Commonwealth v. Leary (Lawyers Weekly No. 11-129-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-470 Appeals Court 16-P-949 COMMONWEALTH vs. DANIEL LEARY. Nos. 15-P-470 & 16-P-949. Hampden. January 18, 2017. – September 29, 2017. Present: Green, Agnes, & Desmond, JJ. Motor Vehicle, Homicide, Operating under the influence. Intoxication. Evidence, Breathalyzer test, Field sobriety test, Intoxication, Unavailable witness, Previous testimony of unavailable witness, Videotape. Witness, Unavailability. Practice, Criminal, Argument by prosecutor, Instructions to jury, Lesser included offense, Assistance of counsel, Motion to suppress, Execution of sentence. Indictment found and returned in the Superior Court Department on April 27, 2011. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J.; the case was tried before Tina S. Page, J.; and a motion to reduce the verdict was heard by Edward J. McDonough, Jr., J. A renewed motion to stay execution of sentence, which was filed in the Appeals Court on June 8, 2016, was considered by Trainor, J. Barbara Munro for the defendant. Amal Bala, Assistant District Attorney, for the Commonwealth. AGNES, J. Following a nine-day jury trial in the Superior Court, the defendant, Daniel Leary, was convicted of motor vehicle homicide by reckless or negligent operation while under the influence of alcohol. See G. L. c. 90, § 24G(a). The case comes before us by two routes: the defendant’s direct appeal, and his appeal from an order of a single justice of this court denying his renewed motion to stay execution of his sentence pending the direct appeal.[1] For the reasons that follow, we affirm. Background. We recite the facts as the jury could have found them, reserving several details for later discussion. On March 25, 2011, at approximately 3:30 P.M., Peter Desrosiers came to the defendant’s house with a “thirty-pack” of beer. The defendant was preparing motorcycles for a “motor cross” race the next day. About one hour later, the defendant took his motorcycle to the racetrack, in Southwick, and Desrosiers followed in his truck, bringing the beer with him. At the racetrack, the defendant continued his preparations for the next day’s race. At approximately 9:00 P.M., the defendant and Desrosiers left the racetrack together in Desrosiers’s truck to pick up another motorcycle at the defendant’s cousin’s friend’s home, in West Springfield. The defendant drove because Desrosiers felt drunk, having consumed as many as one dozen beers by this […]