Opinion
21-P-549
03-31-2022
COMMONWEALTH v. Najeeb AL-SAHOUM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of operating a motor vehicle while under the influence of marijuana. On appeal he argues that the judge erred by allowing officers to testify about the effects that marijuana has on a person and that there was insufficient evidence to sustain his conviction. We affirm.
The defendant was also convicted of negligent operation of a motor vehicle, but he raises no argument as to that conviction on appeal. A third conviction of carrying a dangerous weapon, entered pursuant to a plea, was placed on file.
We summarize the evidence, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At approximately 10:30 P.M. on April 12, 2017, a 911 caller reported seeing a car swerving out of its lane on a two-lane road in Sherborn. Sherborn Police Sergeant Luke Tedstone was dispatched to the scene, where he saw the car swerve several times into oncoming traffic. After effectuating a stop, Tedstone approached the car with his body camera turned on. He observed the defendant in the driver's seat with ash on his chest and bloodshot and drooping eyes. He also noticed that the defendant was speaking slowly and that there was an odor of burnt marijuana in the car. When asked whether he had smoked marijuana, the defendant admitted to doing so four or five hours earlier.
The defendant stipulated that he was driving the car.
Tedstone ordered the defendant out of the car to perform roadside assessments. The defendant stumbled as he exited, using the door as a brace. During the assessments the defendant displayed a lack of balance and an inability to walk in a straight line or stand on one leg. He also swayed back and forth and at one point started to fall backwards. (Tedstone and another officer who had arrived on scene observed that the defendant's eyes were bloodshot and drooping, his speech was slow and slurred, and he appeared to have difficulty staying awake. The defendant stated that he had taken a prescription pill around 5 P.M. to help him sleep and acknowledged it was a bad idea to drive.
Tedstone placed the defendant under arrest. A third officer then inventoried the car and found marijuana and grinders in the center console.
At trial, over the defendant's objections, the judge permitted all three officers who were at the scene to testify about their past experiences with people who had consumed marijuana. The defendant argues that this was error -- specifically that the officers' testimony was improper lay opinion testimony under Commonwealth v. Gerhardt, 477 Mass. 775 (2017). We disagree. Gerhardt holds that a lay witness may not offer an opinion as to "what ... physical characteristics indicate marijuana intoxication" or "as to the defendant's sobriety or intoxication." Id. at 786. The officers here did not give either opinion. While they testified to their observations of the signs and symptoms of people who had consumed marijuana, they did not further opine that those signs and symptoms were indicative of marijuana intoxication. And at no point in their testimony did the officers opine about the defendant's sobriety or intoxication. Instead, the ultimate issue of impairment was properly left to the judge as trier of fact, who was permitted to "use [his] common sense in evaluating whether the Commonwealth introduced sufficient evidence to satisfy its burden of proof." Id. at 787.
The defendant also contends that the judge ran afoul of Gerhardt by "rel[ying] on what repeatedly were referred to at trial as field sobriety ‘tests.’ " The defendant does not appear to contest that evidence relating to a driver's performance on a roadside assessment, while not "a definitive test of [marijuana] impairment," is still probative and should not be "excluded entirely from consideration by the finder of fact." Gerhardt, 477 Mass. at 783. Rather, we perceive the defendant's argument to be that, because the prosecutor and witnesses used the word "tests" and the judge did not correct their usage, we should assume that the judge gave undue weight to that evidence. The defendant cites no authority supporting his argument. While Gerhardt states that a witness should refer to "roadside assessments," instead of "tests," so as not to mislead a jury "that they function as scientific validation of a defendant's sobriety or intoxication," id. at 785, here, there was no jury, and the parties brought Gerhardt to the judge's attention. We must presume that "the trial judge correctly instructed himself" (quotations omitted). Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000).
Lastly, the evidence was sufficient to support the conviction. The defendant stipulated at trial that he was operating a motor vehicle on a public way, and he conceded, both at trial and on appeal, that he was impaired. His sole challenge is to the sufficiency of the evidence that he was impaired as a result of marijuana. The Commonwealth met its burden in this regard. The defendant admitted to consuming marijuana, Tedstone observed ash on the defendant's chest and an odor of burnt marijuana in the car, and the police recovered marijuana and grinders from the center console. Furthermore, two officers testified that the defendant had bloodshot and drooping eyes, slow and slurred speech, delayed responses, and trouble balancing. Tedstone's body camera footage, which was admitted in evidence and expressly relied on by the judge, corroborates the officers' observations. This evidence was sufficient to prove that the defendant was impaired by marijuana. That he may also have been impaired by a prescription drug is immaterial, as the Commonwealth only had to prove that marijuana was at least one cause of his impairment. See Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 74-75 (2010).
Judgments affirmed.