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19-P-602                                            Appeals Court

                COMMONWEALTH   vs.   STEVEN K. PROIA.


                           No. 19-P-602.

           Norfolk.     April 15, 2020. - July 27, 2020.

             Present:   Rubin, Blake, & Wendlandt, JJ.


Motor Vehicle, Operating under the influence, License to
     operate. Alcoholic Liquors, Motor vehicle. Evidence,
     Intoxication, Best and secondary. Practice, Criminal,
     Instructions to jury, Required finding, Mistrial.



     Complaint received and sworn to in the Wrentham Division of
the District Court Department on January 12, 2015.

     The case was tried before Thomas L. Finigan, J., and
postconviction motions were heard by him.


     The case was submitted on briefs.
     Richard J. Dyer for the defendant.
     Laura A. McLaughlin, Assistant District Attorney, for the
Commonwealth.


    RUBIN, J.   The defendant was convicted after a jury trial

of operating under the influence of alcohol, third offense,

G. L. c. 90, § 24 (1) (a) (1); leaving the scene after causing

property damage, G. L. c. 90, § 24 (2) (a); and negligent
                                                                      2


operation of a motor vehicle, G. L. c. 90, § 24 (2) (a).

Viewing the evidence in the light most favorable to the

Commonwealth, the jury could have found the following facts:

On January 11, 2015, at about 7:30 P.M., State Trooper

Christopher Booth, responding to an accident on Route 495 south

in Franklin, observed a sport utility vehicle (SUV) with

extensive damage, and a family of six standing on the side of

the highway.   The driver of the SUV, his fiancée, and four

children had been driving home to Connecticut after a day of

skiing in New Hampshire.   The driver of the SUV testified that

while driving southbound on Route 495, he observed a black sedan

approach his SUV from behind at a high rate of speed, which he

estimated to be in excess of one hundred miles per hour.      The

black sedan struck the rear of the SUV and the two vehicles

became attached, as the passenger's side fender of the black

sedan went underneath the driver's side wheel well of the SUV.

After four to five seconds, the vehicles separated.    The black

sedan veered into the center median of Route 495.     The driver of

the SUV regained control and pulled off the road.     The black

sedan drove across the center median, across the travel lanes of

Route 495 north, and onto the ramp for exit sixteen.    There was

a loud screeching sound and sparks radiating from the black

sedan as it left the highway.
                                                                     3


    About one-half mile from exit sixteen, Franklin police

officers located a black Mercedes sedan parked on the side of a

local road, in a snowbank, partially blocking the travel lane,

with extensive damage to the front end, passenger side, and

windshield.   There was no operator, nor anyone else, present at

the scene.    The front airbags had deployed and there were "red

brown stains" on the driver's side airbag, consistent with

blood.   After arriving at the scene, Trooper Booth determined

that the black Mercedes was registered to the defendant.

Trooper Booth found the defendant's driver's license on the

floor of the Mercedes.

    Franklin police officers located the defendant about one-

half mile from the abandoned Mercedes, in the parking lot

outside Cole's Tavern (tavern) in Franklin.    Trooper Booth met

them there.   The defendant had a bleeding laceration on his

head, lacerations to his hands, "red brown stains" on his hands

and pants, and soaking wet pants and shoes, consistent with

having walked through snow.    The officers detected a strong odor

of alcohol on the defendant's breath, and noticed his eyes were

bloodshot and his speech slurred.   The defendant identified

himself, but had no identification on him.    He was disoriented

as to his location.    Trooper Booth also testified that he

observed the defendant to be "unbalanced" and "swaying side to

side."   The defendant told Trooper Booth in response to
                                                                     4


questions that a friend had dropped him off at the tavern.      He

denied driving.

    Discussion.    On appeal, the defendant argues first that

motions for a required judgment of not guilty should have been

allowed.   The defendant moved timely for required findings of

not guilty on all charges at the end of the Commonwealth's case,

when he rested, and upon filing a postdischarge motion for a

required finding of not guilty.   We review for sufficiency of

the evidence under the well-known standard of Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), asking whether, after

viewing the evidence and all reasonable inferences drawn

therefrom 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.

    The defendant argues that there was insufficient evidence

to support a finding of guilty beyond a reasonable doubt both of

operation of the Mercedes and of the defendant's impairment.

    As to operation, the evidence was sufficient.    The jury

could clearly have found that the Mercedes, registered to the

defendant, was operated on the night in question.   They could

have found that it was involved in an extremely serious accident

and was found in a snowbank, severely damaged, with the

defendant's driver's license on its floor, the airbags deployed,

and blood stains on the driver's side airbag.   The jury could
                                                                    5


have found the defendant was located outside a nearby tavern a

mere thirty minutes after the call first came in to the police

about the accident.   His pants and shoes were wet as though he

had been walking through snow, and he had lacerations on his

hands and head consistent with having been in an accident and

that might have left bloodstains on the driver's side airbag

that deployed in a car that he was driving, as were found in the

Mercedes.   He had no identification on him.    Although

circumstantial, this evidence suffices to support the jury's

finding on operation.   It is far more evidence of operation than

what was found insufficient in Commonwealth v. Shea, 324 Mass.

710 (1949), upon which the defendant relies.1




     1 In Shea, 324 Mass. at 712, the defendant's wife's car was
found abandoned in Ayer one and three-quarter miles from the
location at which it had been involved in an accident. As in
this case, no percipient witness could identify who was
operating the vehicle at the time of the accident, but there was
testimony that a Westford police officer saw someone else
driving the vehicle two hours and forty-five minutes before the
accident. Id. About fifteen minutes after the accident, from a
house 300 feet away from the abandoned vehicle and located on a
chicken farm, the defendant called the owner of a garage and
asked him to tow the vehicle, which the defendant described as
having "konked out." Id. An hour after that, the defendant
went to the house of a taxi driver and asked for a ride home.
Id. When the taxi with the defendant inside was stopped by the
police, "the defendant was very wet and he had chicken feathers
on his trousers." Id.

     The Supreme Judicial Court concluded that "the evidence
. . . 'tends equally to sustain either of two inconsistent
propositions [the guilt or innocence of the defendant] . . . .'"
Shea, 324 Mass. at 713, quoting Smith v. First Nat'l Bank, 99
                                                                    6


    As to impairment, "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."   Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352

(2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173

(1985).    Here, there was testimony from which the jurors could

have inferred that the defendant was intoxicated when found

outside the tavern shortly after the accident.   The way in which

the Mercedes was left, halfway in a snowbank and sticking out

into the travel lane of a road, indeed the way it was operated




Mass. 605, 612 (1868). As the Supreme Judicial Court
subsequently explained,

    "Our holding in the Shea case . . . was based on the
    fact that the Commonwealth failed to introduce any
    evidence placing the defendant in the hit-and-run
    vehicle on the date of the offence either before or
    after the accident. Moreover, there was evidence in
    that case that another unknown person had been seen
    operating the vehicle less than three hours before the
    accident. This court concluded that '". . . [a] careful
    examination of the record discloses nothing more than
    speculation, conjecture or surmise upon which such a
    [guilty] finding could be based. This is insufficient
    to sustain the burden resting upon the Commonwealth."
    Commonwealth v. Albert, 310 Mass. 811, 816-817 [1942].'
    [Shea, supra at 714]."

Commonwealth v. Rand, 363 Mass. 554, 561 (1973). Here, by
contrast, there is circumstantial evidence beyond what was
present in Shea supporting an inference that the defendant was
in the driver's seat operating the vehicle, including that it
was the defendant's own car, the defendant's driver's license
was found in the car, there were lacerations on the defendant,
and there were "red brown stains" on the driver's side airbag.
                                                                    7


on Route 495, when combined with the evidence of intoxication

further supports an inference that might reasonably have been

drawn by the jurors, that the defendant was impaired by reason

of his consumption of alcohol in his ability to operate the

Mercedes at the time he drove it.   The evidence on that element

thus suffices as well.

    The defendant next argues that he is entitled to a new

trial because, when describing at trial his interaction with the

defendant in the tavern's parking lot, Trooper Booth testified

that "I asked him if he -- he wanted to do field sobriety

testing based on my observations.   He stated no --."

    There was an objection, which was sustained.    This

testimony was, of course error, see Commonwealth v. McGrail, 419

Mass. 774, 779-780 (1995), and indeed, the judge had allowed the

defendant's motion in limine to exclude any evidence of refusal

to take field sobriety tests.   The prosecutor represented to the

judge that he had specifically instructed the witness not to

mention field sobriety tests, and it is a fair (although not

proven) inference therefore that this was a deliberate violation

by the witness of the judge's order.

    The defendant moved for a mistrial.   This motion was denied

by the judge, who instead provided a curative instruction.     On

appeal, the defendant renews his argument that this testimony

required a mistrial.
                                                                    8


    The decision whether to allow a motion for mistrial rests

in the sound discretion of the trial judge.    See Commonwealth v.

Amran, 471 Mass. 354, 359 (2015).   Although the testimony was

clearly in error, and may even have amounted to deliberate

misconduct –- something we need not decide -– we think that, in

light of the curative instruction given by the judge, he was

within his discretion to deny the defendant's motion.     The

curative instruction was strong.    It included the following

language:   "So you must act as if you -- I instruct you that you

cannot give that any consideration whatsoever when you

deliberate, and you must act as if you never heard that

testimony. . . .   It would be unfair to the defendant for you to

consider it or to allow it to affect your deliberations.    You

should disregard it in its entirety."

    In addition to then listing many reasons why someone might

refuse to submit to a field sobriety test, by agreement of the

parties he added, "But in this particular case, the parties

stipulate that -- that the defendant, when asked by Trooper

Booth to perform field sobriety tests, he refused because he

maintained he was not driving the vehicle, which of course makes

sense for the -- when you think about it in those terms."

    The defendant's agreement to the curative instruction,

after his mistrial motion was denied, of course does not waive

his right to appeal from the judge's determination to deny the
                                                                      9


motion for a mistrial and instead give this curative

instruction.     But we think that, given the strength of the

curative instruction, the risk of prejudice from the error was

sufficiently addressed that a mistrial was not required as a

matter of law.

    Finally, the defendant argues that the admission of the

trooper's testimony that the driver's license found in the

Mercedes had the defendant's name on it was not admissible.

    The defendant argues first, as he did when he objected to

the admission of this testimony at trial, that the name on the

license was inadmissible hearsay.    The license however was not

admitted for the truth of anything it said.    Rather, the trooper

was testifying to the fact that he observed a driver's license

with the defendant's name on it.     Even assuming that a name on a

driver's license amounts to a statement by the registry of motor

vehicles that that person is licensed to drive, the evidence of

what the license said in this case was not admitted for the

truth of that matter, but to show that a driver's license that

said the defendant's name, and thus might have been expected to

be in his possession, had been found at the time in question on

the floor of the Mercedes.

    Before us the defendant also argues that the admission of

this testimony violated the best evidence rule.    At trial,

defense counsel did object that the license itself was not
                                                                  10


introduced as evidence, but he never mentioned the best evidence

rule, which "deprived the Commonwealth of the opportunity to

produce the original writing, or show a sufficient excuse for

its nonproduction" (citation and quotation omitted).

Commonwealth v. Alvarez, 480 Mass. 1017, 1019 n.4 (2018).

Accord Bendelow v. United States, 418 F.2d 42, 47 (5th Cir.

1969), cert. denied, 400 U.S. 967 (1970) ("pursuit of the matter

by voir dire for the purpose of objection would doubtless have

disclosed whether the [t]rooper had retained the [driver's

license] and could produce it, whether representatives of the

prosecution had custody of it, or whether it was returned to the

defendant and was thus protected from coerced production by him

under the Fifth Amendment [to the United States Constitution].

We are left to speculation as to the result of such an

evidentiary excursion").

    Even had the objection been preserved properly, whether the

best evidence rule applies to a driver's license in

circumstances like this appears to be an open question, although

the name on the license would seem to fall within the definition

of the contents of a writing.   There are some nineteenth-century

cases which, if still binding, might have bearing on the

question.   Thus, in Commonwealth v. Blood, 11 Gray 74, 77

(1858), the Supreme Judicial Court concluded that testimony by a

witness that he had been in the defendant's house and had seen
                                                                      11


jugs with labels on them that said "rye whiskey," did not

violate the best evidence rule.     The court said, "The labels on

the jugs do not come within any class of written instruments,

the contents of which cannot be proved without producing the

original paper or document, or accounting for its loss or

unavoidable absence."   Id.    Likewise, in Commonwealth v. Brown,

124 Mass. 318, 319 (1878), the Supreme Judicial Court held that

the writing observed by the witness on a license hanging on the

wall of a liquor dealer's shop might be testified to orally.

    In any event, we need not and do not reach the question.

Even assuming what we do not decide, that the best evidence rule

applies and was violated, because the claim of error was not

adequately preserved we would reverse only if the defendant has

shown a substantial risk of a miscarriage of justice.      The

purpose of the best evidence rule is "'to assure the trier of

the fact of having the most direct and reliable evidence

possible of the contents of a writing . . . .'     Maguire,

Evidence:   Common Sense and Common Law, pages 229-230."      Fauci

v. Mulready, 337 Mass. 532, 541 (1958).     But on all the facts

and circumstances of this case, the risk of erroneous

recollection is very low.     Contemporaneous with finding the

license, Trooper Booth discovered that the defendant, Steven

Proia, was the registered owner of the Mercedes.     Indeed, he

testified that when he entered the Mercedes he found the license
                                                                  12


of "the registered owner, Mr. Proia," and that the name on the

license read "Steven Proia."   Within minutes he was called to

the tavern, where local police had found someone matching the

description on the license, and where he met the defendant.      The

likelihood is low in these circumstances that his recollection

of the name on the license is unreliable.   Thus, "[e]ven if the

best evidence rule applied here, we cannot say that any

potential violation created a substantial risk of a miscarriage

of justice."   Alvarez, 480 Mass. at 1019 n.4.

                                   Judgments affirmed.
