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16-P-192 Appeals Court
COMMONWEALTH vs. JUDITH A. GALLAGHER.
No. 16-P-192.
Hampden. February 7, 2017. - April 21, 2017.
Present: Green, Meade, & Agnes, JJ.
Motor Vehicle, Operating under the influence. Intoxication. Evidence, Intoxication, Opinion. Practice, Criminal, Witness. Witness, Police officer.
Complaint received and sworn to in the Chicopee Division of the District Court Department on June 30, 2014.
The case was tried before Bethzaida Sanabria-Vega, J.
Colin Caffrey for the defendant. Kelsey A. Baran, Assistant District Attorney, for the Commonwealth.
MEADE, J. After a jury trial, the defendant was convicted
of operating while under the influence of intoxicating liquor
(OUI), in violation of G. L. c. 90, § 24(1)(a)(1). On appeal,
she claims that the judge improperly admitted a State trooper's
testimony concerning her impairment to operate a motor vehicle, 2
and that the evidence was insufficient to support her
conviction. We affirm.
1. Background. a. The incident. In the early morning
hours of June 29, 2014, the Massachusetts State police were
conducting an OUI checkpoint on Route 33 in Chicopee.1 State
Trooper John Haidousis, who had ten years of experience working
in law enforcement,2 was assigned to work the secondary location,
i.e., the parking lot of Monroe Muffler, a business located
directly off of Route 33.3 The business parking lot was brightly
lit, the ground was flat and paved, and individual parking spots
were marked visibly by painted lines on the pavement.
At about 12:15 A.M., the defendant, as directed by another
trooper, drove her vehicle into the secondary location parking
lot without incident. Trooper Haidousis directed her to park in
one of the marked parking spots. The defendant failed to do as
instructed, instead parking her vehicle "crooked[ly]" or
"diagonally across two parking spots." Upon request, the
defendant produced a driver's license and perhaps a
1 Route 33 is a main thoroughfare in Chicopee that is located in close proximity to the Massachusetts Turnpike. 2 Trooper Haidousis was trained in investigating OUI cases at the police academy. 3 An OUI checkpoint consists of two locations. The first is a primary stop, where troopers will initially stop motor vehicles and converse with the drivers. The second location is where a driver who is suspected of being under the influence of alcohol will be directed and questioned further. 3
registration; Trooper Haidousis determined that she was seventy-
one years old.
As Trooper Haidousis spoke to the defendant he detected an
odor of alcoholic beverage coming from her mouth, and observed
her eyes to be "bloodshot and glassy." Trooper Haidousis asked
the defendant whether she had consumed any alcohol, to which she
replied that she had consumed three beers, and had started
drinking around midnight. Her speech was "a bit slurred."
Based on these observations, Trooper Haidousis asked the
defendant to perform field sobriety tests, to which she
consented.
When the defendant got out of her car, the trooper again
detected the smell of alcohol coming from her person. She was
wearing flip-flop-style shoes. He instructed her to stand in
one spot, and as he explained the field sobriety tests, he
observed her "swaying a bit back and forth." When asked if she
had any injuries that would prevent her from performing the
tests, the defendant replied that she had arthritis in her hips,
but she nonetheless agreed to perform the tests.
Trooper Haidousis first had the defendant perform the
"nine-step walk and turn" test. To perform this test, the
defendant was instructed to stand up straight, and to keep her
arms by her sides. She was told to take nine forward steps on a
painted straight line in the parking lot, heel to toe, while 4
counting out loud to nine. At the ninth step, the defendant was
to turn around and walk nine steps back in the same fashion,
i.e., heel to toe, while she counted out loud to nine, keeping
her hands by her sides the entire time. The defendant listened
to the instructions, and began the test without incident.
During the first part of the test, the defendant did not
take all nine steps, instead taking only seven, and she stepped
off of the painted line. She also failed to touch her heel to
her toe, as instructed, on each step. On the return trip, she
only took six of the nine required steps, again stepping off of
the line, and again missing the heel to toe instruction.
Trooper Haidousis explained in his testimony that failure to
take all nine steps is an "indicator[] that we look for."
The defendant was then instructed to complete the "one-leg
stand" test, which is another standardized field sobriety test
to detect impairment due to alcohol consumption. She was
instructed to stand with her arms by her sides. Then she was to
raise one leg of her choice approximately six inches off of the
ground, while she kept her arms by her sides. Once her leg was
elevated, the defendant was required to count out loud until she
reached thirty. Trooper Haidousis used his wristwatch to track
the accuracy of the defendant's thirty-second count. The
defendant listened to the instructions and began the test
without incident. However, the defendant was unable to complete 5
the test as instructed as she put her foot down after only ten
or eleven seconds. She was also "swaying from side to side, not
standing up straight," and failed to count out loud, as she had
been instructed.4
The final field sobriety test the trooper had the defendant
perform was the recitation of the alphabet. In preparation for
this test, the trooper asked the defendant what was the highest
level of education she had attained, and if she knew the
alphabet. The defendant properly recited the alphabet.
After he finished administering the field sobriety tests,
Trooper Haidousis "formed the opinion that [the defendant] was
under the influence of alcohol." When asked if he made a
determination as to the level of the defendant's impairment, the
trooper replied, over objection, that "her ability -- she was
impaired to operate a motor vehicle." Trooper Haidousis based
this determination on his detection of an odor consistent with
alcohol emanating from the defendant, her glassy and bloodshot
eyes, her slurred speech, her admission to consuming alcohol,
and her performance on the field sobriety tests, as well as the
manner in which she parked her car in the secondary location.
Based on these factors, Trooper Haidousis arrested the defendant
4 Trooper Haidousis was aware that the DWI Detection and Standardized Field Sobriety Testing manual suggests that people older than the age of sixty-five or those with back, leg, or inner ear problems may have trouble performing these two tests. 6
for OUI. Subsequent to Trooper Haidousis's testimony, the
parties stipulated to the elements of operation and public way.
b. Jury instructions. As part of her final charge to the
jury, the judge instructed the jury that:
"Your function as the jury is to determine the facts of this case. You are the sole and exclusive judges of the facts. You alone determine what evidence to accept, how important any evidence is that you do accept, and what conclusions to draw from all the evidence. You must apply the law as I give it to you, to the facts as you determine them to be, in order to decide whether the Commonwealth has proved [the defendant] guilty of this charge."
She also instructed that they were "not to be swayed by
prejudice or by sympathy, by personal likes or dislikes, toward
either side."
After she instructed the jury on the elements of the crime,
the judge reminded the jury of the stipulation and its effect.
She also instructed on what it means to be "under the influence
of alcohol," and she gave a specific instruction regarding
Trooper Haidousis's opinion relative to the defendant's level of
impairment:
"You have heard testimony of an opinion about [the defendant's] sobriety. Ultimately, it is for you as the jury to determine whether she was under the influence of alcohol, according to the definition I have provided. You may consider any opinion you have heard and accept it or reject it. In the end, you and you alone must decide whether she was under the influence of intoxicating liquor."
Both the Commonwealth and the defendant were satisfied with the
judge's charge to the jury. 7
2. Discussion. a. Opinion testimony. The defendant
claims that the judge erred by admitting Trooper Haidousis's
testimony that she was "impaired to operate a motor vehicle."
We agree, but we conclude the error was not prejudicial.
Because the claimed error was preserved, we must determine
whether the admission in evidence of the improper opinion
constituted prejudicial error. "An error is not prejudicial if
it 'did not influence the jury, or had but very slight effect';
however, if we cannot find 'with fair assurance, after pondering
all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error,' then it is prejudicial." Commonwealth v. Cruz, 445
Mass. 589, 591 (2005), quoting from Commonwealth v. Flebotte,
417 Mass. 348, 353 (1994). See Kotteakos v. United States, 328
U.S. 750, 764 (1946).
"In a prosecution for operating a motor vehicle while under
the influence of alcohol, lay witnesses, including police
officers, may not opine as to the ultimate question whether the
defendant was operating while under the influence, but they may
testify to [her] apparent intoxication." Commonwealth v. Canty,
466 Mass. 535, 541 (2013), quoting from Commonwealth v. Jones,
464 Mass. 16, 17 n.1 (2012). A lay opinion, as opposed to an
expert opinion, is admissible "only where it is '(a) rationally
based on the perception of the witness; (b) helpful to a clear 8
understanding of the witness's testimony or the determination of
a fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge.'" Commonwealth v. Canty, supra,
quoting from Mass. G. Evid. § 701 (2013).
Here, Trooper Haidousis testified that after observing the
defendant and administering the field sobriety tests, he "formed
the opinion that [the defendant] was under the influence of
alcohol." When asked if he made a determination as to the
defendant's "level of impairment," Trooper Haidousis stated that
he determined that the defendant "was impaired to operate a
motor vehicle." The first portion of this testimony, i.e., the
opinion that the defendant was under the influence of alcohol,
was proper. See Commonwealth v. Saulnier, 84 Mass. App. Ct.
603, 605 (2013). However, the second portion, where the trooper
opined that the defendant's level of intoxication rendered her
impaired to operate her vehicle, is the type of evidence that
was prohibited in Canty, supra at 544. This type of testimony
comes close to an opinion on the ultimate issue of guilt or
innocence, and presents a danger of unfair prejudice. See id.
at 543-544. At the same time, in view of the whole case, the
prejudice flowing from this opinion would be relatively modest
given what must have been obvious to the jury, i.e., that the
arresting trooper believed the defendant's ability to operate
her car was impaired by alcohol consumption. 9
Here, the judge gave a specific instruction regarding
Trooper Haidousis's opinion relative to the defendant's level of
impairment. The instruction told the jury that it was for them,
and them alone, to determine whether the defendant was under the
influence of alcohol, and that the jury were free to accept or
reject any opinion on the issue. The instruction was nearly
verbatim of that given in Canty, where the Supreme Judicial
Court found no prejudicial error in the opinion testimony of the
officer. Id. at 545 ("Any such risk [of prejudice] was
diminished by the judge's explicit final instruction to the jury
that they ultimately must determine whether the defendant was
under the influence of alcohol, and that they may consider any
opinion they heard about the defendant's sobriety 'and accept it
or reject it'"). The inclusion of this instruction greatly
diminished the risk of any prejudicial effect the improper
opinion testimony may have had on the jury. See ibid.5
Furthermore, there was compelling, if not overwhelming,
evidence that supported the jury's conclusion -- apart from the
5 The dissent takes issue with the propriety of the Supreme Judicial Court's conclusion in Canty that this instruction ameliorates the risk of prejudice. See post at . The defendant made this claim neither at trial nor in his appellate brief, and the issue is not before us. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (claims not raised in briefs are waived). In any event, even if we were inclined, we lack the authority to "alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003). 10
improper opinion testimony -- that the defendant's intoxication
impaired her ability to operate a motor vehicle. See ibid. Cf.
Commonwealth v. Saulnier, supra at 607 (no substantial risk of
miscarriage of justice where improper opinion testimony about
defendant's impaired ability to operate motor vehicle outweighed
by overwhelming evidence of diminished capacity). From the very
beginning of the encounter with the troopers, the defendant
exhibited signs of alcohol impairment. When she pulled into the
secondary location, she failed to follow instructions to park in
a single designated parking space, and instead parked her
vehicle in a crooked manner across two spaces. Her eyes were
glassy and bloodshot, and her speech was "a bit slurred."
Trooper Haidousis detected an odor of alcohol coming from the
defendant when she was in her vehicle and when she exited the
vehicle. Most notably, the defendant admitted to consuming
three beers at midnight, which was approximately fifteen minutes
before she arrived at the secondary location.6
In addition, while the defendant stood outside her car and
received instructions on how to perform the field sobriety
tests, she swayed back and forth. During the nine-step walk and
turn test, she failed to touch her heel to her toe, failed to
6 Although it is unlikely the defendant actually could have consumed three beers in fifteen minutes, she nonetheless admitted to drinking alcohol, and the implausibility of her expressed timeline lends further support to the jury's conclusion that she was impaired. 11
remain on the painted line as instructed, and completed only
thirteen of the eighteen over-all required steps. When the
defendant attempted the one-leg stand test, she failed to
elevate her foot as instructed for the designated amount of
time, she was unable to stand up straight, she failed to count
aloud, and she swayed from side to side.7
Although the defendant was able to recite the alphabet, the
remainder of her performance on the field sobriety tests as well
as her behavior ancillary to the tests and her physical symptoms
provided overwhelming evidence that her ability to operate was
impaired by her alcohol consumption. When this evidence is
coupled with the judge's instruction on opinion testimony, as
well as the remainder of her instructions, and viewed against
the backdrop of the entire trial, which includes the improper
admission of the trooper's opinion, we are fairly assured that
the jury were not substantially swayed by the error. See
Commonwealth v. Flebotte, 417 Mass. at 353. To the extent there
was any resulting effect on the jury occasioned by the trooper's
7 The dissent's suggestion, post at , that jurors should be instructed that testimony relative to field sobriety tests is not scientific is not a claim raised by the defendant, and it is not before us. See note 5, supra. 12
opinion, it was slight. See Kotteakos v. United States, 328
U.S. at 765.8
b. Sufficiency of the evidence. The defendant also claims
that there was insufficient evidence to support her conviction.
We disagree. "When analyzing whether the record evidence is
sufficient to support a conviction, an appellate court is not
required to 'ask itself whether it believes that the evidence at
the trial established guilt beyond a reasonable doubt.' . . .
Rather, the relevant 'question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.' Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v.
Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau,
74 Mass. App. Ct. 17, 19 (2009).
8 The dissent posits, post at , that unlike Canty, the error was prejudicial because there were different or additional indicia of impairment in Canty not present here. For example, the dissent identifies the absence of erratic driving in this case that was present in Canty. See post at . However, evidence of erratic driving is not a necessary component of the Commonwealth's burden of proof. Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). In any event, even if the evidence in the two cases veers from identicality, the Supreme Judicial Court did not set the facts in Canty as a floor for the strength of evidence required to overcome prejudice caused by improper opinion testimony. Notably, the dissent cites no case in which opinion testimony of the type involved in the present case furnished grounds for reversal, particularly when ameliorated by the instruction administered in both Canty and this case. 13
When evaluating sufficiency, the evidence must be reviewed
with specific reference to the substantive elements of the
offense. See Jackson v. Virginia, supra at 324 n.16;
Commonwealth v. Latimore, supra at 677-678. In the
circumstances of this case, to establish the defendant's guilt
of OUI in violation of G. L. c. 90, § 24(1)(a)(1), the
Commonwealth was required to prove that the defendant (1)
operated a motor vehicle, (2) on a public way, (3) while under
the influence of alcohol. Commonwealth v. Palacios, 90 Mass.
App. Ct. 722, 728 (2016). At this defendant's trial, the first
two elements, operation of a vehicle and public way, were
stipulated to by the parties. Therefore, the only element the
Commonwealth was required to prove was that the defendant was
under the influence of alcohol. However, the Commonwealth need
not prove that the defendant was drunk, only that alcohol
diminished her ability to operate a motor vehicle safely.
Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988).
The evidence recited previously in part 2.a, supra, which
supported our conclusion that the error in the trooper's
testimony was not prejudicial, also supports our determination
that the evidence was sufficient to support the defendant's
conviction. In the light most favorable to the Commonwealth,
the defendant exhibited classic symptoms of alcohol
intoxication: her eyes were bloodshot and glassy; an odor of 14
alcohol emanated from her person; her speech was slurred; she
admitted to drinking three beers; she parked her car
"crooked[ly]" or "diagonally" across two parking spaces,
contrary to instructions; she swayed and could not stand
straight while being instructed on how to perform field sobriety
tests; and she was unable to properly perform two out of three
of the tests. From all of this, a rational jury were entitled
to find the defendant guilty of OUI.
Relying on authority from outside the Commonwealth, see
United States v. Horn, 185 F. Supp. 2d 530, 558 (D. Md. 2002),
the defendant claims that the field sobriety tests she failed
are not conclusive evidence of intoxication. Putting aside
whether this is true, see Commonwealth v. Brown, 83 Mass. App.
Ct. 772, 776-777 (2013) ("The responses of a person impaired by
alcohol to [physical field sobriety] tests are incriminating
'not because the tests [reveal the] defendant's thoughts, but
because [the defendant's] body's responses [differ] from those
of a sober person'" [citation omitted]), or that such a
proposition would go to the weight of the evidence and not its
sufficiency, as we have recounted, there was abundant additional
evidence of the defendant's impairment in addition to the field
sobriety tests.
Finally, the defendant claims that the jury were required
to speculate that her poor performance on the field sobriety 15
tests was caused by alcohol intoxication rather than her
arthritis. "However, to indulge this argument, we would have to
view the evidence in the light least favorable to the
Commonwealth, which, of course, we cannot do." Commonwealth v.
Arias, 78 Mass. App. Ct. 429, 435 (2010). See Commonwealth v.
James, 30 Mass. App. Ct. 490, 491 n.2 (1991). See also
Palmariello v. Superintendent of Mass. Correctional Inst.
Norfolk, 873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S.
865 (1989) (appellate court not obligated to "reread the record
from a [defendant's] perspective"). The record evidence, and
the reasonable inferences drawn therefrom, properly supported
the defendant's conviction.
Judgment affirmed. AGNES, J. (dissenting). I write separately not because the
evidence heard by the jury was insufficient to support the
jury's verdict that the defendant, Judith A. Gallagher, was
operating her motor vehicle on a public way while under the
influence of alcohol (OUI) in violation of G. L. c. 90, § 24.
The evidence of the defendant's guilt was sufficient. The
question before us, however, is different. We are asked to
determine whether prejudice resulted from the judge's error in
allowing the State police Trooper John Haidousis, the sole
witness at trial, to give his opinion about the defendant's
guilt, over the defendant's objection and in violation of
Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013),1 by stating
that she was "impaired to operate a motor vehicle." The
standard we must follow requires that we consider what effect,
if any, the error had on the minds of the jurors, not on our
own, in relation to the evidence as a whole. Kotteakos v.
United States, 328 U.S. 750, 764 (1946). In particular, the
standard is this:
"[I]f, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very
1 "The balance we reach is that a lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely." Canty, supra at 544. 2
slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of [the Legislature] . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected."
Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445-446 (1983),
quoting from Kotteakos, supra at 764-765.
One way to measure whether the error in admitting lay
witness opinion testimony, like that involved in this case, was
prejudicial error is to compare the facts in the instant case to
those in Canty, where the Supreme Judicial Court concluded that
the error was nonprejudicial. 466 Mass. at 545. The
comparison, in my view, does not assist the Commonwealth. In
Canty, the court described the evidence of the defendant's guilt
as "overwhelming" based on the following factors: (1) the
officer's observations of the defendant's "erratic driving," (2)
the defendant's inability to put his vehicle into "park" when
directed to do so by the officer, (3) the defendant's difficulty
in retrieving his identification from his wallet, (4) the
defendant's "poor" performance on two field sobriety tests, (5)
the defendant's admission that he had consumed four beers, and
(6) the discovery of a "half-empty" bottle of liquor in the
defendant's vehicle. Id. at 537, 545. In the present case, on 3
the other hand, the evidence, while sufficient to support a jury
verdict of guilty, was not overwhelming.
Here, the evidence was that the defendant arrived at a
State police OUI checkpoint on Route 33 in Chicopee at about
12:15 A.M. and was directed to a secondary location to speak to
Trooper Haidousis. She was the sole occupant of the vehicle.
She was told her to park her vehicle in a marked space in a
parking lot used by an adjoining business. The testimony was
that the defendant "parked crooked across the, uh, lines, not
directly in a space." In Canty, by contrast, a local police
officer was on a main street in a marked cruiser when he saw the
defendant's vehicle pass by and "come within four inches of
striking the curb." Id. at 536. The officer "followed the
motor vehicle for approximately three-quarters of a mile and
observed it cross over the white fog line on the shoulder of the
road and 'drift back' and cross the double yellow line at the
center of the road." Ibid. Additionally, in Canty, when the
officer activated the blue lights on his cruiser, the defendant
did not apply the brakes for fifteen to twenty seconds, and then
"traveled another fifteen to twenty seconds before pulling over
to the side of the road." Ibid.
In the present case, there is no evidence that the
defendant did not put her vehicle in park and turn off the
engine when directed to do so. In Canty, by contrast, the 4
defendant did not put his vehicle in park after he was pulled
over. Ibid. "Because the vehicle's reverse lights remained on,
[the police officer] used his cruiser's public address system to
instruct the driver to put the truck 'in park.' The reverse
lights remained on, so [the police officer] left his cruiser and
approached the defendant, who was alone in the motor vehicle,
again instructing him to put the truck 'into park.' The
defendant responded that it was not his vehicle." Ibid.
In Canty, the court noted that "[w]hen [the police officer]
asked the defendant for his license and registration, the
defendant had difficulty retrieving his identification from his
wallet." Id. at 537. In the present case, the defendant had no
difficulty in producing her license for Trooper Haidousis.
In Canty, the defendant was asked to perform two of the
three field sobriety tests performed by the defendant in the
present case: the "nine-step walk and turn" test and the "one-
leg stand" test. Ibid. In Canty, the officer conducting the
tests testified that "[w]hen [the defendant] stepped out of the
vehicle, [he] tripped over his own feet and 'almost stumbled.'"
Ibid. When performing the nine-step walk and turn test, the
defendant in Canty "walked at a complete forty-five degree
angle, almost like a severe wind was blowing him to the side."
Ibid. When performing the one-leg stand test, "the defendant
put his foot down three separate times, and raised his arms to 5
maintain balance." Ibid. In the present case, there is no
evidence that the defendant had any difficulty exiting from her
vehicle. The trooper testified that the defendant followed his
instructions by assuming the correct position and not beginning
until instructed to do so. In performing the test, the
defendant took seven steps forward and six steps back although
she stepped off of the line and did not keep her feet heel to
toe. When performing the one-leg stand, which requires that a
person hold one leg six inches off of the ground and, while
keeping her arms by her sides, count aloud from one one-thousand
to thirty one-thousand, the defendant put her foot down after
about eleven seconds and did not count aloud. There also is
evidence that the defendant successfully completed a third test
which the trooper described as being able to recite the
alphabet.
In terms of similarities between the facts in Canty and
those in the present case, there is evidence that both
defendants admitted to having consumed alcohol (three beers for
the defendant here and four beers for the defendant in Canty)
and both exhibited physical signs often associated with
intoxication (odor of an alcoholic beverage coming from their
person and bloodshot eyes).2 However, in Canty, the court noted
2 In the present case, the trooper also testified that the defendant's speech was "a bit slurred." When asked for details, 6
that a "half-empty" bottle of liquor was found on the floor of
the front passenger seat of the defendant's vehicle. Ibid.
There is no precise formula for measuring what effect, if
any, erroneously admitted evidence has on the minds of jurors.
However, using the facts in Canty as a guide, the present case
is not one in which there was overwhelming evidence that the
defendant operated her vehicle while impaired by alcohol.
Considering that the evidence portion of the trial consisted of
only thirty-seven pages of transcript, made up entirely of the
testimony of Trooper Haidousis, I am unable to say with
conviction that his erroneously admitted opinion that the
defendant was "impaired to operate a motor vehicle" either had
no effect or only a slight effect on the minds of the jury.3
the trooper could not recall any specific words that were slurred by the defendant, and did not observe any evidence of soiled clothing, fumbling, bruises, or scratches. 3 As a result of a stipulation by the parties, the only issue before the jury was whether the Commonwealth proved beyond a reasonable doubt that the defendant was under the influence of alcohol when operating her vehicle. The judge instructed the jury on the basis of the model jury instruction that "[a] person is under the influence of alcohol, if she has consumed enough alcohol to reduce her ability to operate a motor vehicle safely, by decreasing her alertness, judgment and ability to respond promptly. It means that a person has consumed enough alcohol to reduce her mental clarity, self-control and reflexes and thereby left her with a reduced ability to drive safely. The Commonwealth is not required to prove that [the defendant] actually drove in an unsafe or erratic manner, but is required to prove that her ability to drive safely was diminished by alcohol." The judge appropriately added that the jury may "rely on [their] own experience and common sense about the effects of 7
See, e.g., Commonwealth v. Federico, 425 Mass. 844, 853 (1997);
Commonwealth v. Quinn, 469 Mass. 641, 650 (2014).
There is another feature of this case that I believe
deserves attention. In Canty, the Supreme Judicial Court
reiterated the long-standing rule that police officers, like
other lay witnesses, may "offer their opinion of an individual's
sobriety." 466 Mass. at 540, citing Commonwealth v. Jones, 464
Mass. 16, 17 n.1 (2012) (police officer in prosecution for OUI
may testify to defendant's "apparent intoxication"). The court
explained, supra at 541, that the reason for this rule is that a
lay witness's opinion about another person's sobriety or
intoxication is based on reasoning from everyday life
experiences as opposed to the opinion of an expert witness,
which is based on scientific, technical, or other specialized
alcohol," and that the jury "should consider any believable evidence about the defendant's alleged consumption of alcohol, as well as her appearance, condition and behavior at that time." Finally, the judge told jurors that they "heard testimony of an opinion about [the defendant's] sobriety," and that they "may consider any opinion [they had] heard and accept it or reject it."
In Canty, 466 Mass. at 545, the court observed that the judge's instruction informing the jury that they could accept or reject any opinion testimony had a bearing on whether the erroneous admission of the police officer's opinion that the defendant's ability to drive was impaired by alcohol, i.e., an opinion on the ultimate issue, was prejudicial. If the police officer should not be allowed to give such an opinion, an instruction to the jury that they may accept or reject it hardly seems curative. 8
knowledge.4 If, as the Canty court explained, there is a
distinction between permissible lay witness opinion testimony by
a police officer about whether a driver is intoxicated and her
level of impairment in an OUI case, see Mass. G. Evid. § 701
(2017), and an expert witness opinion in an OUI case that is
based on "scientific, technical, or other specialized
knowledge," Mass. G. Evid. § 702 (2016), what are we to make of
the testimony by the State police trooper in this case that was
based on "standardized field sobriety test[s]"?
4 "We begin by noting that an opinion regarding a defendant's sobriety is a lay opinion, not an expert opinion, and the reasons for admitting a lay opinion are wholly different from the reasons for admitting an expert opinion. An expert's opinion is admissible only where an expert possesses scientific, technical, or other specialized knowledge that will assist the jury in understanding a fact in issue, and where the expert has applied reliable principles and methods to the facts of the case. . . . A lay opinion, in contrast, is admissible only where it is (a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge. . . . While an expert opinion is admissible only where it will help jurors interpret evidence that lies outside of common experience, . . . a lay opinion is admissible only where it lies within the realm of common experience, because a lay opinion is relevant only where, as with sobriety, the principal objective symptoms are so well known that we consider the lay opinion to have probative value. . . . Even where a witness has described the defendant's appearance, manner, and conduct (e.g., bloodshot eyes, slurred speech, and unsteady gait), a lay opinion by a percipient witness regarding the defendant's intoxication is still of probative value because such an opinion, especially as to the level of intoxication, may be shaped by observations too numerous or subtle to mention." Canty, supra at 541-542 (quotation marks omitted). 9
The bulk of the trooper's testimony with respect to the
defendant's impairment due to the consumption of alcohol
consisted of his explanation of the components of the field
sobriety tests and the defendant's performance on those tests.
There was no objection to this testimony. Indeed, there were
many questions asked on cross-examination about field sobriety
tests, including the trooper's training to look for "certain
clues," the "instructional phase" and the "performance phase" of
the tests, the "Standardized Field Sobriety Testing Manual," and
whether people over the age of sixty-five or those with back,
leg, or inner ear problems should take the tests.
The question I raise is not whether police officers, as
witnesses, should be singled out for special treatment simply
because they are law enforcement officers. See Commonwealth v.
Desmond, 345 Mass. 774, 774 (1963). And I do not suggest that
police officers should be prevented from or limited in
testifying about a person's "sense of balance, coordination, and
acuity of mind in understanding and following simple
instructions." Commonwealth v. Sands, 424 Mass. 184, 188
(1997). See Commonwealth v. Schutte, 52 Mass. App. Ct. 796,
800-801 (2001); Commonwealth v. Brown, 83 Mass. App. Ct. 772,
774 n.1 (2013). See also Commonwealth v. Brennan, 386 Mass.
772, 779 (1982) (field sobriety tests do not implicate privilege
against self-incrimination under Fifth Amendment to United 10
States Constitution or art. 12 of Massachusetts Declaration of
Rights because they do not force subject to reveal her
"knowledge or thoughts"). Instead, the question is whether
steps should be taken to ensure that lay witness opinion
testimony that a person is under the influence of alcohol is not
misunderstood by jurors as testimony based on scientific,
technical, or other specialized knowledge. See, e.g., United
States v. Horn, 185 F. Supp. 2d 530, 560 (D. Md. 2002). See
also Commonwealth v. A Juvenile, 21 Mass. App. Ct. 121, 125
(1985) (trial judges have discretion to fashion specific
instructions to assist jury in determining credibility of
classes of witnesses "provided these do not create imbalance, or
indicate the judge's belief or disbelief in the given witness").
In the present case, the judge instructed the jury that
they "may consider any opinion [they] have heard and accept it
or reject it." However, if the opinion by Trooper Haidousis was
inadmissible for the reasons explained in Canty, 466 Mass. at
544, this instruction was not accurate, and certainly not
calculated to inform the jury that the basis of the witness's
opinion was not scientific, technical, or other specialized
knowledge. Compare Mass. G. Evid. § 702 (2017) with Mass. G.
Evid. § 701 (2017). Perhaps consideration should be given to
the use of an instruction that informs the jury that a police
officer's opinion about a driver's performance on field sobriety 11
tests like those used in this case is not an expert opinion
based on scientific, technical, or other specialized knowledge
but, rather, testimony based on the officer's experience, which
the jury may accept or reject.5
5 See State v. Gracia, 51 Conn. App. 4, 19 (1998). In Gracia, an OUI case in which the nine-step walk and turn test and the one-leg stand test were administered to the defendant, the trial judge told the jury that "roadside sobriety tests were not scientific evidence, and that it should consider the observations made during the tests and use its common experience in determining whether the defendant was intoxicated." Ibid.
The police, of course, are permitted to videotape a driver's performance of field sobriety tests, which may be the most reliable evidence of a person's "sense of balance, coordination, and acuity of mind in understanding and following simple instructions." Sands, 424 Mass. at 188. See Commonwealth v. Mahoney, 400 Mass. 524, 528 (1987). At one time, some police departments routinely videotaped the booking process in OUI cases. See, e.g., Commonwealth v. Cameron, 25 Mass. App. Ct. 538, 543 (1988). See also Commonwealth v. Carey, 26 Mass. App. Ct. 339, 340 (1988) ("When relevant, videotapes have the virtue of presenting an accurate, vivid, and fair representation of the way people acted or spoke or how things looked when the tape was recorded"). Today, there is technology available to (and in some cases used by) the police that would permit the videotaping of a driver's performance of sobriety tests in the field.