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
23-P-38
COMMONWEALTH
vs.
MAUREEN MCCARTHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of operating under the
influence of intoxicating liquor. 1 On appeal the defendant
argues that the evidence was insufficient to support her
conviction. We affirm.
Background. We summarize the evidence in the light most
favorable to the Commonwealth. See Commonwealth v. Latimore,
378 Mass. 671, 676-677 (1979). The defendant's tenant was at
his apartment on School Street in Manchester-by-the-Sea when the
defendant showed up and tried to enter, causing the tenant to
call the police. About ten minutes later, the tenant saw the
defendant driving her car "erratic[ally]" as she tried to back
out of the driveway next to his apartment building. The
1 The trial judge later found the defendant not responsible for
the civil infraction of driving without possession of a license.
driveway was accessible only from School Street. When the
tenant went downstairs to record what was happening, the
defendant put the car in park, got out, and started walking
toward him quickly. The tenant retreated into the building.
Officer Zakary Johnson responded to the scene at about 8:41
P.M. and observed the defendant banging on the front door of the
building and "making a lot of verbal noise," which he described
as "[l]oud, incoherent babbling." As he spoke to the defendant,
Officer Johnson noticed that she was slurring her speech,
smelled of alcohol, and was "argumentative and agitated." When
asked for her license, the defendant got into her car, which was
still parked in the driveway, and then said, "I have no idea
where it is." There was no one else in or near the car, and the
defendant told Officer Johnson that she "drove there" about ten
minutes prior to his arrival.
Officer Ronald Ramos responded soon thereafter and
similarly observed that the defendant had slurred speech,
smelled of alcohol, and was unsteady on her feet, and that her
demeanor was "combative." Based on his observations, Ramos
asked the defendant to submit to field sobriety tests. Upon
administering the horizontal gaze nystagmus test, 2 Officer Ramos
2 As described by Officer Ramos, this is "a test where you look
at the person's eyes and you use an instrument, usually a pen,
and you're looking for nystagmus in the eyes, and you look for
smooth pursuit or the lack thereof, and maximum deviation."
2
noticed that "there was a lack of smooth pursuit of [the
defendant's] eyes," which he described as bloodshot and glassy.
The defendant did not perform any other field sobriety tests,
stating that she could not do so because of an injury. At some
point the defendant stated that she would take a preliminary
breath test but only if the officers promised to let her leave
if she was under the legal limit.
Forming the opinion that the defendant was under the
influence of alcohol, Officer Johnson placed her under arrest
and transported her to the police station. During the booking
process, the defendant was argumentative, continued to slur her
words, and still smelled strongly of alcohol. At about 10:26
P.M., the defendant took a breath test, which showed a blood
alcohol content of .10 percent.
Discussion. To sustain a conviction of operating under the
influence of intoxicating liquor, the Commonwealth must prove
three elements: "(1) operation of a vehicle, (2) on a public
way, (3) under the influence of alcohol." Commonwealth v.
O'Connor, 420 Mass. 630, 631 (1995). The defendant argues that
the evidence was insufficient to establish the first two
elements because the driveway was a private, not public, way and
no witness observed her driving on School Street. We disagree.
The defendant's admission to Officer Johnson that she
"drove there," corroborated by other evidence, was adequate to
3
show that she operated a vehicle on a public way. 3 Although a
defendant may not be convicted based solely on an uncorroborated
confession, see Commonwealth v. Forde, 392 Mass. 453, 457-458
(1984), the corroboration required in this context is "quite
minimal," Commonwealth v. Lagotic, 102 Mass. App. Ct. 405, 409
(2023), quoting Commonwealth v. Green, 92 Mass. App. Ct. 325,
327 (2017). In particular, "[t]he corroboration rule requires
only that there be some evidence, besides the confession, that
the criminal act was committed by someone, that is, that the
crime was real and not imaginary." Forde, supra at 458.
The evidence here was adequate to show that the crime was
not imaginary. The tenant saw the defendant driving the car in
the driveway, and there was no evidence that anyone had been in
the car with her. The defendant's request that the officers let
her leave, as well as the tenant's observation of her trying to
back out of the driveway, suggested that the defendant did not
live at that location, raising the inference that she drove
there. Furthermore, the defendant's statement that she had
arrived ten minutes prior to Officer Johnson's arrival coincided
with the timeframe provided by the tenant. All of this evidence
3 To the extent the defendant challenges the denial of her motion
to suppress her admission, she has waived that claim by not
providing us with a copy of the hearing transcript and by not
supporting the claim with adequate appellate argument. See
Commonwealth v. Woody, 429 Mass. 95, 97 (1999); Commonwealth v.
Salcedo, 405 Mass. 346, 351 (1989).
4
corroborated the defendant's admission to Officer Johnson that
she had driven to the location ten minutes earlier. See
Lagotic, 102 Mass. App. Ct. at 409 (defendant's admissions to
driving vehicle corroborated by evidence that he was on roadside
near accident site and by lack of evidence to suggest anyone
else had been driving). The corroborated admission in turn,
coupled with the fact that the driveway was accessible only from
School Street, was sufficient to show that the defendant
operated her vehicle on a public way. 4
To the extent the defendant claims that there was
insufficient evidence to establish that she was impaired, she
has not supported the claim with adequate appellate argument.
See Commonwealth v. Salcedo, 405 Mass. 346, 351 (1989). In any
event, the Commonwealth presented sufficient proof of impairment
-- in particular, the defendant's erratic driving in the
driveway; her combativeness, slurred speech, unsteadiness on her
feet, and bloodshot and glassy eyes; the smell of alcohol coming
from her breath; Officer Johnson's opinion that she was under
the influence of alcohol; and the results of the breath test
taken at the police station. See Commonwealth v. Gallagher, 91
Mass. App. Ct. 385, 390-391 (2017). Any remaining claims, to
the extent we have not addressed them, likewise do not rise to
4 The defendant does not argue that the evidence was insufficient
to show that School Street is a public way.
5
the level of adequate appellate argument and do not warrant
overturning the defendant's conviction.
Judgment affirmed.
By the Court (Desmond, Shin &
Singh, JJ. 5),
Assistant Clerk
Entered: January 24, 2024.
5 The panelists are listed in order of seniority.
6