Opinion
15-P-1593
03-29-2017
COMMONWEALTH v. Jose H. CAMPOSECO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions (1) by a District Court jury of operating under the influence of intoxicating liquor, and (2) after a bench trial of being a subsequent offender. He argues error in the admission of opinion evidence by a police officer, and that his subsequent offender conviction must be vacated because there was no evidence that an interpreter was present for the prior conviction. We affirm.
Background . Around 7:00 p.m. on September 28, 2014, Helen Roach was driving east on Route 62 in Berlin when she observed a vehicle swerving back and forth across the center line. Roach saw westbound traffic pulling off to the side of the road to avoid the vehicle. The vehicle crossed the line fifteen to eighteen times within the span of one to one and one-half miles. It was traveling slowly and constantly braking. Roach called the police, and Hudson police Officer Joseph Kerrigan responded.
Kerrigan also observed the vehicle being operated erratically. He initiated a stop and approached the sole occupant and driver, whom he identified as the defendant. Kerrigan could smell a strong odor of alcohol on the defendant's breath, and he noticed that the defendant's eyes were red and bloodshot. The defendant's speech was slurred as he produced a license and registration. In English, the defendant told Kerrigan that he was at his friend's house and "had a couple of beers." The defendant was unsteady on his feet and swaying from side to side after he stepped out of the car. Kerrigan asked the defendant if he understood English, and the defendant responded that he did.
After explaining to the jury the various field sobriety tests that he had administered, Kerrigan testified that the defendant performed "very badly" and "failed the field test[s.]" Kerrigan formed the opinion that the defendant was intoxicated and placed him under arrest. There were no objections to this testimony. A Hudson police booking officer testified that he observed the defendant's glassy eyes and "immediately detected a strong odor of an alcoholic beverage" when the defendant entered the booking area. The booking officer spoke to the defendant in English, and the defendant responded appropriately in English.
On September 29, 2014, a criminal complaint issued from the Marlborough District Court charging the defendant with operating under the influence of intoxicating liquor (subsequent offense), operating a motor vehicle with a suspended license, and a marked lanes violation. The count charging unlicensed operation was dismissed without objection, and, following a one-day jury trial, the defendant was convicted of operating under the influence of liquor. At the bench trial on the subsequent offender portion, the Commonwealth introduced certified documents showing that, in 1996, the defendant admitted to sufficient facts to warrant a finding of guilt on a charge of operating under the influence of liquor. The Commonwealth introduced a waiver of counsel form in connection with the 1996 case, along with an "acknowledgment of colloquy" in which the defendant stated, and the judge confirmed, that the defendant "waived the right to a jury trial in an informed, intelligent and voluntary manner." The defendant was convicted as a subsequent offender and found responsible for the civil infraction.
The defendant makes no argument on appeal regarding the civil infraction.
Discussion . 1. Kerrigan's testimony . The defendant argues that Kerrigan's opinion that he "failed" the field sobriety tests should have been excluded because it "enhance[d] [Kerrigan's] lay testimony with scientific and technical credibility even though it [was] based on his ordinary observations." Lay testimony based upon ordinary observations is admissible. Commonwealth v. Jones , 464 Mass. 16, 17 n.1 (2012). Kerrigan described the field sobriety tests that he administered that night in order to measure the defendant's "sense of balance, coordination, and acuity of mind in understanding and following simple instructions"; "[a] lay juror understands that intoxication leads to diminished balance, coordination, and mental acuity from experience and knowledge." Commonwealth v. Sands , 424 Mass. 184, 188 (1997). There was no error in admitting Kerrigan's conclusions regarding the defendant's performance.
Even if there was error, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Jones , supra at 18 ("Where a defendant does not preserve a claim of error at trial, we review the alleged error to determine whether there is a substantial risk of a miscarriage of justice"). Setting aside Kerrigan's testimony about his conclusions, Roach and Kerrigan testified to the defendant's erratic operation, "[two] police officer[s] testified to the odor of alcohol coming from the defendant," and Kerrigan testified to the defendant's "slurred speech, unsteadiness when standing, and glassy eyes." Commonwealth v. AdonSoto , 475 Mass. 497, 510 (2016). "[T]he case against the defendant was virtually irrefutable." Commonwealth v. Alphas , 430 Mass. 8, 14 (1999). The judge instructed the jury that it was for them "to determine whether to rely on" evidence that the defendant performed field exercises and "to decide if those tests demonstrate [that] the defendant's ability to operate a motor vehicle safely was diminished"; "[s]ince the evidence was properly admitted, we presume that the ... limiting instruction was sufficient to cure any undue prejudice." Commonwealth v. Hanlon , 44 Mass. App. Ct. 810, 822 (1998).
2. Subsequent offense . Next, the defendant argues that his conviction as a subsequent offender must be vacated because there is no evidence that an interpreter was present in 1996 when he pleaded guilty to sufficient facts to warrant a finding of guilty of operating while under the influence of liquor. He bears the burden "to rebut the presumption that prior convictions are valid." Commonwealth v. Quinones , 414 Mass. 423, 432 n.7 (1993).
"There can be no disagreement that the defendant was aware of the basis of [this] claim since his sentencing in 19[96], yet" there is no evidence that he has moved for relief from the consequences of his plea in that case. Commonwealth v. Simmons , 448 Mass. 687, 690 (2007).
"By statute, ‘[a] non-English speaker ... shall have a right to the assistance of a qualified interpreter.’ " Commonwealth v. Vargas , 475 Mass. 338, 355 (2016), quoting from G. L. c. 221C, § 2. " ‘Non-English speaker’ is defined as ‘a person who cannot speak or understand, or has difficulty in speaking or understanding, the English language, because he uses only or primarily a spoken language other than English.’ " Ibid ., quoting from G. L. c. 221C, § 1. The defendant "bears the burden of proving that [he] was a ‘non-English speaker’ " in 1996. Id . at 355-356.
The judge was not required to credit the defendant's evidence on this point. Two police officers testified that the defendant responded to their questions in English and stated that he understood English. The defendant's expert testified that the defendant has been in the United States "a total of fourteen years," and that people's language abilities "generally improve" the longer they live in the country. The expert acknowledged that defendants "have every incentive to fail" his proficiency tests in furtherance of a language-based defense. There was no evidence from the 1996 plea judge, for example, or from the District Court clerk's office regarding interpreter staffing levels, and the 1996 docket sheet does not "clearly indicate[ ] that a Spanish interpreter was required." Commonwealth v. Gautreaux , 458 Mass. 741, 755 (2011). We see no error in the judge's conclusion that the defendant "failed to rebut the presumption that the plea hearing was conducted correctly." Id . at 754.
Dr. Michael O'Laughlin, director of the interpreter training program at Boston University, testified, based upon a May, 2015, interview with the defendant, that the defendant cannot read English and his understanding of spoken English is limited. "[I]n this case where a person is living in the United States" for over fourteen years, O'Laughlin believed that his "language ability would generally improve and not ... become worse in that period." Thus, if the defendant "[was] unable to speak or understand English in 2015, he could not have understood English in 1996."
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Judgments affirmed .