Commonwealth v. Edward H. Cavanaugh, Third.

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

21-P-871

COMMONWEALTH

vs.

EDWARD H. CAVANAUGH, THIRD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of operating

a motor vehicle under the influence of intoxicating liquor

(OUI). The defendant argues on appeal that the trial judge

should have either excluded a video recording of the police

booking process (video) from evidence or continued the trial to

allow the defendant to further prepare his defense. The

defendant also argues that there was insufficient evidence to

support his conviction. We affirm.

Background. We summarize the evidence in the light most

favorable to the Commonwealth. See Commonwealth v. Latimore,

378 Mass. 671, 676-677 (1979). One evening in June 2019,

Randolph auxiliary officer Sean O'Connor observed fireworks

coming from a gated storage facility. Accompanied by a second

auxiliary officer, O'Connor approached the gate and saw the
defendant setting off fireworks. When O'Connor told the

defendant to put the fireworks away, the defendant responded,

"What is your problem?" O'Connor repeated his instruction and

began to walk away. When the fireworks continued, O'Connor

returned to the gate and yelled, "I thought I told you to put

the fireworks away." The defendant approached the gate and

said, "What are you going to do about it?" and "What is your

problem?" O'Connor smelled a "pretty strong" odor of alcohol

coming from the defendant and called for a sector car. The

defendant then walked toward a vehicle within the gated area,

entered it, and drove around the storage facility toward the

exit, stopping when he encountered the sector car that had just

arrived.

Randolph police Officer Steven Elman got out of the sector

car and spoke to the defendant. The defendant stated that he

was not shooting fireworks and initially accused the two

uniformed auxiliary officers of trying to sell him fireworks.

He then said, "No, that wasn't them." Elman observed that the

defendant's speech was "slurred" and his eyes were "red and

watery." When the defendant stepped out of the vehicle at

Elman's request, Elman noticed that he was "unsteady on his

feet," "couldn't stand without assistance," and smelled "of an

alcoholic beverage." Elman asked the defendant if he had

consumed any drinks that night, and the defendant answered that

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he had two beers. The defendant agreed to take field sobriety

tests, but, after he disclosed that he had sciatica in his legs

and a hernia, Elman asked him only to recite the alphabet

without singing. It took the defendant three attempts to

successfully complete this test.

The defendant was arrested and transported to a police

station for booking. The booking officer observed that the

defendant had "glassy" eyes, emitted a "slight smell" of

alcohol, "was kind of swaying back and forth," "mumbled a lot,"

and spoke at a slow pace. The defendant at first told the

booking officer that he had "one nip" of "Fireball" but later

stated that he had two.

Discussion. 1. Booking video. During discovery in

December 2019, the Commonwealth provided the defendant with the

booking video. In June 2021, two days before trial, a judge

(not the trial judge) asked at a hearing whether the

Commonwealth would be offering the video. The Commonwealth

replied that "as of now" it was not intending to do so, but that

it was "possible" that the trial prosecutor, who had not yet

been assigned, would decide differently. The judge advised the

parties that, in such event, any redactions to the video should

be made before trial.

Later that day, the assigned trial prosecutor informed

defense counsel that he would in fact be offering the video and

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would send proposed redactions. On the morning of trial, while

the parties reported that they had agreed on the redactions, the

defendant moved to exclude the video as more prejudicial than

probative or, in the alternative, for a continuance. The trial

judge denied the motion, stating that the video was produced

during discovery and so the defendant could not reasonably claim

"surprise."

We discern no abuse of discretion in the trial judge's

decision to admit the video. It is "within the sound discretion

of the trial judge" to determine whether the probative value of

an item of evidence is "substantially outweighed by its

prejudicial or cumulative nature." Commonwealth v. Bonds, 445

Mass. 821, 831 (2006). We will not disturb the judge's

determination absent "palpable error." Id.

The defendant argues that the video was unduly prejudicial

because it shows him in a "jailhouse setting." We are not

persuaded. The video, which is fairly benign, shows the

defendant in a police station, not a "jailhouse setting," and

the jury already knew that he was arrested. The defendant fails

to identify any other prejudicial aspect of the video.

Moreover, the video was probative because it included the

defendant's recorded admission to consuming "Fireball" and

enabled the jury to assess the defendant's appearance and

conduct. See Commonwealth v. Moore, 480 Mass. 799, 808 (2018)

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(evidence is relevant if it "provide[s] a link in the chain of

proof bearing on an issue of consequence").

For similar reasons we reject the defendant's argument that

the judge should have excluded the video as cumulative of the

officers' testimony. The video was not cumulative because it

was the only evidence that allowed the jury to assess the

defendant's appearance and conduct for themselves. See

Commonwealth v. Magri, 462 Mass. 360, 369 (2012) (objects

linking defendant to crimes "not cumulative of the

Commonwealth's other evidence that the defendant participated in

those crimes, which consisted primarily of testimony"). And

even were the video cumulative, the judge was within his

discretion in admitting it, especially where it did not result

in any unfair prejudice to the defendant. See Commonwealth v.

Boyarsky, 452 Mass. 700, 711 (2008) (whether to exclude evidence

as cumulative is entrusted to trial judge's discretion).

We also see no abuse of discretion in the judge's denial of

the defendant's request for a continuance. See Commonwealth v.

Ray, 467 Mass. 115, 128 (2014). The defendant argues that a

continuance was warranted because it would have allowed him to

"enlist experts to scrutinize his physical infirmities to

explain [the] officers' observations." But the defendant does

not dispute that the Commonwealth provided the video during

discovery, about one and one-half years before trial. In these

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circumstances the judge was within his discretion to find that

the Commonwealth's use of the video was not, or should not have

been, "a surprise" to the defendant.

2. Sufficiency of the evidence. On a sufficiency

challenge, "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. To sustain

an OUI conviction, the Commonwealth must prove three elements

beyond a reasonable doubt: (1) operation of a motor vehicle,

(2) on a public way, (3) while under the influence of

intoxicating liquor. See G. L. c. 90, § 24 (1) (a) (1);

Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 728 (2016).

Only the third element is at issue. To meet that element, the

Commonwealth must prove that "the defendant's consumption of

alcohol diminished the defendant's ability to operate a motor

vehicle safely" but "need not prove that the defendant actually

drove in an unsafe or erratic manner." Commonwealth v.

Connolly, 394 Mass. 169, 173 (1985).

The evidence here was sufficient to establish that the

defendant's ability to operate a motor vehicle was impaired by

his consumption of alcohol. The officers testified that the

defendant smelled of alcohol, was belligerent, had red and

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glassy eyes and slurred speech, and was swaying and unsteady on

his feet. The defendant also needed three attempts to complete

a field sobriety test and admitted to consuming alcohol that

night, while giving inconsistent answers about the type and

amount of alcohol he consumed. Based on this evidence, which

showed that "the defendant exhibited classic symptoms of alcohol

intoxication," rational jurors could have found that the

defendant's consumption of alcohol diminished his ability to

safely operate a motor vehicle. Commonwealth v. Gallagher, 91

Mass. App. Ct. 385, 392 (2017). See Commonwealth v. Sudderth,

37 Mass. App. Ct. 317, 321 (1994) (evidence sufficient to

establish diminished capacity to operate where "defendant was

belligerent, unsteady on his feet[,] and smelled of alcohol").

Judgment affirmed.

By the Court (Sullivan,
Shin & Hodgens, JJ.1),

Clerk

Entered: March 3, 2023.

1 The panelists are listed in order of seniority.

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