Commonwealth v. Kevin F. McAndrew.

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-853

COMMONWEALTH

vs.

KEVIN F. MCANDREW.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

defendant, Kevin McAndrew, guilty of operating a motor vehicle

while under the influence of intoxicating liquor (OUI) in

violation of G. L. c. 90, § 24 (1) (a) (1). Thereafter, in a

jury-waived trial, a judge found the defendant guilty of a third

offense OUI. He appeals the underlying conviction by

challenging the sufficiency of the evidence and claiming, for

the first time, that certain testimony should not have been

admitted. We affirm.

Background. Prior to trial, defense counsel noted his

objection to hearsay contained in a police report. The judge

concluded, "The police officer could indicate that that person
pointed out a car. The police officer will not be allowed to

testify as to what the particular witness said to him about that

witness's observations of the person."

Evidence at trial showed that on March 24, 2019, at

approximately 5:15 P.M., a woman in a convenience store parking

lot pointed out the defendant's vehicle to Pembroke police

Sergeant Paul Joudrey. Joudrey followed the vehicle through

residential streets as it traveled well above the thirty mile

per hour speed limit. Joudrey stopped the vehicle, walked up to

the driver's side, obtained the defendant's license and

registration, and spoke to the defendant, who asked why he had

been stopped. Joudrey replied to the defendant that he stopped

him because of his speed and because "his vehicle had been

pointed out." He smelled an odor of an alcoholic beverage on

the defendant's breath and observed the defendant's glassy and

bloodshot eyes and his slow and slurred speech.

The defendant then failed a series of field sobriety tests.

While still seated in the vehicle, the defendant missed a letter

when reciting the alphabet and did not follow instructions

regarding a "finger-touch technique" that involves touching the

thumb to each finger while counting. Joudrey asked him to get

out of the vehicle and watched as he walked slowly and appeared

unsteady on his feet. At Joudrey's request, the defendant

repeated both field sobriety tests. The defendant said the

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alphabet "completely out of order" and failed to touch his thumb

to his fingers in sequence.

Discussion. 1. Sufficiency of evidence. When reviewing

the sufficiency of evidence, we consider "whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

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

Virginia, 443 U.S. 307, 318-319 (1979). To prove the charged

crime, the Commonwealth had to prove beyond a reasonable doubt

that the defendant "(1) . . . operated a [motor] vehicle, (2) on

a public way . . ., and (3) . . . was impaired by the influence

of intoxicating liquor." Commonwealth v. Faherty, 93 Mass. App.

Ct. 129, 133-134 (2018), quoting Commonwealth v. AdonSoto, 475

Mass. 497, 509 (2016).

Here, the defendant challenges only the sufficiency of the

evidence pertaining to the third element. "[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., quoting

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Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Impairment

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).

Joudrey's testimony provided ample evidence that the

defendant was under the influence of alcohol: he sped through a

residential neighborhood, had the odor of an alcoholic beverage

on his breath, presented with glassy and bloodshot eyes,

exhibited slurred and slow speech, walked slowly, appeared

unsteady on his feet, and twice failed two field sobriety tests.

See Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353-354

(2015) (sufficient evidence of impairment where driver speeding,

exhibited moderate odor of alcohol, and had bloodshot and glassy

eyes); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507

(2011) (noting obvious signs of impairment where defendant had,

among other indicators, "strong odor of alcohol, poor balance,

and glassy, bloodshot eyes"); Commonwealth v. Rollins, 59 Mass.

App. Ct. 911, 912 (2003), S.C. 441 Mass. 114 (2004) (inability

to perform field sobriety tests is evidence of impairment).

Jurors could also consider Joudrey's opinion "[t]hat he was

intoxicated by liquor." See Sudderth, 37 Mass. App. Ct. at 321

(officer's opinion on intoxication "may also be taken into

account" when evaluating sufficiency of evidence). Viewing the

evidence in a light most favorable to the Commonwealth,

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Latimore, 378 Mass. at 677, jurors could readily conclude that

the defendant's consumption of alcohol diminished his "ability

to operate a motor vehicle safely." Connolly, 394 Mass. at 173.

2. Testimony about bystander. Prior to trial, the judge

excluded hearsay statements of a bystander who directed Joudrey

to the defendant's vehicle. The hearsay statements were not

admitted, but the defendant now claims, for the first time, that

Joudrey's mere reference to the bystander directing him to the

vehicle constituted inadmissible hearsay. We discern no error

and no "substantial risk of a miscarriage of justice."

Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

While it is true that nonverbal conduct such as pointing

may sometimes constitute an assertion, the pointing here "was

not offered to prove the truth of any implied assertion."

Commonwealth v. Beaz, 69 Mass. App. Ct. 500, 502 (2007).

Instead, evidence of the bystander pointing to the defendant's

vehicle was properly admitted to show "the state of police

knowledge which impelled the approach to the defendant."

Commonwealth v. Miller, 361 Mass. 644, 659 (1972). On direct

examination, Joudrey made two innocuous references to the

bystander. He testified that the bystander "pointed out a

vehicle" to him, and he further testified that he responded to

the defendant's question about why he was stopped by saying,

"his vehicle had been pointed out" and he was speeding. This

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testimony was entirely consistent with the judge's pretrial

order and did not constitute hearsay. "[A]n arresting or

investigating officer should not be put in the false position of

seeming just to have happened upon the scene; he should be

allowed some explanation of his presence and conduct."

Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting

McCormick, Evidence § 249, at 734 (3d ed. 1984). During cross-

examination, Joudrey's third reference to the bystander

"pointing the vehicle out" did not add any new information and

simply summarized the sequence of events that ultimately led him

to conclude the defendant was under the influence. At no time

did Joudrey reveal the content of the bystander's statements to

him.

Even if Joudrey's testimony could be read to imply, as the

defendant maintains, that the bystander may have made a

statement that the defendant "was drunk," we are satisfied that

the judge's jury instructions obviated any risk of a miscarriage

of justice. The judge specifically instructed jurors that they

must "decide what the facts are solely from the evidence

admitted in this case, and that would include the testimony of

the witness." The judge further instructed that jurors could

draw inferences "only from facts that have been proven to you."

Given these instructions and the absence of any evidence about

the content of the bystander's statement, jurors were not

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permitted to speculate about what the bystander may have said.

We also note that the prosecutor's closing did not make any

reference, by implication or otherwise, to the content of the

bystander's statement.

3. Ineffective assistance of counsel. Finally, we reject

the defendant's claim that his lawyer provided ineffective

assistance of counsel. To prevail, the defendant must show that

trial counsel's conduct "fell 'measurably below that which might

be expected from an ordinary fallible lawyer,' and that the

performance inadequacy 'likely deprived the defendant of an

otherwise available, substantial ground of defence.'"

Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). For the

reasons we have previously discussed, the evidence was

sufficient to convict the defendant. Accordingly, trial

counsel's failure to move for a required finding of not guilty

did not amount to ineffective assistance of counsel. See

Commonwealth v. Costa, 407 Mass. 216, 224 n.9 (1990) (counsel

not ineffective for failing to file required finding motion

where motion would have been denied). Regarding the claim

related to the bystander, because we concluded that evidence of

the bystander pointing did not result in a substantial risk of a

miscarriage of justice, the defendant "cannot prevail" on an

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ineffectiveness assistance claim "on the same issue[]." Cohen,

412 Mass. at 389.

Judgment affirmed.

By the Court (Blake, Walsh &
Hodgens, JJ.1),

Clerk

Entered: November 21, 2024.

1 The panelists are listed in order of seniority.

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