Commonwealth v. Lopes (Lawyers Weekly No. 11-052-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1661 Appeals Court COMMONWEALTH vs. ROBERT P. LOPES. No. 12‑P‑1661. Berkshire. December 4, 2013. ‑ May 28, 2014. Present: Cypher, Kantrowitz, & Cohen, JJ. Motor Vehicle, Operating under the influence, License to operate. License. Registrar of Motor Vehicles, Revocation of license to operate. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses, Stipulation, Prior conviction, Instructions to jury. Evidence, Prior conviction. Complaint received and sworn to in the Southern Berkshire Division of the District Court Department on August 19, 2011. The case was tried before Rita S. Koenigs, J. Edmund R. St. John, III, for the defendant. John P. Bossé, Assistant District Attorney, for the Commonwealth. COHEN, J. The defendant appeals from two convictions arising from an incident on August 18, 2011: operating a motor vehicle while under the influence of liquor (OUI), fifth offense, pursuant to G. L. c. 90, § 24(1)(a)(1) (count one); and operating a motor vehicle while under the influence of liquor after his license had been suspended (and prior to restoration) for operating a motor vehicle while under the influence of liquor (OUI while OAS for OUI), pursuant to G. L. c. 90, § 23 (count two). With the exception of the subsequent offense portion of count one (which later was tried jury-waived), count one and count two were tried together before a District Court jury in June, 2012. The defendant’s appellate issues all relate to the introduction of evidence of his prior conviction for OUI as part of the Commonwealth’s proof on count two. For the following reasons, we affirm. Background. Prior to trial, the defendant filed a motion to bifurcate the trial so that the jury would first decide count one without hearing evidence, essential to a finding of guilt on count two, that the defendant’s license previously had been suspended or revoked for a prior OUI. The judge denied the motion during a pretrial hearing held on June 18, 2012, but ruled that she would limit the purpose of any such evidence in accordance with Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 102-103 (2011). The defendant also filed a motion to exclude evidence of his prior OUI convictions, his chief concern being to prevent their use for impeachment purposes should he elect to testify. The judge ruled that the convictions would not be […]