Commonwealth v. Belliveau

Kafker, J. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol (OUI), fifth offense, in violation of G. L. c. 90, § 24(l)(a)(l), as amended through St. 2003, c. 28, §§ 1, 2. — 831 — On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts. Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and is accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, “Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.” Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were “usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.” A police officer also testified that “[t]he section that [the] defendant’s car was on would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,” and subsequently added that “[t]he public can be there, sir, yes. — 832 — Pedestrians go down there, there’s ships that go off there to shuttle things, but [it’s] pedestrian foot traffic —.” Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was “pretty unsteady on his feet,” slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck’s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place “upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.” G. L. c. 90, § 24(l)(o)(l). “Way” is further defined by statute to include “any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.” G. L. c. 90, § 1. This element has been further interpreted by the Supreme Judicial Court to require that the “public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.” See Commonwealth v. George, 406 Mass. 635, 637 (1990), citing Commonwealth v. Endicott, 17 Mass. App. Ct. 1025, 1026 (1984) (Brown J., concurring). Moreover, “it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.” Commonwealth v. Kiss, 59 Mass. App. Ct. 247, 249-250 (2003). See Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549 (1996). In making that determination, we look to see if the “physical circumstances of the way are such that members of the public may reasonably conclude that it is — 833 — open for travel . . . .” Commonwealth v. Hart, 26 Mass. App. Ct. 235, 238 (1988). Commonwealth v. Kiss, 59 Mass. App. Ct. at 250. “Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.” Commonwealth v. Smithson, 41 Mass. App. Ct. at 549-550. See Commonwealth v. Stoddard, 74 Mass. App. Ct. 179, 182 (2009); Commonwealth v. Colby, 23 Mass. App. Ct. 1008, 1010 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639 (barriers and sign saying, “[N]o cars beyond this point”); Commonwealth v. Stoddard, 74 Mass. App. Ct. at 183 (“presence of a gate severely restricting general access to the campground is of great significance”). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass. App. Ct. 899, 900 (1980). The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property “to provide access and egress to the general public foot or vehicle” (emphasis supplied), testimony that “[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,” and testimony regarding the presence on the pier of the Courageous Sailing Center, “a nonprofit organization that provides sailing opportunities to the youth of Boston,” which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the pier was public and a way — 834 — and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, a case in which the defendant was arrested while drinking and driving on a school baseball field, “our prior cases assume, without discussion, that the term ‘access,’ as it appears in § 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place” (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4 In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass. App. Ct. at 180 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass. App. Ct. at 236-238 (public way found despite presence of “a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ‘Private Property/Chomerics Employees and Authorized Persons Only’ ”). Compare Commonwealth v. Smithson, 41 Mass. App. Ct. at 550-551 (no public way where a sign listing business hours was “clearly visible from the road as one approache[d] the entrance” and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking — 835 — for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 6 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Proof of operating under the influence on a public way may “rest entirely on circumstantial evidence.” Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458 (1927); Commonwealth v. Colby, 23 Mass. App. Ct. at 1011. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public ways appropriately included the following: “Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.” Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at the pier. — 836 — 3. Remaining issues. We need not belabor the remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury, and that was why he refused to take a field sobriety test, was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not “deprive[] the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Finally, the defendant’s argument that the judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the opportunity to give “a community impact statement,” speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. Judgment affirmed. Footnotes [1] Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. [2] The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to “race up and pass” one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed. [3] In Commonwealth v. George, “the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.” Id. at 636. [4] The evidence in Commonwealth v. George, supra at 637-638, indicated that the defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier. [5] We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. [6] The passenger left the car soon after they were confronted at the pier. [7] The Commonwealth chose not to inquire about the field sobriety test on cross-examination. [8] The judge explained that “having weighed the statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.”