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
24-P-253
COMMONWEALTH
vs.
CARRIE A. JOHNSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of operating
a motor vehicle under the influence of intoxicating liquor
(OUI). On appeal the defendant argues that the trial judge
should have allowed her motion for a required finding of not
guilty, that the judge abused his discretion in restricting
defense counsel's cross-examination of the Commonwealth's
witness, and that defense counsel was ineffective. We affirm.
1. Sufficiency of the evidence. The offense of OUI has
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 challenges
only the third element, which required the Commonwealth to "prove beyond a reasonable doubt that the defendant's
consumption of alcohol diminished the defendant's ability to
operate a motor vehicle safely" (emphasis omitted).
Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). In
determining whether the Commonwealth met this burden, we ask
"whether the evidence, in its light most favorable to the
Commonwealth, notwithstanding the contrary evidence presented by
the defendant," was sufficient to permit a rational trier of
fact to find the element beyond a reasonable doubt. O'Connor,
supra, quoting Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979).
Viewing the evidence in the light most favorable to the
Commonwealth, the jury could have found the following facts. At
approximately 7:30 P.M. on August 27, 2021, a West Bridgewater
police officer saw a vehicle in front of him cross over the
double yellow center lines into the opposing lane of travel.
While the officer was "closing the distance between the vehicle
and [himself]," he saw the vehicle cross over the yellow center
lines again; this time, "the majority of the vehicle" went "over
the yellow lines." The officer activated his lights and sirens,
and the vehicle stopped without incident.
The officer approached the driver, later identified as the
defendant, and saw that her eyes were bloodshot and glassy.
There was also an odor of alcohol coming from the defendant's
2 breath, and the officer saw an open beer can in the cup holder
of the vehicle. When the officer asked the defendant if she had
been drinking that night, she replied that she "had had a few
beers but that she paced herself so she wouldn't get in
trouble." The officer proceeded to administer four field
sobriety tests. On the alphabet test, which "is simply saying
the alphabet A through Z," the defendant "said letters out of
order," missed a letter, and was unable to recite the alphabet
completely, despite trying twice. On the counting test, which
requires counting backwards from eighty-nine to seventy-five,
the defendant "counted very slowly" and "missed seventy-six
while counting." On the nine-step walk and turn test, the
defendant did not touch heel to toe on any of her steps, took
the incorrect number of steps, and "was unstable on her feet
which made her step off the line." On her first attempt at the
one-leg stand test, the defendant "immediately lost her balance
putting her foot down and raising her arms parallel to the
ground." She tried two more times and almost fell over on her
last attempt, causing the officer to "terminate[] the test for
safety." Based on his observations, the officer concluded that
the defendant was "drunk."
This evidence, when considered in its totality, was
sufficient to prove that the defendant was under the influence
of alcohol. The defendant drove erratically, admitted to
3 drinking that night, had an open beer can in her vehicle,
exhibited physical signs of alcohol consumption, and performed
poorly on four field sobriety tests. The jury could reasonably
have inferred from this that the defendant's consumption of
alcohol diminished her ability to operate her vehicle safely.
See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393
(2017); Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353
(2015). In arguing otherwise, the defendant points to evidence
favorable to her -- including that she had no difficulty parking
her vehicle, was coherent and cooperative, and was not swaying
or slurring her speech -- and posits that her knee and back
injuries could have accounted for her poor performance on some
of the field sobriety tests. But "the weight of the evidence is
not the yardstick we use to test whether the evidence satisfies
the requirement of proof beyond a reasonable doubt." Rarick,
supra. Rather, we ask whether the Commonwealth presented proof
that was sufficient to allow a rational trier of fact to
convict. See id. at 354. The evidence here, viewed in the
light most favorable to the Commonwealth, met that standard.
2. Restriction on cross-examination. During defense
counsel's cross-examination of the officer, he asked two
questions about the "accuracy" of the alphabet test and the one-
4 leg stand test. 1 The Commonwealth objected, and the judge
sustained both objections. The defendant argues that these
rulings violated her rights to present a complete defense and to
confront the witnesses against her through cross-examination.
We are unpersuaded.
"A trial judge has broad discretion to limit cross-
examination of a witness." Commonwealth v. Mercado, 456 Mass.
198, 203 (2010). In determining whether a judge acted beyond
his discretion, "we weigh the materiality of the witness's
direct testimony and the degree of the restriction on cross-
examination." Id., quoting Commonwealth v. Vardinski, 438 Mass.
444, 451 (2003).
Here, the officer's testimony on direct that the defendant
was "drunk" was a lay opinion, and ordinary field sobriety tests
can "supply [a] basis" for such an opinion without transforming
it into a scientific opinion. Rarick, 87 Mass. App. Ct. at 353
n.5. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013).
This is because ordinary field sobriety tests "measure a
person's sense of balance, coordination, and acuity of mind in
Specifically, defense counsel asked, "And is there data or 1
. . . anything that you know of that indicates the accuracy of using the alphabet test to --" and "Officer, if you know do you know . . . what the rate of accuracy is . . .
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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
24-P-253
COMMONWEALTH
vs.
CARRIE A. JOHNSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of operating
a motor vehicle under the influence of intoxicating liquor
(OUI). On appeal the defendant argues that the trial judge
should have allowed her motion for a required finding of not
guilty, that the judge abused his discretion in restricting
defense counsel's cross-examination of the Commonwealth's
witness, and that defense counsel was ineffective. We affirm.
1. Sufficiency of the evidence. The offense of OUI has
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 challenges
only the third element, which required the Commonwealth to "prove beyond a reasonable doubt that the defendant's
consumption of alcohol diminished the defendant's ability to
operate a motor vehicle safely" (emphasis omitted).
Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). In
determining whether the Commonwealth met this burden, we ask
"whether the evidence, in its light most favorable to the
Commonwealth, notwithstanding the contrary evidence presented by
the defendant," was sufficient to permit a rational trier of
fact to find the element beyond a reasonable doubt. O'Connor,
supra, quoting Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979).
Viewing the evidence in the light most favorable to the
Commonwealth, the jury could have found the following facts. At
approximately 7:30 P.M. on August 27, 2021, a West Bridgewater
police officer saw a vehicle in front of him cross over the
double yellow center lines into the opposing lane of travel.
While the officer was "closing the distance between the vehicle
and [himself]," he saw the vehicle cross over the yellow center
lines again; this time, "the majority of the vehicle" went "over
the yellow lines." The officer activated his lights and sirens,
and the vehicle stopped without incident.
The officer approached the driver, later identified as the
defendant, and saw that her eyes were bloodshot and glassy.
There was also an odor of alcohol coming from the defendant's
2 breath, and the officer saw an open beer can in the cup holder
of the vehicle. When the officer asked the defendant if she had
been drinking that night, she replied that she "had had a few
beers but that she paced herself so she wouldn't get in
trouble." The officer proceeded to administer four field
sobriety tests. On the alphabet test, which "is simply saying
the alphabet A through Z," the defendant "said letters out of
order," missed a letter, and was unable to recite the alphabet
completely, despite trying twice. On the counting test, which
requires counting backwards from eighty-nine to seventy-five,
the defendant "counted very slowly" and "missed seventy-six
while counting." On the nine-step walk and turn test, the
defendant did not touch heel to toe on any of her steps, took
the incorrect number of steps, and "was unstable on her feet
which made her step off the line." On her first attempt at the
one-leg stand test, the defendant "immediately lost her balance
putting her foot down and raising her arms parallel to the
ground." She tried two more times and almost fell over on her
last attempt, causing the officer to "terminate[] the test for
safety." Based on his observations, the officer concluded that
the defendant was "drunk."
This evidence, when considered in its totality, was
sufficient to prove that the defendant was under the influence
of alcohol. The defendant drove erratically, admitted to
3 drinking that night, had an open beer can in her vehicle,
exhibited physical signs of alcohol consumption, and performed
poorly on four field sobriety tests. The jury could reasonably
have inferred from this that the defendant's consumption of
alcohol diminished her ability to operate her vehicle safely.
See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393
(2017); Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353
(2015). In arguing otherwise, the defendant points to evidence
favorable to her -- including that she had no difficulty parking
her vehicle, was coherent and cooperative, and was not swaying
or slurring her speech -- and posits that her knee and back
injuries could have accounted for her poor performance on some
of the field sobriety tests. But "the weight of the evidence is
not the yardstick we use to test whether the evidence satisfies
the requirement of proof beyond a reasonable doubt." Rarick,
supra. Rather, we ask whether the Commonwealth presented proof
that was sufficient to allow a rational trier of fact to
convict. See id. at 354. The evidence here, viewed in the
light most favorable to the Commonwealth, met that standard.
2. Restriction on cross-examination. During defense
counsel's cross-examination of the officer, he asked two
questions about the "accuracy" of the alphabet test and the one-
4 leg stand test. 1 The Commonwealth objected, and the judge
sustained both objections. The defendant argues that these
rulings violated her rights to present a complete defense and to
confront the witnesses against her through cross-examination.
We are unpersuaded.
"A trial judge has broad discretion to limit cross-
examination of a witness." Commonwealth v. Mercado, 456 Mass.
198, 203 (2010). In determining whether a judge acted beyond
his discretion, "we weigh the materiality of the witness's
direct testimony and the degree of the restriction on cross-
examination." Id., quoting Commonwealth v. Vardinski, 438 Mass.
444, 451 (2003).
Here, the officer's testimony on direct that the defendant
was "drunk" was a lay opinion, and ordinary field sobriety tests
can "supply [a] basis" for such an opinion without transforming
it into a scientific opinion. Rarick, 87 Mass. App. Ct. at 353
n.5. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013).
This is because ordinary field sobriety tests "measure a
person's sense of balance, coordination, and acuity of mind in
Specifically, defense counsel asked, "And is there data or 1
. . . anything that you know of that indicates the accuracy of using the alphabet test to --" and "Officer, if you know do you know . . . what the rate of accuracy is . . . for [the one-leg stand] test to determine if somebody is under the influence?" The Commonwealth objected before defense counsel could finish asking the first question about the alphabet test.
5 understanding and following simple instructions," and "a lay
juror understands that intoxication leads to diminished balance,
coordination, and mental acuity from common experience and
knowledge." Commonwealth v. Sands, 424 Mass. 184, 188 (1997).
Thus, "[w]hat [the officer] observed, both before and during the
sobriety tests, was within the scope of a juror's common
experience of intoxication." Commonwealth v. Moreno, 102 Mass.
App. Ct. 321, 325 (2023).
While conceding that the officer was testifying as a lay
witness, the defendant claims that defense counsel's questions
about the "accuracy" of the field sobriety tests were still
relevant because the Commonwealth "spent the bulk of direct
eliciting testimony from this officer on his training and
experience with OUI [field sobriety tests] and the officer's
opinion of [the defendant's] success on those tests." This is
an inaccurate characterization. The officer testified briefly
on direct that he received training on investigating OUIs, which
included "the standard procedure block of instruction to
recognize signs of impairment as well as how to administer and
recognize field sobriety testing," and that he had participated
in approximately thirty OUI investigations during his career as
a West Bridgewater police officer. This testimony spans less
than one page of the transcript. The remainder of the officer's
direct testimony was appropriately confined to his observations
6 of the defendant on the night in question. The officer did not
tie his observations to his training and experience, nor did he
use words like "pass" or "fail" when testifying about the
defendant's performance on the field sobriety tests. He
described only what he observed.
Given what the officer testified to on direct, we see no
merit to the defendant's argument that the judge erred in
restricting defense counsel from cross-examining the officer
about the "accuracy" of the field sobriety tests. The questions
were of limited relevance because the officer was not testifying
as an expert and, contrary to the defendant's characterization,
did not testify or suggest that he formed the opinion that the
defendant was "drunk" based on scientific or technical training
or experience. See Moreno, 101 Mass. App. Ct. at 324-325
(officer's testimony about his training and experience, combined
with use of term "sobriety test," did not transform his
testimony from lay opinion to expert opinion). Moreover,
defense counsel cross-examined the officer at length without any
other restriction. With regard to the alphabet test, defense
counsel elicited from the officer that the defendant was able to
recite the alphabet without singing or slurring her words and
missed only one letter and that there is no "guide that is given
to help an officer determine whether . . . somebody passes or
fails the alphabet test." With regard to the one-leg stand
7 test, defense counsel elicited from the officer that the
defendant complied with his instructions and did not start the
test too soon and that the defendant's back and knee injuries
could have impacted her ability to complete the test. 2
Especially where the subject of the field sobriety tests was
thoroughly aired, we discern no abuse of discretion in the
judge's narrow restriction on cross-examination. See Mercado,
456 Mass. at 204 (no abuse of discretion in limiting use of
photographs in cross-examination where defense counsel
thoroughly cross-examined witness on point in question);
Commonwealth v. Avalos, 454 Mass. 1, 8 (2009), quoting
Commonwealth v. LaVelle, 414 Mass. 146, 154 (1993) (no abuse of
discretion in sustaining objections to two questions on cross-
examination "because the issue was 'sufficiently aired'").
3. Ineffective assistance of counsel. The defendant
argues that trial counsel was ineffective for failing to
introduce medical records documenting the defendant's knee and
back issues, for failing to advise her about whether to proceed
with a jury or jury-waived trial, and for failing to object to
the officer's testimony about seeing a beer can in the vehicle.
2 Defense counsel did not ask the officer about the accuracy of the counting test or the nine-step walk and turn test. In any event, defense counsel also cross-examined the officer at length about his observations of the defendant's behavior during those tests.
8 The defendant did not file a motion for a new trial, however,
and her claims do not fall within the "narrow" exception that
applies "when the factual basis of the claim appears
indisputably on the trial record." 3 Commonwealth v. Zinser, 446
Mass. 807, 811 (2006), quoting Commonwealth v. Adamides, 37
3 The defendant's record appendix includes affidavits from the defendant and from appellate counsel. These affidavits are not part of the trial record, and their inclusion in the record appendix was improper. See Commonwealth v. Phoenix, 409 Mass. 408, 432 n.17 (1991).
9 Mass. App. Ct. 339, 344 (1994). We thus decline to consider the
claims on direct appeal. See Commonwealth v. Gilman, 89 Mass.
App. Ct. 752, 761-762 (2016).
Judgment affirmed.
By the Court (Henry, Shin & Brennan, JJ. 4),
Clerk
Entered: April 7, 2025.
4 The panelists are listed in order of seniority.