Commonwealth v. Sarge A. Francolini.

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

23-P-469

COMMONWEALTH

vs.

SARGE A. FRANCOLINI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury found the defendant guilty of

operating a motor vehicle under the influence of intoxicating

liquor (OUI) and of negligent operation. Subsequently, the

judge found the defendant guilty of OUI, second offense. The

defendant also had been charged with possession of a class B

substance, and the clerk had told the jury venire of that charge

during jury selection. However, the Commonwealth informed the

judge prior to trial that it would not proceed on that charge,

and it presented no evidence relating to the charge at trial.

Accordingly, the judge allowed the defendant's motion for a

required finding of not guilty on the drug charge. On appeal,

the defendant challenges the sufficiency of the evidence as to

both convictions. He additionally argues that reversal is
required because the jurors had been informed about the drug

charge. We affirm.

1. Sufficiency. a. OUI. The defendant crashed his car

while driving -- by his own admission -- sixty miles per hour in

a twenty-five mile per hour zone.1 When the police came across

the accident scene, they observed that the defendant had "red,

glassy, bloodshot eyes," and that he was slurring his speech.

They "notice[d] a very strong odor of an alcoholic beverage that

was emanating from within the vehicle," and that this odor

followed him. Inside the vehicle they found an empty bottle of

vodka and an opened package of the alcoholic beverage known as

"Twisted Tea," with three cans missing.2

1 Based on the principle that a conviction cannot be based solely
on an uncorroborated confession, see Commonwealth v. Leavy, 60
Mass. App. Ct. 249, 251 (2004), the defendant appears to suggest
that his admission that he was speeding cannot be considered.
There are two flaws in such an argument. First, the admission
that he was speeding finds corroboration in other evidence,
e.g., evidence of the accident itself. Second, neither
conviction is based solely on the defendant's admission that he
was speeding.

2 There also was extensive testimony regarding field sobriety
tests and the defendant's performance on two such tests. That
evidence was somewhat mixed, and the arresting officer himself
described the results as "inconclusive" in his arrest report.
To the extent that the defendant's performance on the tests
could be characterized as indicative of intoxication, such
evidence provides some support for the OUI conviction. We need
not review the particulars, because the evidence overall is well
sufficient without taking the field sobriety tests into account.

2
Such evidence is of the type and quantity that repeatedly

has been found sufficient. See, e.g., Commonwealth v.

Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017). In arguing to

the contrary, the defendant offers alternative explanations for

the incriminating evidence against him. For example, he

suggests that the accident may have been caused by weather and

road conditions, not his being intoxicated, and that the

condition of his eyes may have been caused by the fact that he

had been crying. However, in assessing the sufficiency of the

evidence, we are to view the evidence -- including all

reasonable inferences therefrom -- in the light most favorable

to the Commonwealth. See Commonwealth v. Latimore, 378 Mass.

671, 677-678 (1979). The ultimate question is whether the

evidence, viewed in that light, was sufficient to persuade any

rational fact finder that the essential elements of the crimes

charged had been established beyond a reasonable doubt. Id.

The Commonwealth's evidence of intoxication here easily meets

that standard.

b. Negligent operation. To prove negligent operation, the

Commonwealth must demonstrate that the defendant drove his car

negligently so that the lives or safety of the public might be

endangered. See Commonwealth v. Teixeira, 95 Mass. App. Ct.

367, 369 (2019). Here, the Commonwealth presented evidence that

the defendant, while intoxicated, was driving at more than twice

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the allowed speed and crashed his car. Such evidence was more

than sufficient to support a negligent operation charge. In

arguing to the contrary, the defendant points to cases that say

that negligent operation is not established by the mere fact of

an accident, by the mere fact that a defendant was speeding, or

by the mere fact that a defendant drove while intoxicated. See

Commonwealth v. Zagwyn, 482 Mass. 1020, 1022 (2019);

Commonwealth v. Howe, 103 Mass. App. Ct. 354, 358 (2023);

Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922-923 (2004).

Here, the Commonwealth provided proof of all three, and those

cases therefore are beside the point.

2. Mention of drug charge. As noted, the defendant

originally had been charged with possession of a class B

substance, and the jury venire was so informed during the jury

selection process. Shortly thereafter, the Commonwealth

disclosed at side bar that it was not prepared to proceed on

that charge. The defendant immediately requested a mistrial,

which the judge denied. In doing so, the judge analogized the

situation to the more common one, where at the close of

evidence, a charge is removed from the jury's consideration by

the allowance of a motion for a required finding of not guilty.

As the judge pointed out, there are standard curative

instructions designed to deal with that situation. The judge

offered to provide such an instruction, and the Commonwealth

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assented. While continuing to maintain that a mistrial was

appropriate, the defendant requested that, if a curative

instruction was to be given, it should be given immediately, not

later.

The judge denied the defendant's request that she provide a

contemporaneous curative instruction. As part of her final

instructions, however, the judge stated the following:

"Members of the Jury, I've also withdrawn from your
consideration the following charge against the Defendant,
which is a possession of a Class B substance. That charge
has been disposed of and is no longer before you for your
decision. You are to deliberate in this case only
concerning the remaining two charges pending against the
Defendant; namely, operating a motor vehicle under the
influence of alcohol and negligent operation of a motor
vehicle. You are not to speculate about why that charge
has been withdrawn from your consideration and it is not to
influence your verdict on the remaining charges in any way.
Your responsibility now is to decide the charges that
remain pending against the Defendant based solely on the
evidence concerning those charges which are now before
you."

When the judge asked at side bar whether the parties were

"content with the instructions as [she had] given them," defense

counsel answered "yes."

As the defendant acknowledges, a judge has broad discretion

whether to declare a mistrial. See Commonwealth v. Brown, 386

Mass. 17, 30 (1982). The judge did not abuse her discretion in

deciding that the single, passing mention of the drug charge

before trial even had commenced did not warrant a mistrial, and

that any prejudice could be addressed by giving a curative

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instruction. As to the wording of the instruction that was

given, the defendant raised no objection to it at trial, nor

does he contest it now. Rather, his focus is on the timing of

the instruction. Without deciding whether it might have been

preferable for the judge to have given the instruction earlier

in accordance with the defendant's request, it is difficult to

discern how the slight delay made any appreciable difference.

In this regard, we note that this was a very short trial, with

only one witness whose testimony was brief. The judge did not

abuse her discretion in choosing to give the curative

instruction as part of her final instructions. Moreover, in

light of the expectation that jurors will "follow instructions

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to disregard matters withdrawn from their consideration,"

Commonwealth v. Cameron, 385 Mass. 660, 668 (1982), the

defendant cannot demonstrate prejudice.

Judgments affirmed.

Order denying renewed motion
for a required finding of
not guilty or in the
alternative for new trial
affirmed.

By the Court (Milkey,
Massing & Neyman, JJ.3),

Assistant Clerk

Entered: February 29, 2024.

3 The panelists are listed in order of seniority.

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