Opinion
10-P-1822
02-15-2012
COMMONWEALTH v. CRYSTAL L. CUNEO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Crystal L. Cuneo, appeals from her conviction in the District Court of operating a motor vehicle while under the influence of intoxicating liquor, G. L. c. 90, § 24. She argues that (1) the trial judge limited her right to present a defense by limiting the testimony of her sole witness; (2) the trial judge erred in allowing the arresting officer to testify about the purpose of sobriety tests and how a driver functions with divided attention; (3) in closing the prosecutor mischaracterized the defense's expert witness, prejudicing the jury; and (4) the trial judge erred in failing to give a jury instruction on equally inconsistent propositions. We affirm.
1 Of significance, the defendant was found guilty under both theories of the charge: .08 percent or greater and under the influence.
In the early morning hours of March 15, 2009, the defendant was stopped in her car by Trooper Aleksandro Fontes as part of a sobriety checkpoint in Lowell. During a brief conversation with the defendant, Trooper Fontes noted that she had glassy, bloodshot eyes and smelled of alcohol. When asked if she had been drinking anything, the defendant responded, '[A] few drinks.' The defendant then was asked to perform certain field sobriety tests, which she failed, and, later, to undergo a breathalyzer test, which indicated her blood alcohol level to be .09 percent. At trial, Trooper Fontes testified, among other things, to the appearance of the defendant, her failing the field sobriety tests, and the .09 percent breathalyzer reading.
The defense called a sole witness, toxicologist JoAnn Samson, to testify that breathalyzer results may be skewed depending on various medical and physical conditions, as well as machine error. The defense further sought to have Dr. Samson testify that red and glassy eyes are not a sign of intoxication, but the judge disallowed that testimony because the Commonwealth had not been notified of this proposed questioning, and the judge did not accept the underlying support for the opinion.
2 Notwithstanding the ruling, evidence was allowed that glassy and bloodshot eyes may be caused by factors other than intoxication.
Discussion. To prove operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth must prove beyond a reasonable doubt that (1) the defendant operated a motor vehicle, (2) upon a public way or place to which members of the public have access as invitees or licensees, (3) while she was under the influence of intoxicating liquor; conviction may be had under two separate routes: by the 'per se' method or by impaired operation. Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 20 (2011). Here, the defendant was convicted under both theories.
Because the defendant's claims do not involve her conviction under the per se theory, we do not address it. Even if we were to address the per se theory, the defendant would fare no better as no error was committed in the various rulings.
Concerning the expert witness, who was allowed to testify to the shortcomings of a breathalyzer machine or test, the judge did not err in disallowing testimony concerning the invalidity and lack of significance of bloodshot or glassy eyes. First and foremost, the Commonwealth was not given any advance notice of this portion of the testimony. As such, the judge acted within his discretion in disallowing it (especially because the defense did not proffer any alternative solutions). Furthermore, if counsel sought to attack the scientific validity of such evidence, the proper method was via a pretrial Lanigan-Canavan motion, which was not made here. Even if counsel decided to merely attack the trooper's conclusions in this area via expert evidence, '[a] judge has wide discretion in qualifying a witness to offer an expert opinion on a particular question, . . . and [the judge's] determination will not be upset on appeal if any reasonable basis appears for it.' Commonwealth v. Pytou Heang, 458 Mass. 827, 845 (2011), quoting from Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990). See Mass. G. Evid. § 702 (2011). The judge here provided such a basis in that inadequate scientific support was proffered to support the opinion. The judge acted within his discretion in disallowing the testimony.
3 See Commonwealth v. Lanigan, 419 Mass. 15 (1994); Canavan's Case, 432 Mass. 304 (2000).
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To the extent that we do not address the defendant's other contentions, 'they ' have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm.
Judgment affirmed.
By the Court (Kantrowitz, Trainor & Hanlon, JJ.),