Commonwealth v. Domenic A. Columbo.

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

24-P-147

COMMONWEALTH

vs.

DOMENIC A. COLUMBO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury found the

defendant, Domenic Columbo, guilty of two counts of assault and

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b),

and one count of operating under the influence of alcohol

causing serious bodily injury, G. L. c. 90, § 24L. We agree

with the defendant that the process used to discharge a

deliberating juror requires reversal, and we comment briefly on

additional claims bearing on a retrial.

Background. On December 31, 2017, the defendant, a Boston

police officer, completed his New Year's Eve shift and drank

beers with other officers for several hours until about 3 A.M.

About twenty minutes later, the defendant drove his personal
Ford F-150 pickup truck into a Columbia Road intersection at

sixty-five miles per hour through a zone limited to twenty-five

miles per hour, and crashed, without braking, into a Honda

Accord that was turning left at the intersection. Two occupants

in the Honda, Jose Teixeira and Jay Dos Santos, suffered serious

injuries. Another motorist stopped to render aid and saw the

defendant turn off his police radio scanner and "pretend[] to

pass out." After medical personnel transported the defendant to

the hospital, a treating physician noticed that he "smelled like

alcohol." Hospital personnel obtained a blood sample as part of

a "trauma order set." The defendant had a blood alcohol level

between .11 and .12.

Discussion. 1. Discharge of deliberating juror. An

alternate juror may be substituted when a deliberating juror

"dies, or becomes ill, or is unable to perform his duty for any

other good cause shown to the court." G. L. c. 234, § 26B.

Accord Mass. R. Crim. P. 20 (d) (3), 378 Mass. 889 (1979). "The

discharge of a deliberating juror is a sensitive undertaking and

is fraught with potential for error. It is to be done only in

special circumstances, and with special precautions."

Commonwealth v. Connor, 392 Mass. 838, 843 (1984). Discharge

must be based upon "reasons personal to [that] juror, having

nothing whatever to do with the issues of the case or with the

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juror's relationship with his fellow jurors." Id. at 844-45.

When a juror asserts an incapacity to continue serving, a

hearing must be held where the judge "should preliminarily

inform [the juror] that he cannot be discharged unless he has a

personal problem, unrelated to his relationship to his fellow

jurors or his views on the case." Id. at 845. This advisory

and hearing are necessary to satisfy the judge that the alleged

incapacity is not a "mere euphemism[] for the truth: that the

juror was persistent in asserting a minority position during

deliberations." Id. at 846.

Neither the advisory nor the hearing occurred here. At the

start of the third day of deliberations, the judge reported to

counsel that the court received a recorded phone message from a

juror. According to the judge, who listened to the message (not

made part of the record), the caller "sounded quite out of it"

and "had a fever, serious GI issues, and was not going to be

here today." Over the defendant's objection, the judge found

that the juror's illness was "going to disable her for several

days," and concluded that he had "no choice, but to excuse her."

This procedure was not adequate to discharge a deliberating

juror.

Juror service is at its apex in deliberations and cannot be

terminated by a juror merely calling in sick through a voicemail

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message. See Commonwealth v. Perez, 30 Mass. App. Ct. 934, 935

(1991) (error to discharge deliberating juror where nothing in

record "beyond the judge's statement that a juror was 'sick'").

Without the requisite advisory and hearing, the judge had no

basis for assuring himself that the juror's voicemail message

was "unrelated" to the juror's "relationship" to fellow jurors

or the merits of the case. Connor, 392 Mass. at 845. See,

e.g., Commonwealth v. Holley, 478 Mass. 508, 530 (2017)

(deliberating juror properly discharged where judge telephoned

ill juror, questioned her in presence of counsel, provided

opportunity for counsel's questions, and made specific

findings). Therefore, the defendant's convictions must be

vacated.

2. Sufficiency of evidence. The defendant challenges the

sufficiency of the evidence showing that he was under the

influence of intoxicating liquor. "[T]he phrase 'under the

influence' refers to impairment, to any degree, of an

individual's ability to safely perform the activity in

question." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477,

479 (2016). "Thus, 'in a prosecution for [OUI], 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.'" Id. Impairment

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may be proven by circumstantial evidence. See Commonwealth v.

Flanagan, 76 Mass. App. Ct. 456, 464 (2010); Commonwealth v.

Sudderth, 37 Mass. App. Ct. 317, 321 (1994). We consider

"whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found"

this essential element beyond a reasonable doubt. Commonwealth

v. Latimore, 378 Mass. 671, 677 (1979) quoting Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979).

Ample evidence enabled jurors to conclude that alcohol

diminished the defendant's ability to operate his vehicle

safely. He consumed alcohol in the hours preceding the crash,

he approached an intersection at high speed, he drove at a speed

that exceeded the speed limit, he failed to yield to a vehicle

passing through an intersection, he failed to apply the brakes

before the crash, he smelled of alcohol, and his blood alcohol

content exceeded the legal limit. Such evidence was sufficient.

See, e.g., Commonwealth v. Colturi, 448 Mass. 809, 817 (2007)

(impairment inferred from evidence including blood alcohol

content above legal limit); Commonwealth v. Proia, 98 Mass. App.

Ct. 125, 127-28 (2020) (impairment inferred from evidence

including serious motor vehicle crash and odor of alcohol);

Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353-54 (2015)

(impairment inferred from evidence including consumption of

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alcohol, odor of alcohol, and speed). Contrary to the

defendant's claim, the Commonwealth was not required to produce

expert testimony establishing the significance of his blood

alcohol level where the case was tried on both per se and

impairment theories. See Colturi, 448 Mass. at 817;

Commonwealth v. Douglas, 75 Mass. App. Ct. 643, 652 (2009).

Additionally, jurors could have inferred consciousness of guilt

in the aftermath of the crash where the defendant turned off his

police radio scanner and "pretend[ed] to pass out" when

approached by a motorist coming to his aid. See Commonwealth v.

Indrisano, 87 Mass. App. Ct. 709, 718 (2015) (consciousness of

guilt inferred from concealment or similar acts).

To the extent the defendant claims his position is aided by

the absence of a special verdict slip, we disagree. In addition

to showing impairment, evidence also showed the defendant had a

blood alcohol level between .11 and .12. Such evidence allowed

jurors to conclude that the defendant had a blood alcohol level

above the .08 percent limit and provided an alternative and

sufficient basis of liability. See Colturi, 448 Mass. at 810

(blood alcohol percentage of .08 constitutes per se violation

that is alternative to impaired ability violation); Commonwealth

v. Douglas, 75 Mass. App. Ct. 643, 652 (2009).

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3. Authentication of blood vial photographs. The judge

denied the defendant's motion in limine to exclude evidence that

his blood had been drawn at the hospital. On appeal, the

defendant contends that his motion should have been allowed

because no one could authenticate photographs of blood vials,

and no one testified as to who had extracted a sample of the

defendant's blood. Although no evidence indicated who extracted

the defendant's blood, sufficient "confirming circumstances"

indicated that the photographs depicted vials containing the

defendant's blood extracted by medical personnel at the hospital

following the crash. See Commonwealth v. Purdy, 459 Mass. 442,

450-451 (2011).

"[E]vidence may be authenticated by circumstantial evidence

alone, including its '[a]ppearance, contents, substance,

internal patterns, or other distinctive characteristics'"

(citation omitted). Commonwealth v. Davis, 487 Mass. 448, 466

(2021). Here, evidence showed that a physician ordered blood

tests for the defendant; the nurse testified to the procedure

for extracting and storing a blood sample, including putting a

label on the vial with the patient's name and date of birth; and

medical records indicated blood tests were performed. Thus, the

evidence presented "an ample foundation for the judge to

determine that a reasonable jury could find by a preponderance

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of the evidence" that the photographs depicted vials of the

defendant's blood drawn at the hospital. Commonwealth v. Welch,

487 Mass. 425, 442 (2021). Moreover, any argument relating to

the "[a]lleged defects in the chain of custody usually go to the

weight of the evidence and not its admissibility." Commonwealth

v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992).

4. Medical records. The defendant asserts that the judge

erred in allowing highly prejudicial propensity evidence to be

admitted through the defendant's medical records. Specifically,

the defendant objected to specific references in the medical

records indicating that "the patient endorsed daily alcohol

consumption," and that the discharge instructions included

"learning about alcohol misuse." The defendant argues that

these references undermined the defense and suggested that the

defendant was an alcoholic who consumed excessive alcohol on the

day in question. See Commonwealth v. Thomas, 44 Mass. App. Ct.

521, 524 (1998) ("[E]vidence of prior bad acts may not be

received to show the defendant's propensity to commit the crime

charged"). The Commonwealth concedes that the admission of the

discharge instructions titled "Learning about Alcohol Misuse"

constituted error but argues that such evidence was not

prejudicial to the defendant. Given the posture of this case,

we need not assess the impact of this evidence, but we note in

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the event of a retrial, the judge may consider anew whether the

probative value of this portion of the medical records is

substantially outweighed by the danger of unfair prejudice. See

Mass. G. Evid. § 403 (2024).

Judgments vacated.

Verdicts set aside.

By the Court (Meade,
Hodgens & Toone, JJ.1),

Clerk

Entered: June 20, 2025.

1 The panelists are listed in order of seniority.

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