Opinion
13-P-1533
01-12-2015
COMMONWEALTH v. KEVIN S. BROOMHEAD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of operating under the influence of alcohol (third offense). The sole issue on appeal is whether the arresting officer's improper testimony that in his opinion the defendant was operating his motor vehicle while under the influence of alcohol warrants reversal. We affirm.
The defendant was also convicted of negligent operation of a motor vehicle, but makes no argument as to that conviction on appeal.
Background. We need not summarize in detail all the evidence presented at trial. Suffice it to say that the defendant's failure to stop for State Trooper Furtado when initially signaled to do so, the defendant's operation of his motor vehicle in an erratic manner causing it to weave back and forth, the strong odor of alcohol emanating from the defendant, the defendant's glassy and bloodshot eyes and slurred speech, the defendant's erratic behavior while being questioned by the trooper, and the defendant failing field sobriety tests, lead us to the conclusion that the Commonwealth presented a very strong case.
At issue in this case is the following improper testimony of Trooper Furtado: "I formed the opinion that [the defendant] was operating under the influence of an intoxicating liquor." This testimony was not in response to the question posed by the prosecutor ("And what happened next?"), and no objection was made to its admission.
Discussion. There is no dispute that a witness may not testify to the ultimate issue that is reserved for the judgment of the jury. Commonwealth v. Canty, 466 Mass. 535, 542-544 (2013). Because there was no objection to the testimony, we analyze the error to determine whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001). We conclude that it did not. Not only did the Commonwealth present a very strong case against the defendant, but also the judge instructed the jury that it was their decision alone to determine whether the defendant was under the influence of intoxicating liquor. Viewed in this light, we see no substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 12, 2015.