Opinion
No. 12–P–118.
2012-11-9
COMMONWEALTH v. Slawomir DANILUK.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal from his conviction for operating under the influence of alcohol, the defendant argues that a substantial risk of a miscarriage of justice resulted from the testimony of the arresting officer and another officer that in their opinion, the defendant was intoxicated. The arresting officer testified that he “determined that [the defendant] was operating under the influence and [he] attempted to place him into custody.” The second officer testified that he had formed the opinion that the defendant “was impaired under-from alcohol so he was unable to perform the [field sobriety] tests.” Even assuming that this testimony was tantamount to an impermissible opinion on the ultimate guilt of the defendant, see Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 579–580 (1998), we perceive no substantial risk of a miscarriage of justice, particularly in view of the fact that this was a bench trial. See Commonwealth v. Batista, 53 Mass.App.Ct. 642, 648 (2002) (“A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as factfinder”). The evidence against the defendant was almost unassailable. He was found passed out behind the wheel of his running car which was by the side of the road. He could not be easily awakened and the police officer who found him had to perform a sternum rub in order to rouse him. A strong odor of alcohol emanated from the defendant, his speech was slurred, and his responses to questions did not make sense. Despite multiple attempts, he was unable to complete the field sobriety tests. He became belligerent upon arrest, and yelled, screamed, and was disruptive during booking. When asked how much he had had to drink, he responded, “Too much.” The officers' statements that they were of the opinion that the defendant had operated under the influence of alcohol added little, if anything, to the case.
Judgment affirmed.