Opinion
11-P-406
03-12-2012
COMMONWEALTH v. FILIPE ANTUNES.
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
On appeal from convictions of operating under the influence and operating so as to endanger, the defendant contends that his convictions must be reversed because (1) a prosecution witness testified regarding his breathalyzer training, (2) the Commonwealth presented insufficient evidence of negligent operation, and (3) the judge erred in admitting opinion evidence regarding the defendant's sobriety. We affirm.
1. Testimony regarding breathalyzer training. We discern no error in the judge's handling of Officer Jesse Drane's remark that his training in identifying people who are under the influence of alcohol included breathalyzer training. Preliminarily, we note that Officer Drane's remark touched upon his general training and was not related directly to his investigation involving the defendant. Moreover, when defense counsel noted that Officer Drane's testimony was 'starting to sound like expert testimony,' the trial judge alertly struck the testimony from the record, instructed the jurors that he was striking the answer, and told the jury to disregard it. Defense counsel lodged no objection to the judge's handling of the testimony and requested no further instruction. Moreover, in both his opening and closing instructions, the judge informed the jury that matters stricken from the record are to be disregarded, and that they were to decide the case based solely upon the evidence admitted at trial. 'Jurors are presumed to follow a judge's instructions, including instructions to disregard certain testimony.' Commonwealth v. Williams, 450 Mass. 645, 651 (2008).
Nothing in the deliberating jury's question (regarding 'normal operating procedure'), or the judge's response (with the agreement of counsel) that the jury were to confine their deliberations to the evidence, gives us pause that justice may not have been done. See Commonwealth v. Downs, 53 Mass. App. Ct. 195, 199 (2001). Indeed, the judge's supplemental instruction again communicated that the jury must base their decision solely on the evidence and not on speculation. See Commonwealth v. Williams, supra.
2. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence sufficed to establish that the defendant was operating his motor vehicle negligently on a public way so that the lives or safety of the public might be endangered. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921- 922 (2004). As noted in the Commonwealth's brief at pages 18 through 20, the evidence and reasonable inferences easily permitted a reasonable finder of fact to conclude that the defendant was operating negligently. On a spring morning with no apparent adverse conditions of road or weather, the defendant operated his vehicle in a thickly settled residential neighborhood at such a rate of speed that the vehicle left the road, hit a stone wall, and still proceeded with such force that it snapped a utility pole in half at a height of ten feet before coming to a stop facing the opposite direction of travel. Where the damage to the defendant's vehicle, the stone wall, and the utility pole was extensive, and no other vehicle or condition served to explain the accident, it was reasonable for the jury to conclude that excessive speed was the determinative factor. That the defendant was highly intoxicated at the time also need not have been overlooked. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006) (sufficient proof of negligent operation where, while intoxicated, defendant crossed fog line, two lanes of traffic, straddled breakdown lane, and nearly struck road sign).
3. Opinion testimony as to the defendant's sobriety. We discern no error, much less a substantial risk of a miscarriage of justice, in the admission, without objection, of a response to the prosecutor's question that asked whether Officer Drane was 'able to form an opinion as to the defendant's sobriety. . . .' See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994). Drane's testimony that the defendant was 'drunk' was responsive, based upon his own observations, and within the accepted realm of lay opinion regarding another person's sobriety. See Commonwealth v. Atencio, 12 Mass. App. Ct. 747, 750-751 (1981). Although Drane began to expand with the words, 'He was operating . . . ,' timely interruption by the prosecutor returned the witness to the appropriate focus and avoided crossing the line into impermissible opinion regarding the defendant's culpability. See Commonwealth v. Lodge, 431 Mass. 461, 467 (2000). Drane then related that his opinion was based upon the defendant's odor of alcohol, glassy eyes, slurred speech, and unsteadiness on his feet, all appropriate bases of opinion on the defendant's sobriety.
Judgments affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),