Commonwealth v. Randy S. White.

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-801

COMMONWEALTH

vs.

RANDY S. WHITE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bifurcated jury-waived trial in the District Court,

the defendant, Randy S. White, was found guilty of operating a

motor vehicle while under the influence (OUI) of a narcotic

drug, fourth offense, in violation of G. L. c. 90,

§ 24 (1) (a) (1), and OUI with a license that had been suspended

for OUI, in violation of G. L. c. 90, § 23. On appeal, he

argues that the Commonwealth failed to prove beyond a reasonable

doubt that he was under the influence of a narcotic drug, that

the judge improperly allowed a witness to testify as an expert,

that the defendant did not voluntarily and intelligently waive

his right to a jury trial, that the judge did not conduct a jury

waiver colloquy before the subsequent offender portion of the
trial, and that the admission of certain documentary evidence

violated his constitutional right to confront witnesses. We

affirm.

Background. On January 15, 2019, emergency personnel were

dispatched to Chestnut Street in Lynn for a medical emergency.

The fire department arrived on the scene first, followed moments

later by the police. At the scene, they found the defendant

seated in the driver's seat of a car "slumped behind the wheel."

The car was stopped on the wrong side of the street, blocking

traffic, with the engine running. There was no damage to the

car and it did not appear to have been in an accident.

Lieutenant Matthew Reddy, a twenty-five-year veteran of the Lynn

fire department, conducted an initial medical assessment of the

defendant. He noted that the defendant's eyes were "pinpoint"

and that he was in respiratory distress.1 Based on these

observations, which Reddy believed were symptoms of a potential

opiate overdose, Reddy administered Narcan to the defendant.

After receiving multiple doses of Narcan, the defendant

eventually regained consciousness and was taken to the hospital.

1 Reddy testified that he "could hear and notice the you
know, agonal breathing and the snores. It goes -- snoring
respiration, you can tell when their breathing drops are so
long, they start to snore. It's a common sign of anyone that's
in that type of respiratory distress."

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Discussion. 1. Evidence of the defendant's ingestion of

opiates. In reviewing the denial of a motion for a required

finding of not guilty, we must 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). Here, the Commonwealth

was required to prove "that the defendant (1) physically

operated a vehicle; (2) on a public way; (3) while under the

influence of a narcotic drug." Commonwealth v. Bouley, 93 Mass.

App. Ct. 709, 712 (2018). The defendant contests only the third

element. It was thus incumbent on the Commonwealth to show that

the use of a narcotic drug resulted in an "impairment, to any

degree, of [the defendant's] ability to safely perform the

activity in question." Commonwealth v. Veronneau, 90 Mass. App.

Ct. 477, 479 (2016).

The defendant argues that the Commonwealth did not meet its

burden of proof because it failed to "present evidence that the

unidentified opiate was a narcotic." As relevant here, a

"narcotic drug" is defined as "Opium and opiate, and any salt,

compound, derivative, or preparation of opium or opiate,"

including chemical equivalents. G. L. c. 94C, § 1. The

defendant relies on cases such as Commonwealth v. Green, 408

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Mass. 48 (1990), and Commonwealth v. Ferola, 72 Mass. App. Ct.

170 (2008), in which the Commonwealth presented evidence that

the defendant had ingested a specific drug but failed to present

evidence that the specific drug qualified as an opiate under

§ 1. These cases are inapposite, however, because the

Commonwealth presented direct evidence that the defendant was

under the influence of an opiate and opiates are, by definition,

narcotic drugs. See G. L. c. 94C, § 1. See also Green, supra

at 50 & n.3 (evidence would have been sufficient if substance at

issue, codeine, had been included within definition of "narcotic

drug").

"[T]he element of ingestion may be proved by circumstantial

evidence," provided that the evidence and the inferences drawn

therefrom are "of sufficient force to bring minds of ordinary

intelligence and sagacity to the persuasion of [guilt] beyond a

reasonable doubt." Commonwealth v. Reynolds, 67 Mass. App. Ct.

215, 218 (2006), quoting Latimore, 378 Mass. at 677. Reddy, a

certified emergency medical technician (EMT) with twenty-five

years of experience who regularly administered Narcan, testified

that the defendant exhibited the classic symptoms of an opiate

overdose. The defendant was resuscitated only after receiving

several doses of Narcan, which Reddy stated would have had no

effect on someone who was not suffering from an opiate overdose.

From this evidence, the judge could rationally infer that the

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defendant had ingested an opiate or opiates. See Bouley, 93

Mass. App. Ct. at 712. To the extent it is possible that other

medical conditions may have caused the defendant to lose

consciousness, the Latimore standard does not require the

Commonwealth to rule out every "reasonable hypothesis of

innocence" (citation omitted). Commonwealth v. Merola, 405

Mass. 529, 533 (1989). Because the evidence was sufficient to

prove that the defendant had ingested a narcotic drug, it was

unnecessary for the Commonwealth to corroborate this evidence

with an admission from the defendant or a notation in his

medical records. "The issue is not the comparative strength of

the evidence [to other like cases], but whether the evidence

here was sufficient to support a finding of [guilt beyond a

reasonable doubt]." Commonwealth v. Gentile, 437 Mass. 569, 576

(2002).

The defendant also argues that the Commonwealth failed to

connect his ingestion of a narcotic drug to the defendant's

alleged impairment. We disagree. In addition to the evidence

that the defendant had ingested opiates, the Commonwealth

presented evidence that the defendant was found "slumped behind

the wheel" of the driver's seat of a vehicle, with the engine

running, stopped on the wrong side of the street and blocking

traffic. Accordingly, the judge could reasonably infer that the

defendant's opiate use impaired his ability to operate the car

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safely. See Veronneau, 90 Mass. App. Ct. at 479. The evidence

of the defendant's guilt was sufficient.

2. Admissibility of expert testimony. The defendant

argues that the judge abused her discretion by allowing Reddy to

offer his opinion that the defendant was showing symptoms of an

opiate overdose and that Narcan is used exclusively for treating

opiate overdoses and would have no effect on other conditions.

The defendant argues for the first time on appeal that Reddy's

testimony failed to meet the five foundational requirements for

expert testimony.2 See Commonwealth v. Barbosa, 457 Mass. 773,

783 (2010), cert. denied, 563 U.S. 990 (2011); Mass. G. Evid.

§ 702 (2025). Whether we review under the substantial risk of a

miscarriage of justice standard or for prejudicial error makes

2 In pretrial discussions, trial counsel objected to Reddy
testifying as an expert primarily because of lack of notice. On
appeal, the defendant did not argue lack of notice in his
principal brief, and we need not address issues raised for the
first time in a reply brief. See Commonwealth v. Garcia, 94
Mass. App. Ct. 91, 104 (2018); Mass. R. A. P. 16 (c), as
appearing in 481 Mass. 1628 (2019). Defense counsel also voiced
objection to Reddy "giving conclusions and opinions," but the
judge instructed counsel to make his objections during the
course of Reddy's testimony and stated she would make rulings
"as we hear the testimony." During Reddy's testimony, counsel
objected only once, when Reddy testified that the defendant "was
under some sort of opiate." The judge instructed the prosecutor
to rephrase the question, and defense counsel did not object
when Reddy testified that he chose to administer Narcan because
the defendant's symptoms "showed to me that this was a potential
opiate overdose."

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no difference, however, as the judge did not abuse her

discretion in admitting Reddy's testimony.

"[D]eterminations as to the admissibility of evidence lie

'within the sound discretion of the trial judge,'" Commonwealth

v. Bins, 465 Mass. 348, 364 (2013), quoting Commonwealth v.

Jones, 464 Mass. 16, 19-20 (2012), an abuse of which "occurs

only where the judge makes '"a clear error of judgment in

weighing" the factors relevant to the decision . . . , such that

the decision falls outside the range of reasonable

alternatives.'" Commonwealth v. Keown, 478 Mass. 232, 242

(2017), cert. denied, 583 U.S. 1139 (2018), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"The judge is not required to hold a voir dire before

qualifying an expert, and the judge's determination may be

inferred from the record" (citation omitted). Commonwealth v.

Calderon, 65 Mass. App. Ct. 590, 593 (2006). It is not

necessary for a judge to expressly qualify an EMT as an expert,

"[a] judge may implicitly qualify an experienced, certified EMT

as an expert." Bouley, 93 Mass. App. Ct. at 714, quoting

Commonwealth v. Ruiz, 442 Mass. 826, 834 (2004).3 "The crucial

3 Likewise, to the extent the defendant suggests that the
judge was required to conduct a Daubert-Lanigan hearing on the
reliability of Reddy's methodology (personal observations),
because the defendant did not request a Daubert-Lanigan hearing
prior to trial, the issue is waived. See Commonwealth v.
Wilkerson, 486 Mass. 159, 172 (2020).

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issue, in determining whether a witness is qualified to give an

expert opinion, is whether the witness has sufficient education,

training, experience and familiarity with the subject matter of

the testimony" (quotations and citation omitted). Commonwealth

v. Richardson, 423 Mass. 180, 183 (1996). Reddy was a certified

EMT with twenty-four and one-half years of experience. He had

received extensive medical training, including how to treat

opiate overdoses with Narcan, and regularly responded to medical

calls where individuals were suspected of having overdosed on

opiates.

Furthermore, Reddy's testimony was not unfairly prejudicial

to the defendant as there was no danger that the judge would

forgo an "independent analysis of the facts and bow too readily

to the opinion of an expert or otherwise influential witness."

Bouley, 93 Mass. App. Ct. at 714, quoting Commonwealth v. Canty,

466 Mass. 535, 543 (2013). "[J]udges in jury-waived trials are

presumed to know and correctly apply the law," Commonwealth v.

Watkins, 63 Mass. App. Ct. 69, 75 (2005), and we assume that the

judge gave the appropriate weight to Reddy's testimony and

parsed the evidence to "rely only on that which [was]

admissible."4 Commonwealth v. Collado, 426 Mass. 675, 678-679

4 For this same reason, we conclude that there was no error
in the judge's decision to allow Reddy to testify as both a
percipient and expert witness. See Commonwealth v. Lowery, 487

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(1998). Accordingly, the judge acted within her discretion in

implicitly qualifying Reddy as an expert and allowing him to

offer an opinion about the likely cause of the defendant's

overdose and the effects of Narcan. See Bouley, 93 Mass. App.

Ct. at 714. See also Commonwealth v. Mahoney, 406 Mass. 843,

852 (1990) ("A judge has wide discretion in qualifying a witness

to offer an expert opinion on a particular question, and his

determination will not be upset on appeal if any reasonable

basis appears for it" [citation omitted]).

3. Sufficiency of the first jury waiver colloquy. The

defendant argues that the jury waiver colloquy before the trial

on the underlying offenses failed to establish the voluntariness

and intelligence of his waiver because the judge failed to

inquire if the defendant had conferred with counsel, failed to

inquire whether he was impaired, and coerced the defendant to

opt for a bench trial. "[T]o effectively waive his 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" (footnote omitted).

Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 547 (2008). No

Mass. 851, 871 (2021) ("A percipient . . . witness may also
testify as an expert witness, though care should be taken in
presenting such expert testimony").

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"rigid pattern" must be followed. Commonwealth v. Abreu, 391

Mass. 777, 779 (1984).

The judge began the colloquy by confirming that both the

defendant and his counsel had signed the written waiver form.

She asked the defendant his name and age, inquired into his

level of education, and then provided the "compendious reminder"

suggested in Ciummei v. Commonwealth, 378 Mass. 504, 510 (1979),

of what a jury trial entails. She asked the defendant if he

understood the rights he was giving up and if he was doing so

freely, willingly, and voluntarily; he responded affirmatively.

The judge concluded the colloquy by asking defense counsel and

the prosecutor if there were any more inquiries they wished her

to make.

The record provides sufficient evidence that the

defendant's waiver was voluntary and intelligent. The judge

could infer that counsel had discussed the jury trial waiver

with the defendant from the fact that both had signed the form;

"it was not necessary for the judge specifically to inquire

whether the defendant had discussed the waiver with his

counsel." Commonwealth v. Hardy, 427 Mass. 379, 383-384 (1998).

Nor was the colloquy deficient because the judge did not

directly question the defendant about any mental illness,

potential intoxication, or other medical condition that may have

impaired his decision-making abilities. See Abreau, 391 Mass.

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at 779 (omission of specific inquiries suggested in Ciummei "not

enough to make the colloquy inadequate"). The judge was

entitled to consider the defendant's demeanor during the

colloquy to conclude that he was not impaired. See Hardy, supra

at 383. Significantly, the defendant does not claim that he was

either impaired by mental illness or intoxicated at the time of

trial. See Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 905

(1998). Finally, the judge's statements regarding the

availability of jury trials, which had been suspended during the

COVID-19 pandemic and were just again restarting, were merely

factual and not coercive. Indeed, although the judge said she

could not guarantee a jury trial by a certain date, her comments

implied that jury trials would soon be available.5

4. Sufficiency of the second jury waiver colloquy. The

March 2, 2021, trial transcript is missing the jury waiver

colloquy that was conducted prior to the subsequent offense

portion of the trial. Upon the Commonwealth's motion under

Mass. R. A. P. 8 (e), as appearing in 481 Mass. 1611 (2019), the

5 To the extent the defendant argues that the colloquy was
deficient because the judge failed to include the word
"constitutional" when explaining the right to a jury trial, the
claim is made without reference to legal authority and does not
rise to the level of appellate argument. See Mass. R. A. P.
16 (a) (9) (A); Cameron v. Carelli, 39 Mass. App. Ct. 81, 85–86
(1995). In any event, where the judge described the substance
of the defendant's right to a jury trial in great detail, we see
no reason why a further explanation of the source of that right
is necessary for the waiver to be intelligently made.

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judge reconstructed the record and found that she had conducted

the colloquy and had accepted the defendant's waiver as knowing

and voluntary. The judge followed the proper procedure and

permissibly relied on her customary practices. See Commonwealth

v. Quinones, 414 Mass. 423, 432 (1993); Commonwealth v. Flint,

81 Mass. App. Ct. 794, 800-802 (2012). Moreover, the record

contains a written waiver signed by the defendant and his

counsel on March 2. See Commonwealth v. Johnson, 79 Mass. App.

Ct. 903, 904 (2011), quoting Commonwealth v. Osborne, 445 Mass.

776, 781 (2006) (written waiver "particularly meaningful because

it 'create[s] a moment of pause and reflection on the part of

the defendant that is concomitant with signing one's name to a

formal declaration relinquishing that right'"). And tellingly,

just before the missing part of the transcript, the judge

stated, "There is a requirement that I do a separate colloquy

with the defendant, a separate written waiver of jury, if he

chooses to waive a jury. So I think we should take that up."

Defense counsel agreed, but asked for a ten minute recess. "The

judge's findings in reconstructing the record are supported by

the evidence and not clearly erroneous." Flint, supra at 804.

See also Commonwealth v. Aboulaz, 44 Mass. App. Ct. 144, 146

(1998) ("In reviewing the order allowing the Commonwealth's

motion to correct the record, we are guided by the principle

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that the decision of the trial judge under rule [8] [e] is

usually conclusive" [quotation and citation omitted]).

5. Admission of documentary evidence. We agree with the

defendant that the second paragraph of the affidavit from the

Registrar of Motor Vehicles, authenticating the Registry of

Motor Vehicle (RMV) records and stating that the defendant's

license had not been reinstated, contained testimonial hearsay.

However, the defendant was not prejudiced, because the judge did

not rely on the Registrar's statement in finding that the

defendant drove while his license was suspended and had not been

reinstated. Rather, the judge stated that she relied

exclusively on (1) a letter mailed on December 24, 2018,

informing the defendant that his license would be suspended for

730 days because of prior OUIs, effective as of January 3, 2019

(twelve days before this incident occurred); (2) a certified

court record dated December 21, 2018, showing an eight-year loss

of license; and (3) conditions of probation, signed by the

defendant that same day, which reflected an eight-year loss of

license.

The defendant is incorrect, however, in asserting that the

mailing confirmation records are testimonial hearsay. See

Commonwealth v. Royal, 89 Mass. App. Ct. 168, 174 (2016). Nor

did the admission of court records, such as the docket sheet,

plea sheet, and probation conditions, which were created for

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administrative purposes and not as a substitute for trial

testimony, violate the rules against hearsay or the

confrontation clause. See Commonwealth v. Ellis, 79 Mass. App.

Ct. 330, 332-333 (2011); Commonwealth v. Weeks, 77 Mass. App. Ct

1, 5-8 (2010); Mass. G. Evid. § 803(6)(A).6

Judgments affirmed.

By the Court (Massing,
Henry & Hodgens, JJ.7),

Clerk

Entered: August 15, 2025.

6 The defendant's argument that the RMV documents were not
properly authenticated is unsupported by legal authority or
citations to the record and does not rise to the level of
appellate argument. In any event, nothing in the record
suggests that the RMV documents on which the trial judge relied
were not among the "annexed instrument(s)" duly authenticated by
the Registrar's certification. See Commonwealth v. Shaw, 105
Mass. App. Ct. 680, 684 (2025); G. L. c. 233, § 76.

7 The panelists are listed in order of seniority.

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