Everyone, Judge Payne included, stands for jury entering the courtroom
In a Jury trial held Wednesday at the Eastern Hampshire District Court, Deoclecio Artur, age 38, was found "not guilty" of the charge Operating Under the Influence of intoxicating liquor by a Jury of six.
The incident occurred back on Feb 21 when AFD Fire Chief Tim Nelson called Dispatch somewhat late on Friday night (10:47 PM) to report an "erratic operator".
Chief Nelson first observed the pickup truck as it came on to South Pleasant street via a clumsy turn where both the front and rear tires of Mr. Artur's truck went up over the curbing.
Chief Nelson, on his way home from a long day/night at Central Station, followed the truck for 1.8 miles observing him swerving over the center double yellow lines "five to seven times" and almost hit a PVTA bus that had stopped to release passengers -- one of them handicapped.
Mr. Artur pulled into the busy Hess Station on the corner of Rt 116 and Pomeroy Lane, going inside to get a coffee. Chief Nelson testified that Artur tripped upon entering the store. Officer Corsetti, a nine year veteran of the department, soon arrived and Chief Nelson pointed out Artur.
Corsetti made contact in the Hess station and asked him to step outside. When the police officer looked back wondering why Artur was not close behind he noticed that he was having trouble getting out the double doors which require a push from the center line rather than left or right margins.
Corsetti had instantly picked up the "strong smell of alcohol" as well as those other associated signs of intoxication: glassy blood shot eyes and thick tongued slurred speech.
But, as usual, it was a busy time of night for understaffed APD, with reports of minor car accidents starting to come in, so Corsetti -- who had not actually witnessed Artur driving -- offered him a "gentleman's agreement": Call someone for a ride and pick your truck up tomorrow.
Officer Corsetti under cross examination by Attorney Chamberland
Artur called his mother in South Hadley, but she told him it would take 20-25 minutes to get there, which kind of defeated the purpose of the agreement, to allow Corsetti to return to patrol.
At this point the officer told Artur he would give him a ride to APD headquarters where his mom could pick him up. Convinced he was in no condition to drive officer Corsetti was simply not going to take the chance that Artur would simply jump in his truck after the officer left the scene.
Artur became agitated shouting, "You can't arrest me, you got nothing on me!" Convinced by up close examination that he did have something on him, Corsetti then decided to do a Field Sobriety Test and walked Artur over to a flat, paved, lighted area in front of the dumpster.
Hess Station on West Street where FSTs performed
Corsetti patiently explained, and even demonstrated, the nine step turn, and one legged stand and then asked Artur, "Is there any reason you can't do this test?" (besides being drunk of course) to which Artur simply replied, "I'm cold".
He repeatedly lost his balance and missed every single step in the return phase of the 9 step heel/toe walk, also failing to stay on a strait line vector. On the one legged stand he didn't count out loud as instructed (count to 30 by using "one thousand" after each number) and only made it to 7-one-thousand (minus the "one thousand").
In other words, he failed miserably.
Corsetti took him to APD for booking. The booking video, presented to the jury by the defense, certainly does not show a staggering, slurring drunk (although the quality of the film left much to be desired). Although I did notice Artur briefly use both hands to stabilize balance when coming up from a bent over position after removing his shoes.
Deoclecio Artur on the stand
The defense made much of Artur being from Brazil where Portuguese was his native language, suggesting he did not understand the officer's FST instructions. Although the prosecutor countered that he came to America when he was 12, graduated from an English speaking High School and trade school and even his mother proudly pointed out on the stand that he was fluent with English.
It was indeed cold that night and the defense put a Hess worker on the stand who testified it was slippery as she had to put down salt on the front entryway. She also called Artur "a regular," although she didn't remember interacting with him close up that night.
Amherst College weather station shows temperatures that night just above freezing (33.85 degrees)
Defense Attorney Chamberland also requested and made much of records from the Amherst DPW showing "spot treatments" had taken place around town at the time of the incident.
The defense also put a co-worker on the stand to testify that Artur had complained of a back injury due to heavy lifting while on the job as a carpenter prior to the DUI incident. And medical records (well, chiropractor) showed he did seek treatment for a back injury, but not until April/May -- well after his February arrest.
And the prosecutor did point out that Corsetti asked if there were any reason he could not perform the tests and Artur did not mention back problems. In fact just prior to his arrest Artur had been at the Amherst Brewing Company, where he admitted to drinking "two beers," playing pool for almost three hours with friends.
One of those friends testified that Artur "was fine" just before leaving the establishment. That same friend had left a little earlier and had texted Artur to, "Be careful the rotary is very icy."
The prosecution pointed out that you do tend to bend over and assume other physical postures while playing pool. Artur also admitted to not missing any days from carpentry work due to the back injury, and couldn't even remember the exact incident that caused it.
In his closing statement Attorney Alfred Chamberland reminded the jury that the American system of justice is built on a "presumption of innocence, and it's important you hear this term over and over again: Guilt beyond a reasonable doubt."
He paused for just a dramatic second then quickly added: "The Commonwealth fell incredibly short of that."
The jury agreed.
Two vital pieces of information, however, were not presented to the jury: Artur had a previous DUI record; and he refused to take the chemical Breathalyzer back at APD station -- the test that is admissible in court.
In Massachusetts neither of these telling bits of information are allowed as evidence in a trial where the defendant must be found guilty, "beyond a reasonable doubt."