgment, and reverse the order denying the defendant's postconviction motion.

Background. We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

On July 8, 2017, shortly before 3 a.m., State Trooper Jacob Sheehan observed a gray car pulled over in the breakdown lane of Interstate Highway 91. In response, Trooper Sheehan activated his emergency lights and pulled his vehicle behind the gray car. He then approached the driver's side of the car, and observed one occupant, later identified as the defendant, “passed out behind the wheel.” Trooper Sheehan attempted to awaken the defendant by knocking on the window and yelling, but the defendant did not react. Trooper Sheehan then opened the door and conducted a sternum rub,² which is a maneuver used by the police to gain an individual's attention.

The defendant was awoken by the sternum rub, and Trooper Sheehan instantly noticed that his eyes were “glossy and bloodshot.” He further detected a strong odor of alcohol emanating from the defendant's car. Trooper Sheehan asked the defendant whether he was experiencing a medical emergency, but the defendant replied that he was not. Instead, the defendant explained that his car ran out of gasoline, so he pulled over and fell asleep.³ Trooper Sheehan asked where the defendant was coming from, and the defendant responded “Maximum Capacity,” which Trooper Sheehan knew to be “a bar/club in Chicopee.” Trooper Sheehan also noticed that the defendant's speech was “slow and slurred.” The trooper asked for the defendant's driver's license, and in response, the defendant handed him a five dollar bill. Trooper Sheehan asked the defendant if he had his wallet, and despite the fact that the trooper could see the wallet in the defendant's cup holder, the defendant replied that he did not. After Trooper Sheehan pointed out the wallet, the defendant fumbled with it, and eventually provided the trooper with his driver's license.

Trooper Sheehan requested the assistance of another cruiser, and Trooper Jonathan Blanchard arrived at the scene shortly thereafter. At this point, Trooper Sheehan asked the defendant to exit his car. Before doing so, the defendant turned his key in the ignition, illuminating the instrument panel of the car. Once out of his car, the defendant was unsteady on his feet and was swaying from side to side. Trooper Sheehan asked the defendant to perform a series of field sobriety tests. First, he asked the defendant to perform a “nine-step walk-and-turn test,” which required the defendant to take nine steps forward, heel to toe, while looking down at his feet, counting out loud, and keeping his arms down by his sides. Once he completed the nine steps forward, the defendant was to turn around and repeat. The defendant, however, failed to walk heel to toe, as instructed, and took ten steps forward instead of nine. The defendant also failed to turn around and repeat the nine steps. Trooper Sheehan next asked the defendant to perform “the one-legged stand test,” which required the defendant to lift one leg approximately six inches off the ground and count until instructed to stop. The defendant was unable to raise his foot for longer than five seconds, and lowered his foot before being instructed to do so. Based on the defendant's performance of these tests and his observations of the defendant, Trooper Sheehan determined that the defendant was under the influence of alcohol and placed him under arrest for OUI.

Discussion. 1. Sufficiency of the evidence. “In determining the validity of a claim challenging the sufficiency of the Commonwealth's evidence at trial, we review the evidence in the light most favorable to the Commonwealth to determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting Latimore, 378 Mass. at 677. “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).

“In order to be convicted of an OUI, the Commonwealth must prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of intoxicating liquor.”⁴ Commonwealth v. Jewett, 471 Mass. 624, 635 (2015). The defendant concedes that the evidence was sufficient to prove that he was under the influence of intoxicating liquor at the time he was found by Trooper Sheehan, and further concedes that he operated his car on Interstate Highway 91 prior to parking on the side of the highway.⁵ The defendant, however, argues that the evidence was insufficient to prove that he operated his car while he was under the influence of intoxicating liquor. We disagree.

Here, the defendant was found unconscious in his car at approximately 3 a.m., and was extremely difficult to waken. When the defendant finally woke up, he was visibly impaired, with slurred speech and bloodshot eyes, as well as an inability to properly follow simple commands. The defendant informed Trooper Sheehan that he had come from Maximum Capacity, an establishment that serves alcohol until 2 a.m. See Commonwealth v. Otmishi, 398 Mass. 69, 71 (1986) (defendant's admission “he had come from a bar” considered evidence of driving while intoxicated). Further, despite looking in the car for the defendant's wallet, and leaning inside the car to conduct the sternum rub, Trooper Sheehan did not observe any containers of alcohol, empty or otherwise, inside the car. See Commonwealth v. Hilton, 398 Mass. 63, 68 (1986) (lack of alcohol at scene supports inference that defendant consumed alcohol before driving). Based on this evidence, it was more than reasonable for the jury to infer that the defendant did not become intoxicated after parking his car, but rather, consumed alcohol at Maximum Capacity, and drove his car while impaired before pulling over on Interstate Highway 91.

The defendant contends that the evidence was insufficient to show that he was intoxicated prior to parking his car because his car was not parked in a negligent or improper fashion. While the manner in which a vehicle is parked may be relevant to determining whether the vehicle was driven under the influence of alcohol, it is but one factor in the analysis. See Otmishi, 398 Mass at 71; Hilton, 398 Mass. at 68. Compare Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 319-320 (1994) (insufficient evidence to support inference that defendant was intoxicated prior to parking where defendant discovered with several empty beer cans in legally parked vehicle). Moreover, the jury were free to consider that the defendant's car was not parked in a typical fashion, but rather was parked in the breakdown lane of a highway at 3 a.m., seemingly without gasoline in the gas tank. Each piece of evidence must not be considered in isolation, but “[v]iewed as a whole.” Commonwealth v. Cabral, 77 Mass. App. Ct. 909, 909 (2010), quoting Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006). See Sudderth, supra at 320-321 (ample evidence to support OUI determination at time defendant “operated” motor vehicle). Drawing all reasonable inferences in the light most favorable to the Commonwealth, the circumstantial evidence was sufficient for the jury to conclude that the defendant's ability to drive his car was diminished while he was driving and immediately prior to parking the car on the side of Interstate Highway 91.⁶ See Petersen, supra at 53, quoting Commonwealth v. Best, 381 Mass. 472, 483 (1980) (“That the case against [the defendant] was ‘circumstantial’ in some sense of that dubious term does not suggest that the proof was insufficient”).

2. Motion to disclose juror's name and address. Following the defendant's conviction, one of the jurors informed a court officer that she may have known or been familiar with the defendant.⁷ The defendant was not present for this interaction, nor was it on the record, but at the defendant's sentencing hearing on July 2, 2018, the judge notified him that this conversation occurred. On this date, the defendant made an oral motion requesting the juror's name, and the judge instructed him to file a written motion to obtain that information. On July 14, 2018, with the assent of the Commonwealth, the defendant filed a motion seeking the disclosure of the juror's name and address. However, on July 28, 2018, the judge denied the motion, stating that “[t]here is no basis or reasoning presented for the delay of this motion. All jurors were polled and answered in the affirmative that the [d]efendant was guilty.” The defendant contends, and the Commonwealth concedes, that this was error. We agree.

“[T]he identities of jurors empanelled to serve at criminal trials are presumptively public under long-standing Massachusetts law, practice, and tradition.” Commonwealth v. Fujita, 470 Mass. 484, 486 (2015). By statute, this information is public record, and the lists “contain[ing] the name, address, and date of birth of each juror ․ shall be available upon request for inspection by parties, counsel, their agents, and members of the public.” G. L. c. 234A, § 67. Accordingly, “absent extraordinary circumstances,” such as a need “to protect the jurors from harm or improper influence,” a motion for the disclosure of juror contact information should be granted. See Fujita, supra at 486 & n.7, quoting Commonwealth v. Angiulo, 415 Mass. 502, 527 (1993). Here, the reasons the judge provided for denying the defendant's motion -- the defendant's delay in filing the motion and the unanimity of the jurors’ verdicts -- were insufficient to justify the denial of the defendant's motion for disclosure of the juror's name and address.

Conclusion. For the foregoing reasons, we affirm the judgment and reverse the order denying the defendant's postconviction motion for the disclosure of the juror's name and address.

So ordered.

Affirmed in part; reversed in part.

FOOTNOTES

2.   At trial, Trooper Sheehan testified that a “[s]ternum rub is where you take your knuckles and you press [them] firmly against their breastbone area, which makes it -- it's very uncomfortable and somewhat painful.”

3.   Trooper Sheehan testified that at some point during their interaction, the defendant attempted to start the car, but was unsuccessful.

4.   It is undisputed that Interstate Highway 91 is a public way.

5.   We agree that the evidence was sufficient to establish both that the defendant was impaired, see Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 219 (2019), and that the defendant drove on Interstate Highway 91 prior to pulling his car over to the breakdown lane. See Commonwealth v. Hilton, 398 Mass. 63, 67 n.5 (1986), quoting State v. Pritchett, 53 Del. 583, 598-599 (Super. 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”).

6.   The Commonwealth contends that the defendant turning his key in the ignition when asked to exit his car is a separate ground upon which the defendant's conviction could be affirmed. See Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 647 (2011) (defendant's act of turning key in ignition sufficient to permit jury to find operation). The defendant argues, however, that because his car had run out of gasoline, it was mechanically inoperable, and thus a conviction for operating under the influence could not be sustained on this ground. Because of our disposition of the defendant's sufficiency claim, we need not decide whether a vehicle that has run out of gasoline is mechanically inoperable, as a matter of law, under G. L. c. 90, § 24 (1) (a) (1).

7.   The juror expressed concerns that she or her boyfriend may have known the defendant, but she was not entirely sure.