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
22-P-114
COMMONWEALTH
vs.
GIANCARLO D. MAZARIEGOS-PEREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Giancarlo D. Mazariegos-Perez, was convicted of
operating a motor vehicle while under the influence of liquor
(OUI). 1 On appeal, he contends that the admission of a trooper's
opinion testimony, and the prosecutor's use of that testimony in
closing argument, constituted reversible error. We affirm.
Background. On January 29, 2021, at approximately 12:19
A.M., Massachusetts State Police Trooper Harold Sousa was
dispatched to a two-car crash on Route 16 in Everett. On
arrival he observed a Toyota Corolla "with substantial front-end
damage" located behind a Ford Fusion "with substantial rear-end
1 The defendant was also charged with negligent operation of a motor vehicle. Prior to the start of trial, the judge dismissed that charge. The defendant was found not responsible for a civil motor vehicle infraction. damage." The front of the hood on the Toyota "was bent in; the
grill was severely damaged." Trooper Sousa noticed that the
operator of the Toyota, later identified as the defendant, "was
emitting the odor of an alcoholic beverage, and his eyes were
bloodshot and glassy." He further noted that the defendant "was
difficult to understand because his speech was slurred." The
defendant admitted that "he had two drinks to celebrate . . .
graduating IT School."
After speaking with the operators of both vehicles, Trooper
Sousa asked the defendant to perform field sobriety tests.
Trooper Sousa first explained and then physically demonstrated
for the defendant the nine-step walk and turn test. The
defendant took the test. He walked sixteen steps instead of
nine, "missed heel-to-toe on every step, essentially taking
normal strides" in contravention of Trooper Sousa's instructions
and demonstration, shuffled his feet on the turn, took twelve
steps instead of nine on the return, and "missed heel-to-toe on
every step" again. Next, Trooper Sousa explained and
demonstrated for the defendant the one-leg stand test. The
defendant "raised his right foot six inches above the ground,
counted to three, and then put it down forward, taking somewhat
of a step, and then raised his left foot, and . . . started to
count again." After three attempts, the defendant "finally did
complete the test as instructed," but "he swayed side-to-side,
2 and put his foot down twice," and "almost fell over." Based on
his observations of the defendant, including the performance on
the field sobriety tests, Trooper Sousa formed the opinion that
the defendant was under the influence of alcohol. He then
placed the defendant in the police cruiser and transported him
to the police barracks. On opening the door to the cruiser to
escort the defendant to the booking room, Trooper Sousa noted an
odor of an alcoholic beverage that was not present "before the
defendant got in the car."
During the booking process, the defendant became angry,
cursed at Trooper Sousa, told Trooper Sousa that "this is taking
way too long," and asked "[a]re you doing this on purpose, or
are you just an idiot?" He then stated, "[y]ou're probably just
an idiot." Later during the booking process, the defendant
cried and stated that "he knew he had messed up, but he only had
two beers." "During booking," Trooper Sousa continued to note
an odor of an alcoholic beverage coming from the defendant, as
well as other signs of impairment.
Discussion. On direct examination, Trooper Sousa testified
that while at the State police academy, he received one week of
training related to field sobriety testing and the investigation
of people suspected of driving under the influence of alcohol.
The testimony was brief, and the defendant did not object to it.
Later in the trial, Trooper Sousa was asked whether he had
3 formed an opinion regarding the defendant's sobriety. Over the
defendant's objection, Trooper Sousa responded that based on his
observations of the defendant at the scene as well as the
defendant's performance on the field sobriety tests, he formed
the opinion that the defendant "was under the influence of an
alcoholic beverage."
The defendant argues, for the first time, that in eliciting
Trooper Sousa's specialized training and experience in the field
of OUI investigations, the prosecutor effectively transformed
the trooper into an expert witness in the eyes of the jury. 2 He
further contends that the judge did not provide the jury with
adequate instructions on the proper use of the trooper's
"expert" opinion, and thus the conviction must be vacated.
Where the defendant did not raise the issue of improper expert
testimony at trial, and did not object to the judge's jury
instructions at trial, we review to determine if there was
error, and if so, whether it created a substantial risk of a
2 The defendant did not object to Trooper Sousa's testimony regarding his training and experience, did not state the basis for his objection to Trooper Sousa's opinion as to the defendant's sobriety, and did not move to strike Trooper Sousa's testimony. The objection to the question and testimony now challenged on appeal did not preserve the issue of alleged "improper expert testimony," raised for the first time on appeal. See Commonwealth v. Bonds, 445 Mass. 821, 828 (2006) ("We have consistently interpreted Mass. R. Crim. P. 22, 378 Mass. 892 [1979], to preserve appellate rights only when an objection is made in a form or context that reveals the objection's basis").
4 miscarriage of justice. See Commonwealth v. Moreno, 102 Mass.
App. Ct. 321, 324 (2023), citing Commonwealth v. Bonds, 445
Mass. 821, 828 (2006).
"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 his apparent intoxication." Commonwealth v. Canty,
466 Mass. 535, 541 (2013), quoting Commonwealth v. Jones, 464
Mass. 16, 17 n.1 (2012). Here, the question called for Trooper
Sousa to offer an admissible lay opinion, and thus the testimony
was permissible. See Moreno, 102 Mass. App. Ct. at 325-326.
Cf. Canty, supra.
As to the defendant's claim that the judge's instructions
were somehow inadequate, the defendant did not object to any
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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
22-P-114
COMMONWEALTH
vs.
GIANCARLO D. MAZARIEGOS-PEREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, Giancarlo D. Mazariegos-Perez, was convicted of
operating a motor vehicle while under the influence of liquor
(OUI). 1 On appeal, he contends that the admission of a trooper's
opinion testimony, and the prosecutor's use of that testimony in
closing argument, constituted reversible error. We affirm.
Background. On January 29, 2021, at approximately 12:19
A.M., Massachusetts State Police Trooper Harold Sousa was
dispatched to a two-car crash on Route 16 in Everett. On
arrival he observed a Toyota Corolla "with substantial front-end
damage" located behind a Ford Fusion "with substantial rear-end
1 The defendant was also charged with negligent operation of a motor vehicle. Prior to the start of trial, the judge dismissed that charge. The defendant was found not responsible for a civil motor vehicle infraction. damage." The front of the hood on the Toyota "was bent in; the
grill was severely damaged." Trooper Sousa noticed that the
operator of the Toyota, later identified as the defendant, "was
emitting the odor of an alcoholic beverage, and his eyes were
bloodshot and glassy." He further noted that the defendant "was
difficult to understand because his speech was slurred." The
defendant admitted that "he had two drinks to celebrate . . .
graduating IT School."
After speaking with the operators of both vehicles, Trooper
Sousa asked the defendant to perform field sobriety tests.
Trooper Sousa first explained and then physically demonstrated
for the defendant the nine-step walk and turn test. The
defendant took the test. He walked sixteen steps instead of
nine, "missed heel-to-toe on every step, essentially taking
normal strides" in contravention of Trooper Sousa's instructions
and demonstration, shuffled his feet on the turn, took twelve
steps instead of nine on the return, and "missed heel-to-toe on
every step" again. Next, Trooper Sousa explained and
demonstrated for the defendant the one-leg stand test. The
defendant "raised his right foot six inches above the ground,
counted to three, and then put it down forward, taking somewhat
of a step, and then raised his left foot, and . . . started to
count again." After three attempts, the defendant "finally did
complete the test as instructed," but "he swayed side-to-side,
2 and put his foot down twice," and "almost fell over." Based on
his observations of the defendant, including the performance on
the field sobriety tests, Trooper Sousa formed the opinion that
the defendant was under the influence of alcohol. He then
placed the defendant in the police cruiser and transported him
to the police barracks. On opening the door to the cruiser to
escort the defendant to the booking room, Trooper Sousa noted an
odor of an alcoholic beverage that was not present "before the
defendant got in the car."
During the booking process, the defendant became angry,
cursed at Trooper Sousa, told Trooper Sousa that "this is taking
way too long," and asked "[a]re you doing this on purpose, or
are you just an idiot?" He then stated, "[y]ou're probably just
an idiot." Later during the booking process, the defendant
cried and stated that "he knew he had messed up, but he only had
two beers." "During booking," Trooper Sousa continued to note
an odor of an alcoholic beverage coming from the defendant, as
well as other signs of impairment.
Discussion. On direct examination, Trooper Sousa testified
that while at the State police academy, he received one week of
training related to field sobriety testing and the investigation
of people suspected of driving under the influence of alcohol.
The testimony was brief, and the defendant did not object to it.
Later in the trial, Trooper Sousa was asked whether he had
3 formed an opinion regarding the defendant's sobriety. Over the
defendant's objection, Trooper Sousa responded that based on his
observations of the defendant at the scene as well as the
defendant's performance on the field sobriety tests, he formed
the opinion that the defendant "was under the influence of an
alcoholic beverage."
The defendant argues, for the first time, that in eliciting
Trooper Sousa's specialized training and experience in the field
of OUI investigations, the prosecutor effectively transformed
the trooper into an expert witness in the eyes of the jury. 2 He
further contends that the judge did not provide the jury with
adequate instructions on the proper use of the trooper's
"expert" opinion, and thus the conviction must be vacated.
Where the defendant did not raise the issue of improper expert
testimony at trial, and did not object to the judge's jury
instructions at trial, we review to determine if there was
error, and if so, whether it created a substantial risk of a
2 The defendant did not object to Trooper Sousa's testimony regarding his training and experience, did not state the basis for his objection to Trooper Sousa's opinion as to the defendant's sobriety, and did not move to strike Trooper Sousa's testimony. The objection to the question and testimony now challenged on appeal did not preserve the issue of alleged "improper expert testimony," raised for the first time on appeal. See Commonwealth v. Bonds, 445 Mass. 821, 828 (2006) ("We have consistently interpreted Mass. R. Crim. P. 22, 378 Mass. 892 [1979], to preserve appellate rights only when an objection is made in a form or context that reveals the objection's basis").
4 miscarriage of justice. See Commonwealth v. Moreno, 102 Mass.
App. Ct. 321, 324 (2023), citing Commonwealth v. Bonds, 445
Mass. 821, 828 (2006).
"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 his apparent intoxication." Commonwealth v. Canty,
466 Mass. 535, 541 (2013), quoting Commonwealth v. Jones, 464
Mass. 16, 17 n.1 (2012). Here, the question called for Trooper
Sousa to offer an admissible lay opinion, and thus the testimony
was permissible. See Moreno, 102 Mass. App. Ct. at 325-326.
Cf. Canty, supra.
As to the defendant's claim that the judge's instructions
were somehow inadequate, the defendant did not object to any
jury instructions, including the judge's thorough instructions
regarding opinion testimony and field sobriety testing. We
further note that the defendant made no request for any
instructions regarding expert witness testimony. Trooper Sousa
was certainly permitted to testify about his training and
experience so that the jury could conclude that the field
sobriety tests were administered properly by someone who knew
how to administer them. Had the defendant requested an
instruction to the effect that the officer's opinion regarding
5 the defendant's level of sobriety or intoxication was not an
expert opinion based on scientific, technical, or other
specialized knowledge, but, rather, was a lay opinion that the
jury could accept, accept in part, or reject -- as with any
other admissible lay opinion testimony -- the judge would have
been warranted in providing it. Nonetheless, the judge's
failure to give one sua sponte did not create a substantial risk
of a miscarriage of justice because the case against the
defendant was strong: It included his rear-ending another car,
smelling of alcohol, having glassy eyes and slurred speech, and
failing two field sobriety tests; as well as his swaying, almost
falling down, and labile moods. We further note that any risk
of prejudice to the defendant 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." See
Canty, 466 Mass. at 545.
As to the prosecutor's closing argument, even assuming
arguendo that the prosecutor should not have referenced Trooper
Sousa's training and experience, we discern no substantial risk
of a miscarriage of justice. 3 Again, the evidence in the case
3 The defendant did not object to the prosecutor's reference in closing argument to Trooper Sousa's training and experience.
6 was strong. See Commonwealth v. Saulnier, 84 Mass. App. Ct.
603, 607 (2013). In addition, the judge repeatedly and properly
instructed the jury to rely on their own common sense and
experience, including their common sense and experience
concerning the effects of alcohol. See Commonwealth v. Sands,
424 Mass. 184, 188 (1997) ("A lay juror understands that
intoxication leads to diminished balance, coordination, and
mental acuity from common experience and knowledge"). Finally,
the judge instructed the jury four separate times that closing
arguments are not evidence and cannot be considered when the
jury is weighing evidence. The instructions were comprehensive
and clear, and we presume the jury followed them. See
Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013).
Accordingly, there was no substantial risk of a miscarriage of
justice based on the alleged improper opinion testimony.
Judgment affirmed.
By the Court (Rubin, Neyman & Walsh, JJ. 4),
Clerk
Entered: October 19, 2023.
4 The panelists are listed in order of seniority.