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Commonwealth v. Veronneau

Appeals Court of Massachusetts, Bristol

October 11, 2016

COMMONWEALTH
v.
ROBERT VERONNEAU.

          Heard: March 9, 2016.

         Complaint received and sworn to in the New Bedford Division of the District Court Department on May 24, 2013.

         The case was heard by J. Thomas Kirkman, J.

          John G. Mateus for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth.

          Present: Cypher, Cohen, & Neyman, JJ.

          COHEN, J.

         The defendant was tried in the District Court, jury-waived, on charges of carrying a loaded firearm while under the influence of intoxicating liquor (FUI), see G. L. c. 269, § 10H; negligent operation of a motor vehicle, see G. L. c. 90, § 24(2) (a.); operating a motor vehicle while under the influence of intoxicating liquor (OUI), second offense, see G. L. c. 90, § 24(1) (a.) (1); and two civil motor vehicle infractions, speeding and marked lanes violation. The judge found the defendant guilty of FUI, and imposed a sentence of one year of unsupervised probation with a condition that he not possess firearms or have a firearm license during that period. The judge also found the defendant at fault for the civil motor vehicle infractions, and imposed fines; however, the judge found the defendant not guilty of negligent operation of a motor vehicle and OUI. The defendant's primary contention on appeal is that his conviction of FUI is fatally inconsistent with his acquittal of OUI. After consideration of this and other arguments presented by the defendant, we affirm.

         Background.

         The evidence, taken in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), may be summarized as follows. On May 23, 2013, State police Trooper Paul Gifford was patrolling in a marked cruiser on Route 18 in New Bedford, which has a posted speed limit of fifty miles per hour. It was raining heavily. The trooper observed a vehicle entering Route 18 from the east ramp of Route 495, at a speed that he estimated to be eighty-two miles per hour. The vehicle accelerated, changed lanes twice, passed three other vehicles, drifted to the right, drove in the breakdown lane, and then swerved back into the right travel lane. Those maneuvers occurred without use of the turn signal. The vehicle exited onto Elm Street, at which point the trooper stopped it.

         Two individuals were in the vehicle -- the defendant, who was driving, and his girlfriend, who was seated in the front passenger seat. After requesting and receiving the defendant's license and registration, the trooper noticed that the defendant's eyes appeared "glossy" and that he smelled of alcohol. The defendant denied having consumed alcohol and told the trooper that the odor was coming from his girlfriend.

         At the trooper's request, the defendant stepped out of the vehicle, grabbing onto it for balance. The trooper then noticed a large bulge in a front pocket of the defendant's pants, which was consistent with the size and shape of a firearm. He asked the defendant if he had a firearm on his person, and the defendant responded that he was carrying a Beretta .25 caliber pistol. The defendant also informed the trooper that the pistol was loaded, with a round in the chamber, and that the safety was off. The defendant represented (and the trooper later confirmed) that he had a license to carry the firearm. The trooper took possession of the pistol, which, at trial, was stipulated to be a working firearm.

         By this time, the rain had slowed to a drizzle. The trooper asked the defendant to perform field sobriety tests and instructed the defendant on how to perform each test. The defendant endeavored to comply. Although he passed the alphabet test, the defendant did not successfully complete the one-leg stand test or the nine-step walk and turn test. The trooper placed the defendant under arrest and gave him Miranda warnings. The defendant then "begg[ed]" the trooper for a "break" and admitted to having consumed three vodka tonics.

         The trooper brought the defendant to the State police barracks, where the defendant consented to and participated in a breathalyzer test approximately one hour after the vehicle had been stopped. The result was a reading of .07.

         D ...


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