Heard: March 9, 2016.
received and sworn to in the New Bedford Division of the
District Court Department on May 24, 2013.
case was heard by J. Thomas Kirkman, J.
G. Mateus for the defendant. Corey T. Mastin, Assistant
District Attorney, for the Commonwealth.
Present: Cypher, Cohen, & Neyman, JJ.
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.
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
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.
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
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
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.