Commonwealth v. Randy J. Demello.

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-205

COMMONWEALTH

vs.

RANDY J. DEMELLO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction, after a bench

trial, of operating a motor vehicle while under the influence of

intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1). He raises

two arguments on appeal. First, he contends that the complaint

should have been dismissed because the complaint application did

not establish probable cause to believe that he was under the

influence of alcohol. Second, the defendant argues that there

was insufficient evidence at trial to prove the same point

beyond a reasonable doubt. We affirm.

Motion to dismiss for lack of probable cause. "A motion to

dismiss for lack of probable cause 'is decided from the four

corners of the complaint application, without evidentiary

hearing.'" Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190

(2016), quoting Commonwealth v. Humberto H., 466 Mass. 562, 565
(2013). We view the information in the complaint application in

the light most favorable to the Commonwealth to determine

whether it supports probable cause as to each essential element

of the offense. See Commonwealth v. Ricardi, 99 Mass. App. Ct.

496, 498 (2021).

Taken in the required light, the criminal complaint

established the following. At 2:30 A.M. on a Friday night in

July 2022, the defendant was slumped unconscious over the

driving wheel of his car. The car was in the northbound lane on

Route 79 and, although it was not moving, the engine was

running, and the transmission had not been placed in park. The

windows were down. When police approached the car, the

defendant was unresponsive and difficult to rouse. Eventually

an officer was able to wake him by shaking him and yelling at

him, at which point the defendant took his foot off the brake

pedal and the car began to move forward. In response to the

officer's repeated loud and urgent instructions to "Put the car

in park! Put the car in park!" the defendant said "Dude it is

in park" as the car continued to roll forward. The defendant's

speech was "very slurred," he blended his words together, and he

was "extremely unsteady on his feet." When he was asked to get

out of the car, the defendant had difficulty walking; he also

had bloodshot and glossy eyes. The defendant denied having any

medical problems, and reported that he took medication only for

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his heart. The officer placed the defendant under arrest for

operating while under the influence of alcohol. 1

On appeal, the defendant argues that this constellation of

facts failed to establish probable cause to believe that he was

under the influence of alcohol when operating his car. We

disagree. The defendant was found passed out in his car in the

travel lane of a numbered route with the engine still running.

He demonstrated impaired comprehension of the officer's

questions, and failed to comply with the officer's urgent

instructions to put the transmission in park. He responded to

the officer in an unusually convivial way, and his speech was

slurred. The defendant was unsteady on his feet when he got out

of the car. He also had bloodshot and glossy eyes. See

Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390-391 (2017)

(bloodshot and glassy eyes, slurred speech, among other things);

Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354 (2015)

(manner of driving, among other things); Commonwealth v.

1 The complaint application also established that the defendant
declined to take field sobriety tests and that he refused to
take a breathalyzer test at the station after his arrest.
Although the defendant's refusals would be inadmissible at
trial, see Commonwealth v. Blais, 428 Mass. 294, 299 & n.3
(1998); G. L. c. 90, § 24 (1) (e), probable cause may be
established by information that would not be admissible at
trial. See Commonwealth v. Stoico, 45 Mass. App. Ct. 559, 565
(1998). In any event, probable cause was established on the
face of the complaint application even setting aside the refusal
evidence.

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Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (poor balance,

among other things). The defendant had no medical condition to

explain this set of facts, nor was he on any medication that

would have caused them. Although it is true that there is no

mention of an odor of alcohol in the car, the windows of the car

were down when police arrived. In any event, the clerk-

magistrate could rely on the officer's decision to arrest the

defendant for operating while under the influence of alcohol as

a reflection of the officer's lay conclusion as to the cause of

the defendant's condition. See Commonwealth v. Canty, 466 Mass.

535, 544 (2013).

Sufficiency of evidence at trial. In addition to the

information we have described above, the trial evidence, viewed

under the Latimore standard, Commonwealth v. Latimore, 378 Mass.

671, 677 (1979), permitted the judge to find that the defendant

had difficulty walking to the back of his car when asked to do

so by police. The judge could also make a conclusion as to the

defendant's intoxication from alcohol based on his own viewing

of the videotapes that were introduced in evidence. Because

"[t]he 'effects of liquor upon the minds and actions of men are

well known to everybody,'" Commonwealth v. Wall, 469 Mass. 652,

671 (2014), quoting Commonwealth v. Taylor, 263 Mass. 356, 362

(1928), we allow the trier of fact to use his or her common

sense and experience to determine whether a person is

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intoxicated by alcohol. See Commonwealth v. Sands, 424 Mass.

184, 188 (1997) ("[a] lay juror understands that intoxication

leads to diminished balance, coordination, and mental acuity

from experience and knowledge"); Instruction 5.310 of the

Criminal Model Jury Instructions for Use in the District Court

(2023) ("You may rely on your experience and common sense about

the effects of alcohol"). 2 The judge found that the videotapes

showed not only the defendant's unsteadiness, but also his

inability "to follow the simple instructions of the officer to

put [his] hands behind [his] back." 3

In addition, the officer testified that he formed an

opinion as to the defendant's "sobriety," namely, that the

defendant was "intoxicated." "[A]n opinion regarding a

defendant's sobriety is a lay opinion, not an expert opinion,"

and is admissible because "it lies within the realm of common

experience." Canty, 466 Mass. at 541. For this reason, an

officer may testify, as a lay witness, regarding his opinion as

to a person's intoxication based on the officer's observations

of the person's "appearance, manner, and conduct (e.g.,

2 The judge is presumed to have instructed himself correctly on
the law. See Commonwealth v. Armstrong, 54 Mass. App. Ct. 594,
598 (2002).
3 We have obtained the roadside videotape on our own initiative

from the trial court, and our independent review of it leads us
to conclude that the judge's findings regarding what it showed
were not clearly erroneous.

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bloodshot eyes, slurred speech, and unsteady gait)," because the

principal, objective symptoms of intoxication are so well known.

Id. Both "sobriety" and "intoxication" are commonly understood

to refer to alcohol usage, and the judge as the trier of fact

could accept them as such, especially when combined with the

judge's observations of the defendant in the videotapes and the

other circumstances that indicated the defendant was under the

influence of alcohol. In short, the evidence was sufficient to

allow the judge to conclude beyond a reasonable doubt that the

defendant was operating while under the influence of alcohol.

Judgment affirmed.

By the Court (Vuono,
Wolohojian & Toone, JJ. 4),

Assistant Clerk

Entered: March 6, 2024.

4 The panelists are listed in order of seniority.

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