State v. Cunningham

1997 ME 60, 691 A.2d 1219, 1997 Me. LEXIS 64
CourtSupreme Judicial Court of Maine
DecidedApril 2, 1997
StatusPublished
Cited by5 cases

This text of 1997 ME 60 (State v. Cunningham) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cunningham, 1997 ME 60, 691 A.2d 1219, 1997 Me. LEXIS 64 (Me. 1997).

Opinion

CLIFFORD, Justice.

[¶ 1] Dale Cunningham appeals from judgments entered in the Superior Court (Penobscot, Kravchuk, J.) following jury verdicts finding him guilty of operating a motor vehicle after the revocation of his license as a habitual offender (Class C) in violation of 29-A M.R.S.A. § 2557 (1996)1 and operating a motor vehicle under the influence of alcohol (Class D) in violation of 29-A M.R.S.A 2411 (1996).2 On appeal, Cunningham argues that the court erred in admitting certain opinion testimony of the arresting officer and challenges the sufficiency of the evidence to support the verdicts. Athough we agree with Cunningham that the court erred in admitting the opinion evidence of the arresting officer, we conclude that the error is harmless. We disagree with Cunningham’s additional contention that the evidence is insufficient to support the verdict. Accordingly, we affirm the judgments.

[¶ 2] Officer Randy Dellaire of the Dexter Police department was on patrol with another officer3 on October 1, 1995. At approximately 12:15 a.m., a vehicle approached from the opposite direction with its lights on high beam. When the vehicle passed without dimming its headlights, Dellaire decided to stop the vehicle and turned around to do so. After turning his cruiser around, Dellaire observed the vehicle turning left into the parking lot of a gas station. Dellaire testified that something obstructed his view for one to two seconds. When the officer arrived in the lot, he saw the car about sixty to seventy feet in front of him, and one individ[1221]*1221ual was standing beside the driver’s side door with the door open. As Dellaire approached the individual, he appeared unsteady on his feet. The individual pointed behind the gas station and told Dellaire to “go get the driver.” The man, who was later identified as Cunningham, told the officer that another man named Jackson had run behind the building, but the officers were unable to find anyone after briefly searching. Dellaire, believing Cunningham to be the operator of the car and observing his slurred speech, had Cunningham perform field sobriety tests. Cunningham subsequently was placed under arrest and charged with operating after habitual offender revocation and OUI.

[¶3] Before trial, Cunningham moved in limine to exclude any opinion from Dellaire as to whether Cunningham could have gotten from the passenger side of the car to outside the driver’s side in the time that the vehicle was out of the officer’s sight. The court concluded that testimony as to whether Del-laire believed that Cunningham was the operator of the vehicle would be improper but that the officer could give a lay opinion as to his observations and what could be done in a certain amount of time. At trial, Dellaire testified that “it just is impossible for somebody to — to exit the vehicle, close the door, run around the front of the vehicle and back to the driver’s side and start walking back the other way in just a couple seconds.” In a non-responsive answer, Dellaire also said that it was plausible to him that Cunningham was operating the vehicle. The court struck this answer, however, Cunningham did not request the court to give a limiting instruction to the jury. Cunningham testified and denied that he was the operator of the vehicle.4 The jury subsequently found Cunningham guilty of both charges.

I.

[¶ 4] Cunningham contends that the court abused its discretion in admitting the officer’s opinion as to whether Cunningham could have gotten out of the passenger side and moved to the opposite side of the car in the span of time that the officer’s view was obstructed. Cunningham argues that the officer’s opinion invaded the province of the jury. We review questions of opinion testimony for an abuse of discretion. Stanley v. DeCesere, 540 A.2d 767, 770 (Me.1988); Pierce v. State, 463 A.2d 756, 760 (Me.1983).

M.R.Evid. 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

An opinion is only admissible if it is based on the witness’s perception and is helpful to the jury. Opinion evidence deemed helpful “has traditionally been admitted out of necessity as ‘short-hand rendering of the facts.’ Speed, identity, age, size, quantity, etc., under appropriate circumstances fall within this rule.” State v. Bowen, 366 A.2d 174, 177 (Me.1976). These opinions are frequently admitted “because there is no way to convey to the jury what the witness observed except in the form of an opinion.” Field & Murray, Maine Evidence § 701.1 at 7-2 (1992). “It may be necessary to allow such evidence in order not to risk its loss.” State v. Gray, 731 S.W.2d 275, 285 (Mo.Ct.App.1987). Thus, we have allowed the admission of opinion evidence relating to the speed of a car, a person’s appearance, or what a defendant appeared to be doing under certain circumstances. See State v. Berube, 669 A.2d 170, 172 (Me.1995) (court permitted three eye witnesses to testify as to speed of motorcycle when they viewed it from stationary vantage points in relation to ear following it, all had previously viewed speeding motorcycles, and [1222]*1222each had familiarity with motorcycles); State v. Lagasse, 410 A.2d 537, 543-4 (Me.1980) (testimony that young woman’s face looked like it had been slapped); State v. Pottle, 384 A.2d 55, 56 (Me.1978) (testimony that witness saw defendant carrying what looked like a gun). Admission of lay opinion testimony may be proper because, in some situations, the only way that the witness can describe to the jury what factually happened is to give an opinion.

[¶ 5] In this instance, the opinion went beyond the ambit of the rule and was unhelpful to the jury. A lay opinion is inadmissible when “by the mere words and gestures of the witness the data he has observed can be so reproduced that the jurors have those data as jully and exactly as the witness had them at the time he formed his opinion.” VII John Henry Wigmore, Wigmore on Evidence § 1924 at 32 (1978 Chadbourne Rev.).5 We have said that “ordinarily a lay witness cannot, under the guise of an opinion, give his deductive conclusion from what he saw and found on visiting the scene of an accident after the accident has happened.” Emery Waterhouse Co. v. Lea, 467 A.2d 986, 992 (Me.1983).

[¶ 6] Here, Dellaire was unable to testify based on his own knowledge that Cunningham was the operator of the car because the officer never actually saw the driver.

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Bluebook (online)
1997 ME 60, 691 A.2d 1219, 1997 Me. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cunningham-me-1997.