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
22-P-1117
COMMONWEALTH
vs.
ADMILSON RODRIGUES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the District Court, the
defendant was convicted of operating a motor vehicle while under
the influence of intoxicating liquor (OUI), second offense.1 We
discern in the defendant's claims no cause to disturb the
judgment and affirm.
1. Motion to suppress. There was no error in the motion
judge's denial of the defendant's motion to suppress. The
record supports the motion judge's finding that the trooper had
reasonable suspicion to believe the defendant had committed a
traffic offense, based on a license plate query showing that the
vehicle the defendant was driving had an expired inspection
sticker. See Commonwealth v. Pacheco, 51 Mass. App. Ct. 736,
1 The defendant was acquitted of unlicensed operation of a motor
vehicle.
739 (2001). Accordingly, there is no basis to suppress evidence
on the ground that the stop of the vehicle was improper.
To the extent the defendant seeks to challenge the motion
judge's failure to suppress statements made by the defendant
during the stop, the claim is unavailing. As the defendant
failed to raise this issue in his motion to suppress, the
Commonwealth was under no obligation to provide evidence at the
motion hearing bearing on the admissibility of the statements.
In his motion to suppress, and at the hearing on the motion, the
defendant advanced no argument directed to statements made
during the stop, and he attempts now to raise it for the first
time on appeal. "This he may not do." Commonwealth v. Edwards,
71 Mass. App. Ct. 716, 719 (2008), quoting Commonwealth v.
Lodge, 431 Mass. 461, 474 (2000).
In any event, any such request would have been futile, so
there is no basis for the defendant's related contention that
his counsel was ineffective for failing to advance such an
argument before the motion judge. See Commonwealth v. Gosselin,
486 Mass. 256, 264 (2020). The testimony of the arresting
officer regarding his observations that the defendant's speech
was slurred does not concern the statements themselves, but only
the fact that the defendant's inability to speak clearly served
as an indication of his impairment. Testimony regarding the
defendant's slurred speech accordingly does not implicate his
2
privilege against self incrimination. See Vanhouton v.
Commonwealth, 424 Mass. 327, 336 (1997).
2. Equal protection. There is likewise no merit to the
defendant's equal protection claim. As the issue was not raised
prior to or during the trial, we review the claim for a
substantial risk of a miscarriage of justice. Commonwealth v.
Francis, 485 Mass. 86, 106 (2020). We discern no such risk
because the defendant offers no evidence or argument to support
his claim.
"A defendant seeking to suppress evidence based on a claim
that a traffic stop violated principles of equal protection
bears the burden of establishing, by motion, a reasonable
inference that the officer's decision to initiate the stop was
motivated by race or another protected class." Commonwealth v.
Long, 485 Mass. 711, 713 (2020). The defendant did not argue an
equal protection violation in his motion to suppress, nor did he
offer evidence of his claim on appeal. Moreover, there is no
evidence in the record to suggest that the trooper knew the
defendant's race when he stopped him.
3. Records of the registry of motor vehicles. "[P]ublic
records are generally admissible absent confrontation . . .
because — having been created for the administration of an
entity's affairs and not for the purpose of establishing . . .
3
[a] fact at trial — they are not testimonial." Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 324 (2009).
The records of the registry of motor vehicles of the
defendant's driving history and notices of suspension are public
records prepared in the ordinary course of business and are not
testimonial. See Commonwealth v. Parenteau, 460 Mass. 1, 10
(2011).
Similarly, the certificate of authenticity, though prepared
in anticipation of trial, is "a clerk's affidavit authenticating
an official record" and "is not testimonial for purposes of the
confrontation clause." Commonwealth v. McMullin, 76 Mass. App.
Ct. 904, 904 (2010), citing Melendez-Diaz, 557 U.S. at 322.
Therefore, their admission did not violate the confrontation
clause.2
4. Sufficiency of the evidence. "In assessing the
sufficiency of the evidence, we consider 'whether, after viewing
the evidence in the light most favorable to the prosecution, any
2 The record included an additional certification which states:
"I further certify in accordance with G. L. [c. 90, § 23], that
there has since been no reinstatement of [the defendant's]
license or right to operate motor vehicles in the Commonwealth
of Massachusetts." This certification is testimonial, and its
admission violated the defendant's right to confrontation. See
Parenteau, 460 Mass. at 8. However, because the defendant was
acquitted of the charge of unlicensed operation of a motor
vehicle and it bore no relation to the charge of which the
defendant was convicted, we discern no substantial risk of a
miscarriage of justice.
4
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'" Commonwealth v.
Davis, 487 Mass. 448, 462 (2021), quoting Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979).
The Commonwealth presented sufficient proof of impairment
to allow a rational trier of fact to conclude that the defendant
was operating a motor vehicle under the influence of
intoxicating liquor. The arresting trooper testified that the
defendant had bloodshot and glassy eyes, slurred speech, and a
moderate odor of alcohol that followed the defendant. The
physical evidence recovered during the motor vehicle stop
included a mostly empty Coronita beer bottle found in the
driver’s side door pocket of the defendant's car. The
defendant's conduct, abruptly pulling over to allow the trooper
in a fully marked State Police Cruiser to pass him, suggested
consciousness of guilt.
5
Taken together, the evidence was sufficient to support a
finding that the defendant operated a motor vehicle under the
influence of intoxicating liquor.3
Judgment affirmed.
By the Court (Green, C.J.,
Neyman & Englander, JJ.4),
Assistant Clerk
Entered: March 5, 2024.
3 The defendant raises a variety of other claims, many of which
are unsupported by reasoned analysis or relevant authority. As
such, they fail to rise to the level of adequate appellate
argument as required by Mass. R. A. P. 16(a) (9), as appearing
in 481 Mass. 1628 (2019). See Commonwealth v. Beverly, 485
Mass. 1, 16 (2020). To the extent that we do not address the
defendant's other contentions, "they 'have not been overlooked.
We find nothing in them that requires discussion.'" Commonwealth
v. Sosa, 493 Mass. 104, 124 n.12 (2023), quoting Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
4 The panelists are listed in order of seniority.
6