Opinion
13-P-1986
11-18-2014
COMMONWEALTH v. MADELINE MACDONALD.
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
After a jury trial in the Boston Municipal Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI) in violation of G. L. c. 90, § 24(1)(a)(1). In this, her direct appeal, she claims that her conviction must be vacated because the arresting officers impermissibly testified to the ultimate issue. We affirm.
The defendant bases her argument on three statements. The first was elicited during defense counsel's cross-examination of Officer William Donnellan. After establishing that the officer had formed an opinion about the defendant's sobriety, counsel asked what that opinion was. Donnellan responded: "That she had consumed alcohol and was not in the position to be driving." The second statement was made during direct examination of Officer James Freeman. The prosecutor asked whether the defendant was allowed to leave after performing field sobriety tests, to which Freeman responded: "No. At that point I formed the opinion that she was impaired." Freeman went on to say that he then placed the defendant under arrest. The third statement came in during defense counsel's cross-examination of Freeman. Counsel asked, "You felt you were duty bound to arrest her because you had formed an opinion that she may be impaired, correct," and Freeman responded, "Yes." None of the statements was the subject of an objection or a motion to strike. Accordingly, we review only to determine whether any error gave rise to a substantial risk of a miscarriage of justice. Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 606-607 (2013).
There is no merit to the defendant's contention that she is entitled to review under the prejudicial error standard because the law was undeveloped, and objection would have been futile. The applicable legal principles were not new, and had been reiterated explicitly seven months prior to the defendant's trial in Commonwealth v. Jones, 464 Mass. 16, 17 & n.1. (2012).
We agree with the defendant that Officer Donnellan's testimony that the defendant was "not in the position to be driving" was impermissible, as it was the equivalent of opining that the defendant's consumption of alcohol diminished her ability to operate her motor vehicle safely. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013). We also question the propriety of the two references to the defendant having been "impaired." While the use of this term was approved in Canty, supra, in a context where the jury would have understood the term to refer only to the state of the defendant's sobriety, here the impairment was identified as the reason for arrest on a charge of driving under the influence.
Nevertheless, we are unpersuaded that the officers' testimony created a substantial risk of a miscarriage of justice. The Commonwealth's case was strong. Furthermore, the judge explicitly instructed the jury that it was their function to determine whether the defendant was under the influence of alcohol, and to accept or reject any opinion testimony they heard. See Canty, supra, at 545.
Donnellan stopped the defendant at around 1:20 A.M. after observing her vehicle traveling without illuminated headlights, and weaving back and forth. When she pulled over, the defendant stopped her vehicle in the middle of the road, and when Donnellan told her to move the car around the corner, she struck the curb. Donnellan noticed that the defendant's eyes were red and glassy, her speech was slurred, and that her breath smelled of alcohol. She admitted that she had been drinking, and, when asked to exit the car, had trouble getting out and held on to the side of the car to keep from falling. When Freeman came on the scene and asked her to perform sobriety tests, the defendant became belligerent and was unable to complete any of the tests correctly.
To the extent the defendant frames her argument in terms of ineffective assistance of counsel, we decline to consider it on the record before us. See Commonwealth v. Zinser, 446 Mass. 807, 812 (2006).
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Judgment affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 18, 2014.