Opinion
No. 15–P–1579.
12-05-2016
COMMONWEALTH v. David W. MONTVILLE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was found guilty of operating under the influence of intoxicating liquor (OUI), negligent operation of a motor vehicle, and leaving the scene of an accident resulting in property damage. On the subsequent offense portion of the OUI conviction, the judge also found the defendant guilty of operating under the influence as a fourth offense. The defendant contends that (1) the judge erred in granting the Commonwealth's motion to exclude Officer Jose Martinez's testimony, (2) the evidence was insufficient to support OUI, subsequent offense, and (3) the lay opinion testimony was impermissibly presented as expert opinion, resulting in a substantial risk of a miscarriage of justice.
Discussion. The defendant maintains that the trial judge erred in granting the Commonwealth's motion in limine to exclude Probation Officer Jose Martinez's testimony. The defendant contends that the testimony tended to prove that the defendant seemed impaired on the night in question due to his diabetic condition, not inebriation, and that the exclusion of the evidence deprived him of the right to present his defense.
Probation Officer Martinez would have testified that four months after the incident, he suspected that the defendant might be under the influence of alcohol. He gave the defendant a portable breath test, but the reading was 0.0.
While the Declaration of Rights of the Massachusetts Constitution protects a defendant's right to present his defense, including the right to call favorable witnesses, this right yields to " ‘legitimate demands of the adversarial system’ as determined within the discretion of the trial judge." Commonwealth v. McCollum, 79 Mass.App.Ct. 239, 257 (2011), quoting from Commonwealth v. Durning, 406 Mass. 485, 495 (1990). "Evidentiary rules of exclusion do not abridge an accused's right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ " Ibid., quoting from Commonwealth v. McAfee, 430 Mass. 483, 491 n. 3 (199).
"A trial judge may, in his discretion, admit evidence of acts committed subsequent to a charged offense.... To be sufficiently probative, however, the evidence of postcrime conduct ‘must be connected with the facts of the case or not be too remote in time.’ " Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001), quoting from Commonwealth v. Barrett, 418 Mass. 478, 494 (1994). Unlike the usual case, in which "evidence of acts committed after the charged offense [is admitted] to show, among other things, intent or state of mind at the time of the charged offense," Commonwealth v. Riley, 467 Mass. 799, 825 (2014), this evidence was not offered to show the defendant's intent or state of mind. Rather, the evidence was offered to show that, because one person, Probation Officer Martinez, made a mistake about the defendant's sobriety four months after the offense, the arresting officer also must have made a mistake. The defendant's claim for relevance is too tenuous and the timing too remote to render the judge's ruling "outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
The defendant did present his defense by means of other evidence.
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Sufficiency. The defendant contends that the evidence supporting the conviction of a fourth subsequent OUI offense was insufficient. The Commonwealth offered the docket as proof of the defendant's prior convictions, but the docket for his 1979 OUI conviction did not indicate that the defendant had counsel, or that he had waived his right to be represented by counsel.
The defendant acknowledges that Commonwealth v. Saunders, 435 Mass. 691, 692, 695–696 (2002), applies the presumption of regularity and places the burden on a defendant to show that he was deprived of counsel in felony cases. The defendant contends, however, that the Appeals Court was without authority to extend the Saunders rule to misdemeanors in Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904–905 (2010). The rationale in Saunders was clear and explicit, and was properly applied. See Commonwealth v. Cuevas, 87 Mass.App.Ct. 205, 207 n. 6 (2015) ("[A]pplication of the presumption of regularity is not limited to the factual circumstances present in Saunders "). The evidence was sufficient.
Lay testimony. The defendant maintains that the lay opinion testimony of Officer Smith and Trooper McDonough was tainted by testimony at trial that they had special expertise in detecting intoxication. Because there was no objection to the testimony, our review is limited to whether error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002).
"[A]n opinion regarding a defendant's sobriety is a lay opinion, not an expert opinion." Commonwealth v. Canty, 466 Mass. 535, 541 (2013). "[P]olice officers in criminal cases are permitted, as lay witnesses, to offer their opinion of an individual's sobriety." See id. at 540. The officer and trooper opined that the defendant was intoxicated, a proper subject of lay opinion. See ibid.
Before offering their opinions, the officer and trooper testified to their training in investigating cases involving driving under the influence of alcohol and field sobriety testing. This evidence was relevant to show the manner in which the officer and trooper conducted the investigation and testing in this case, matters to which they also testified. Other than brief introductory questions, the prosecutor did not emphasize their training, either as a basis for their lay opinions, or in an effort to persuade the judge during closing statements that the lay opinion should be accorded special weight. The judge is presumed to have "correctly instructed himself on the law of evidence." See Commonwealth v. Sepheus, 468 Mass. 160, 170 (2014), quoting from Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000). There was no error in the admission of the evidence.
Judgments affirmed.