Opinion
15-P-39
01-12-2016
COMMONWEALTH v. JAMES E. JONES.
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
After a jury-waived trial in the District Court, the defendant was found guilty of operating a motor vehicle while under the influence of marijuana, in violation of G. L. c. 90, § 24(1)(a)(1). On appeal he argues that the judge erred in allowing the arresting officer, a State trooper with training and experience in evaluating individuals for marijuana use, to give expert testimony that, based upon his observations, he formed the opinion that the defendant was "operating under the influence of marijuana." Because the defendant timely objected, we review for prejudicial error.
The trooper testified that there was a strong odor of burnt marijuana coming from the vehicle; the defendant's eyes were heavily bloodshot and had marked reddening of the conjunctiva; the defendant admitted to smoking marijuana right before he got behind the wheel, remarked that he believed it was legal to smoke marijuana and drive, and stated, "[A]t least I'm not drunk;" the defendant's speech was slow and deliberate; the defendant did not satisfactorily perform field sobriety tests; and when performing a modified Romberg balance test, the defendant exhibited pronounced swaying and eyelid tremors indicative of marijuana that is psychoactive in the system.
We agree that, as phrased, the testimony went to the ultimate issue and should not have been admitted. See Commonwealth v. Canty, 466 Mass. 535, 542-544 (2013). See also Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 (1998). We conclude, however, that the error was not prejudicial. Because the case was tried jury-waived, the fact finder was not likely to have been unduly swayed by the improperly admitted opinion evidence. See Commonwealth v. Murungu, 450 Mass. 441, 448 (2008). Furthermore, the offending part of the trooper's testimony was brief, in contrast to his lengthy testimony describing his observations of the defendant. Those observations, if credited, overwhelmingly supported a guilty verdict. There was ample reason for the judge to credit the trooper and discredit the defendant where the defendant testified that there had been no marijuana in the vehicle, when, in fact, the parties stipulated that marijuana was found there.
Judgment affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.)
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 12, 2016.