Opinion
21-P-1103
12-07-2022
COMMONWEALTH v. Corey M. LEGERE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the District Court, the defendant, Corey M. Legere, was convicted of operating a motor vehicle while under the influence of drugs (OUI drugs) and negligent operation of a motor vehicle (negligent operation). On appeal, he contends (1) that the evidence was insufficient to sustain his convictions for OUI drugs and negligent operation, and (2) the judge erred in allowing improper opinion testimony. We affirm.
The defendant was also charged with receiving a stolen motor vehicle and operating a motor vehicle with a suspended license, subsequent offense (OAS). Prior to the start of the trial, the judge dismissed the receiving a stolen motor vehicle charge at the Commonwealth's request, and the defendant pleaded guilty to the OAS charge.
Background. We summarize the facts, as the judge could have found them, in the light most favorable to the Commonwealth. On March 28, 2020, at approximately 9:15 P.M. , Officer Paul Oliveira received a radio call regarding a motor vehicle at the CVS Pharmacy on Washington Street in Attleboro. Upon arrival near the CVS, he saw and then followed the vehicle as it exited the CVS parking lot and turned onto Highland Avenue. He subsequently saw the vehicle cross over the double yellow line and "ma[k]e multiple lane changes without signaling" to the other vehicles in the area. It was nighttime and raining when he made these observations. Next, Officer Oliveira watched the vehicle make a "right into the Triple Play Car Wash." He saw the vehicle move "slowly through the gas pumps turning in multiple different directions and then c[o]me to a stop in one of the parking spaces in front of the store itself." Officer Oliveira activated his blue lights and asked the driver -- identified as the defendant -- to exit the vehicle.
After the defendant got out of the car, Officer Oliveira noticed that he was swaying, unsteady on his feet, and "appeared confused and his speech was slowed." The defendant said that he had "received [the vehicle he was operating] from a brother-in-law." When asked who the brother-in-law was, the defendant responded that "he did not know, and then he told [the officer] that [the vehicle] was from a sister-in-law." Officer Oliveira asked the defendant "why he appeared to be slow" and "appeared to be confused," to which the defendant responded that he "took Suboxone strips earlier." When asked "what time" he had taken the Suboxone, the defendant replied, "recently," but could not provide an exact time. When asked what day it was, the defendant responded, "Friday at some point in time in April." Officer Oliveira opined that the defendant "was impaired."
A paramedic, Justin Jackson, arrived at the scene and evaluated the defendant. Jackson testified that the defendant was "somewhat off or altered," but otherwise seemed "okay." Jackson further testified to his experience and training as a paramedic including the recognition of different types of drugs and the effects that certain drugs may have on individuals. He also testified to potential effects of Suboxone ingestion on a person, acknowledged that he had "seen a lot of people under the influence of Suboxone," described "the typical indicators of a person who is under the influence of Suboxone," and described the manner in which Suboxone ingestion affects a person's motor skills.
Discussion. 1. Sufficiency. The defendant claims that the judge should have allowed his motion for a required finding of not guilty of OUI drugs because the Commonwealth failed to prove beyond a reasonable doubt the element of "impairment." Specifically, he contends that the Commonwealth failed to introduce (a) reliable evidence as to the concentration of the drug in the defendant's system, and (b) necessary expert testimony. The argument is unavailing.
In determining whether a motion for a required finding of not guilty was properly denied, the reviewing court "must consider whether, viewing the evidence in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence ‘need only be reasonable and possible; [they] need not be necessary or inescapable’ " (citation omitted). Commonwealth v. Grandison, 433 Mass. 135, 141 (2001). "To prove the crime of operating a motor vehicle while under the influence of a narcotic drug under G. L. c. 90, § 24 (1) (a ) (1), the Commonwealth was required to establish that the defendant (1) physically operated a vehicle; (2) on a public way; (3) while under the influence of a narcotic drug." Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018). Here, the defendant only challenges the "under the influence" element.
Contrary to the defendant's claim, the Commonwealth is not obligated to provide expert testimony to prove that a defendant was under the influence of drugs. See Bouley, 93 Mass. App. Ct. at 713. Rather, the Commonwealth may prove that the defendant was under the influence of drugs through various factors. See id. at 712-713, and cases cited (identifying some factors). Here, the evidence and reasonable inferences therefrom, viewed under the Latimore standard, established that the defendant operated a vehicle erratically; was confused, unsteady, and swaying; was disoriented as to time, his location, and ownership of the vehicle he drove; and admitted that the cause of his confusion and unsteadiness stemmed from recent consumption of Suboxone. In addition to Officer Oliveira's testimony, Jackson's observations and testimony based on his paramedic training and experience regarding the effects of Suboxone bolstered the Commonwealth's case. A factfinder considering the totality of this evidence "could reasonably infer that whatever amount of [Suboxone the defendant] took was sufficient to impair his capacity to operate the car safely." Bouley, supra. Nothing in Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 74-77 (2005), upon which the defendant relies, stands for the general proposition that proof of drug impairment in the OUI context requires proof of the precise concentration of the drug ingested by a defendant. See Bouley, 93 Mass. App. Ct. at 713 (noting in similar context that in Shellenberger, "the mere fact that the defendant had amphetamines in her system was not a proper basis for an argument that the amphetamines impaired her ability to drive").
There is no dispute on appeal that Suboxone is a drug as defined in G. L. c. 94C, § 1.
The defendant also claims that the Commonwealth failed to prove that he operated his vehicle negligently so as to endanger the lives and safety of the public. For the reasons delineated above, the claim is unavailing. Under our precedent, the evidence was more than sufficient to prove that the lives and safety of the public might have been endangered. See, e.g., Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 543 (2020) ; Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017) ; Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004).
2. Opinion evidence. On direct examination, the prosecutor asked Officer Oliveira, "what was your opinion of [the defendant's] sobriety after interacting with him on that date?" Defense counsel objected on the basis that the defendant's intoxication was "a determination for the finder of fact." After the judge overruled the objection, Officer Oliveira testified, "my opinion was that he was impaired and was unable to operate a motor vehicle properly." Defense counsel neither objected to nor moved to strike this testimony. On appeal, the defendant argues that the testimony amounted to improper lay opinion that the defendant's ability to drive was impaired by drugs. The Commonwealth acknowledges as much but claims that the error was not prejudicial. We agree.
As an initial matter, both parties maintain that the error was preserved in view of defense counsel's objection. We disagree. The prosecutor's question was proper. "In a prosecution for operating a motor vehicle while under the influence of alcohol [or drugs], lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication." Commonwealth v. Canty, 466 Mass. 535, 541 (2013), quoting Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). Here, the question called for Officer Oliveira to offer an admissible lay opinion. Thus, the judge properly overruled the objection. However, Officer Oliveira's response -- wherein he opined that the defendant could not operate the vehicle safely -- went beyond the scope of the question. At this point, to properly preserve the issue for appeal, defense counsel should have objected again and moved to strike the improper testimony. This is not a mere formality. It is black letter law that "[w]hen an answer is nonresponsive and objectionable, a subsequent objection or a motion to strike is necessary to preserve the issue." Mass. G. Evid. § 103 note, subsection (a) (1) (2022). See Commonwealth v. Rosado, 59 Mass. App. Ct. 913, 914 (2003) ("the record does not show that the judge could have known what [the witness's] answer was to be; to be preserved, the objection should have been renewed by a motion to strike"). Accordingly, our review is limited to whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We note that the defendant acknowledges "[i]t is well settled a lay witness, including a police officer, may offer their opinion regarding a defendant's intoxication," and does not challenge the prosecutor's question itself as improper.
Here, we discern no such risk. We consider that the testimony at issue was brief and note that the prosecutor did not return to the issue in her examination and did not argue it in closing argument. Furthermore, the evidence in the case was, if not overwhelming, very strong. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013). Finally, this was a jury-waived trial, and thus "[w]e assume that the judge is familiar with the law and did not permit himself to be influenced by such objectionable testimony." Commonwealth v. Montanez, 439 Mass. 441, 449 (2003). Therefore, there was no substantial risk of a miscarriage of justice based on the improper opinion testimony.
Judgments affirmed.