Commonwealth v. Diane G. Morrill.

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-22

COMMONWEALTH

vs.

DIANE G. MORRILL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bifurcated trial, the defendant was convicted of

operating a motor vehicle while under the influence of alcohol

(OUI), fourth offense.1 On appeal, the defendant challenges

(1) the sufficiency of the evidence, (2) misstatements of

evidence in the prosecutor's closing, and (3) the absence of a

waiver colloquy prior to a bench trial on the subsequent offense

portion of the charge.2 We conclude that the evidence before the

jury was sufficient to find that the defendant operated her

vehicle while under the influence of alcohol and that errors in

1 After the jury trial, the "third offense or greater" element
was tried in a bench trial. See G. L. c. 278, § 11A.
2 The defendant also was found responsible on a marked lanes

violation pursuant to G. L. c. 89, § 4A, and possession of an
open container in a motor vehicle in violation of G. L. c. 90,
§ 24I. Both findings were filed, are not addressed on appeal by
the defendant, and are not otherwise before us.
the Commonwealth's closing argument did not prejudice the

defendant. We vacate so much of the judgment as found the

defendant guilty of a fourth offense but otherwise affirm the

judgment on the underlying conviction of OUI.

1. Sufficiency of the evidence. "When reviewing the

denial of a motion for a required finding of not guilty, 'we

consider the evidence introduced at trial in the light most

favorable to the Commonwealth, and determine whether a rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.'" Commonwealth v. Ross, 92

Mass. App. Ct. 377, 378 (2017), quoting Commonwealth v. Oberle,

476 Mass. 539, 547 (2017). Because the defendant challenges

only the sufficiency of the evidence of intoxication, we focus

only on that element. See G. L. c. 90, § 24 (1) (a) (1);

Commonwealth v. Coleman, 434 Mass. 165, 167 (2001) (where

defendant only challenged finding of deliberate premeditation,

Supreme Judicial Court only considered sufficiency of evidence

relevant to that element).

Viewing the evidence in the required light, the defendant

was stopped by Officer Zachary Schaeffer after he observed the

defendant driving in marked parking spaces, crossing the double

yellow line, swerving in the right lane, and nearly hitting a

telephone pole. The defendant had trouble finding her

registration and her eyes were bloodshot and glassy. The

2
officer smelled an odor of alcohol on her breath. She admitted

to having one drink that evening. The officer observed an open

bottle of Sam Adams in the driver's door and an open package of

Budweiser beer on the front passenger side of the car (though

the cans were not open).

The officer asked the defendant to follow his pen with just

her eyes, but she was unable to follow the instructions and

moved her head. The officer began explaining the nine-step

walk-and-turn field sobriety assessment. The defendant was

agitated and belligerent while she attempted to perform field

sobriety tests. The officer noticed that the defendant swayed,

was unsteady on her feet and, at one point, the officer had to

grab the defendant's arm to keep her from falling over. Once in

the police cruiser, the defendant banged against the cruiser

door. During the booking process, the defendant did not listen

to instructions. A second officer who was present for the

booking process testified to the defendant's belligerent

behavior, bloodshot eyes, slurred speech, and other signs of

intoxication.

This record is more than sufficient to support the jury's

finding. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385,

392-393 (2017) (Commonwealth presented sufficient proof where

jury heard evidence of classic signs of alcohol intoxication,

such as bloodshot and glassy eyes, odor of alcohol, slurred

3
speech, imbalance, inability to follow directions, difficulty

standing); Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 545

(2008) (evidence of driver's erratic driving, bloodshot eyes,

scent of alcohol, slurred speech, and unsteady gait, with

presence of empty alcohol containers in vehicle, sufficient to

support OUI conviction).

Nor did the Commonwealth's case deteriorate once the

defendant presented her case, which was limited to the testimony

of a friend, who testified that he left an empty Sam Adams beer

bottle in the defendant's driver's side door shortly before the

defendant was stopped. While the defendant's evidence could

have provided the jury with an alternate reason for the presence

of the beer bottle in the door, it did not show any of the

Commonwealth's evidence to be "incredible or conclusively

incorrect" and, as a result, did not deteriorate the

Commonwealth's proof. Commonwealth v. Gomez, 450 Mass. 704, 710

(2008), quoting Commonwealth v. O'Laughlin, 446 Mass. 188, 203

(2006). See Commonwealth v. Walter, 10 Mass. App. Ct. 255, 260-

261 (1980) (denial of renewed motion for required finding of not

guilty appropriate where defendant's evidence created a mere

conflict for jury to decide).

2. Closing argument. The defendant argues that the

prosecutor misstated the evidence in four respects. Because the

defendant objected at trial, we review for prejudicial error.

4
Commonwealth v. Wilson, 427 Mass. 336, 351 (1998). "In

determining whether an argument was improper we examine the

remarks 'in the context of the entire argument, and in light of

the judge's instructions to the jury and the evidence at

trial.'" Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005),

quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231

(1992).

The first two statements with which the defendant takes

issue were not misstatements. The testimony of the arresting

officer established that the defendant banged against the

cruiser door. It was reasonable for the prosecutor to argue

based on that testimony that the defendant kicked the cruiser

door. The prosecutor's statement that the defendant was

uncooperative during fingerprinting may have been imprecise

because officers testified that the defendant was uncooperative

during booking, but it was not error.

The Commonwealth concedes that the prosecutor made two

misstatements of fact in her closing argument. First, she

stated that both officers testified that the defendant was

slurring her words when only the second officer so testified.

Second, the prosecutor was incorrect in stating that the defense

witness testified that he did not typically drink Sam Adams. We

agree, however, that neither misstatement amounted to

prejudicial error. The defendant had admitted to having one

5
drink that evening so whether that drink was the open Sam Adams

in the driver's door is a collateral issue. Whether one officer

or both testified that the defendant's speech was slurred was an

isolated remark in the context of the entire argument. These

minor misstatements were "tempered by the repeated instructions

of the judge and the strong weight of the evidence presented

against [the defendant]." Commonwealth v. Maynard, 436 Mass.

558, 571 (2002). After defense counsel objected, the judge

instructed the jury that closing arguments were not evidence,

that the jury's memory of the testimony controlled, and the

Commonwealth bore the burden of proof. In the context of the

trial as a whole, we can say "with fair assurance . . . that the

judgment was not substantially swayed." Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v.

Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

3. Waiver of jury trial. In Ciummei v. Commonwealth, 378

Mass. 504, 509 (1979), the Supreme Judicial court "established a

bright-line rule . . . that to effectively waive [their] right

to a jury trial, a defendant must sign a written waiver form

pursuant to G. L. c. 263, § 6, and the trial judge must conduct

a colloquy to assure himself that the defendant's waiver was

voluntary, knowing, and intelligent." Dussault, 71 Mass. App.

Ct. at 547. While defense counsel acknowledged that the

defendant would be seeking a jury-waived trial on the subsequent

6
offense portion, the defendant never signed a written waiver

"nor did the trial judge conduct a colloquy to determine whether

the waiver was voluntary and intelligent." Id. at 548.3 As the

Commonwealth concedes, the judge's failure to adhere to the

procedures set out in Ciummei entitles the defendant to a new

trial on the elements tried before the judge.4

Conclusion. We affirm the judgment on the underlying

conviction of OUI, but so much of the judgment as found the

defendant guilty of a fourth offense is vacated and the finding

is set aside. The sentence on the OUI conviction is vacated,

3 The record indicates that the jury's verdict was taken by a
judge (second judge) who was not the judge who presided over the
jury verdict. The defendant objected to this second judge
presiding over the bifurcated portion of the trial. This second
judge conducted no colloquy but scheduled the subsequent offense
portion of the matter for trial on June 29, 2023. Neither party
informed the first judge that a colloquy had not been conducted.
4 The defendant further challenges the documentary evidence

underlying the subsequent offense finding. The defendant has
not included the challenged documents in the record, therefore
we need not -- and cannot -- reach this issue. See Commonwealth
v. Woody, 429 Mass. 95, 97 (1999) (listing cases recognizing
that failure of appellant to provide appellate court with
adequate record may preclude review); Roby v. Superintendent,
Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412
(2018) (generally, failure to provide adequate record "fatal" to
appeal). A review of the transcripts suggests that trial
counsel objected to the admissibility of certain registry of
motor vehicles records on the basis that they were stamped by
the registrar but did not contain a statement showing that an
authorized agent affixed the stamp. This argument is likely
unavailing, particularly where the evidence also included three
certified prior convictions, including an OUI third conviction.
See Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 172
(2010) (stamp of original signature of registrar sufficient for
attestation).

7
and the case is remanded for further proceedings consistent with

this memorandum and order.

So ordered.

By the Court (Henry,
D'Angelo & Hodgens, JJ.5),

Assistant Clerk

Entered: February 26, 2024.

5 The panelists are listed in order of seniority.

8