Opinion
20-P-1328
12-20-2021
COMMONWEALTH v. Lydia ROJAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal from her conviction of operating under the influence of intoxicating liquor and the denial of her motion for a new trial, the defendant, Lydia Rojas, argues that it was error to allow the opinion evidence of a police officer, that the evidence was insufficient to support the conviction, that the officer should not have been allowed to testify in reliance on his report rather than his memory, and that judge abused his discretion in denying her motion for a new trial. We affirm.
Discussion. 1. Opinion testimony. The defendant first argues that the officer should not have been allowed to testify that in his opinion the defendant was "impaired." Because the issue was preserved by the defendant's timely objection, we review to determine whether the officer's testimony constituted prejudicial error. Commonwealth v. Canty, 466 Mass. 535, 545 (2013).
"In a prosecution for operating a motor vehicle while under the influence of alcohol, 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 [her] apparent intoxication." Canty, 466 Mass. at 541, quoting from Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). Here, in response to the prosecutor's question about his "opinion as to [the defendant's] impairment," the officer testified that in his opinion, "[the defendant] was impaired." Where the officer did not opine on the ultimate issue -- whether the impairment affected the defendant's ability to drive -- we discern no error, let alone prejudicial error. Contrast Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389 (2017) (officer testimony inadmissible because he opined that defendant was impaired to operate motor vehicle).
We do, however, note that disputes on this issue might readily be avoided by prosecutors' framing their questions in terms of the defendant's "level of intoxication," rather than asking about the defendant's "impairment," in order to avoid an interpretation that the question was addressing the defendant's impaired ability to drive due to intoxication. See Canty, 466 Mass. at 544.
2. Sufficiency of the evidence. The defendant next argues that the evidence was insufficient to support the verdict. The elements of operating under the influence are (1) operation of a vehicle, (2) on a public way, (3) under the influence of intoxicating liquor. G. L. c. 90, § 24 (1) (a ) (1). The defendant only challenges the sufficiency of evidence that alcohol diminished her capacity to operate a motor vehicle safely. Gallagher, 91 Mass. App. Ct. at 392.
In determining whether there was sufficient evidence at trial,
"an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ... Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)."
Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009). Furthermore, we consider all the evidence before the jury, "without regard to the propriety of [its] admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010). Viewed in that light, the evidence here was plainly sufficient; the jury readily could have concluded that the defendant's ability to operate a vehicle safely was diminished by the consumption of alcohol. Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). The jury heard testimony that the defendant was displaying some of the classic indicia of impairment -- the arresting officer testified that he smelled an odor of alcohol emanating from her, and that her eyes were glossy and bloodshot. In addition, the officer provided testimony regarding the defendant's inability to keep her balance during the instructional portion of the field sobriety tests and that she was unable to properly perform the tests as instructed. As we have discussed, the officer also opined that the defendant was "impaired." Lastly, the video recording of the booking process depicted the defendant acting in a belligerent manner when asked to remove her piercings. This evidence was sufficient to permit the trier of fact to find that the defendant's consumption of alcohol resulted in her diminished capacity to operate her motor vehicle safely.
See Gallagher, 91 Mass. App. Ct. at 392-393 (sufficient evidence to support conviction where defendant had bloodshot and glassy eyes, odor of alcohol emanated from defendant, defendant could not remain still during instructional portion of sobriety tests, and defendant was unable to perform sobriety tests); Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 350 (2015) (officers' observations that defendant's eyes were glassy and bloodshot, and that defendant had strong odor of alcohol was evidence of impairment); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (defendant's "slurred speech, belligerent demeanor, strong odor of alcohol, poor balance, and glassy, bloodshot eyes" were all evidence of intoxication).
3. Police officer testimony. Next, the defendant argues, for the first time on appeal, that the officer should not have been permitted to testify to events of which he had no memory. Specifically, the defendant contends that the evidence of how the defendant performed while attempting the walk and turn portion of the field sobriety test should not have been admitted since the officer had no memory of the number of steps the defendant took and was only able to provide this evidence by referring to his incident report. Where the defendant did not object to the officer's testimony, we review any error in the admission of such testimony for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010).
The officer's testimony was properly admitted. He testified that he could not remember how many steps the defendant took while performing the walk and turn field sobriety test without referring to his report. Although it is unclear whether the officer's need to refer to his report was for the purpose of refreshing his memory or if he was reading from the report as a past recollection recorded, we need not resolve the question. The judge was within his discretion in permitting the document to be used in either way to assist the officer in testifying to the number of steps the defendant took while performing the walk and turn field sobriety test.
It is well established that "[w]hen a testifying witness's memory is exhausted as to a matter about which he or she once had knowledge, the witness's memory may be refreshed, in the presence of the jury, with any writing or other object that permits the witness to further testify from his or her own memory." Mass. G. Evid. § 612 (a ) (1) (2021). See Commonwealth v. O'Brien, 419 Mass. 470, 478 (1995). Similarly when a witness's memory is insufficient, a prior recorded recollection may be admitted assuming it meets the foundational requirements, i.e., if the proponent demonstrates that "(i) the witness has insufficient memory to testify fully and accurately, (ii) the witness had firsthand knowledge of the facts recorded, (iii) the witness can testify that the recorded statement was truthful when made, and (iv) the witness made or adopted the recorded statement when the events were fresh in the witness's memory." Mass. G. Evid. § 803 (5) (A) (2021). See Commonwealth v. Nolan, 427 Mass. 541, 544 (1998).
The officer's response that he did not remember how many steps the defendant took without referring to his report could be an indication of present memory refreshed or past recollection recorded. Even if the officer was not testifying from his present memory, his incident report was based on his firsthand knowledge of his interaction with the defendant, and additionally, he testified he believed the information in the report was correct and that the report was accurate. Thus, the prerequisites of past recollection recorded were met here, and accordingly it would also have been within the judge's discretion to allow the witness to read from the document. See Commonwealth v. Pickles, 364 Mass. 395, 401-402 (1973), citing Commonwealth v. Dougherty, 343 Mass. 299, 306 (1961) ("The judge was not required to distinguish between ‘present recollection revived’ and ‘past recollection recorded’ unless there was some difference in legal consequence. Whether or not the notes created a present recollection by the officer, the judge in his discretion could permit him to incorporate them in his testimony"). We therefore determine there was no error in the admission of this testimony.
4. Ineffective assistance of counsel. Finally, the defendant contends that the judge erred in denying her motion for new trial in which she claimed that trial counsel was ineffective for failing to obtain medical records of her prior leg injury. The defendant contends that the records would have provided context for her poor performance during the field sobriety tests.
When asked by the officer to perform field sobriety tests the defendant told him of a previous leg injury, but agreed to do the tests.
"We review a judge's denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion,’ granting ‘special deference to the rulings of a motion judge who [like here] was also the trial judge.’ " Commonwealth v. Alcide, 472 Mass. 150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). The defendant bears the burden of demonstrating that her counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," and that counsel's failure "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We discern no error of law or abuse of discretion in the motion judge's conclusion that the medical evidence would not have materially affected the result of the trial. See Commonwealth v. Acevedo, 446 Mass. 435, 441-442 (2006) (reversal rare where motion judge also trial judge).
The judge was warranted in finding that the medical records of treatment of the defendant's right knee, which occurred more than two years prior to her arrest, would not have revealed what the condition of her knee was on the date of arrest and the attorney's performance in failing to offer the medical evidence did not fall measurably below that of an ordinary fallible attorney. We discern no abuse of discretion in the judge's conclusion.
Furthermore, trial counsel's affidavit, provided in support of the defendant's motion for a new trial, indicated that he made a tactical decision to move forward with the trial, without the medical records, because he believed that going forward without a continuance would improve the defendant's chances at prevailing on the second offense portion of the charge. When the record demonstrates a strategic basis for counsel's course of action, " ‘we conduct our review with some deference ...’ and ask whether the decision was manifestly unreasonable when made." Commonwealth v. Gomes, 478 Mass. 1025, 1026 (2018), quoting Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016). Here the failure to obtain the medical records was a reasonable tactical decision to avoid the defendant being found guilty of the second offense. Therefore, the defendant has failed to demonstrate that counsel's failure to obtain the medical records fell "measurably below" the required standards of practice. Saferian, 366 Mass. at 96.
The record reflects that immediately after the jury verdict the defendant was found not guilty of the second offense portion of the complaint following a jury-waived trial.
Judgment affirmed.
Order denying motion for new trial affirmed.