Opinion
21-P-498
07-19-2022
COMMONWEALTH v. WARREN P. DOW.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Warren P. Dow, was convicted, following a jury trial, of operating while under the influence of intoxicating liquor (OUI), third offense, G. L. c. 90, § 24 (1) (a.) (1), leaving the scene of property damage, G. L. c. 90, § 24 (2) (a.), and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a). On appeal, the defendant argues that the Commonwealth elicited improper opinion testimony about the defendant's intoxication from two police witnesses; the Commonwealth concedes as much. We agree, but because we conclude that the error did not, in the circumstances here, create a substantial risk of a miscarriage of justice, we affirm the defendant's convictions.
The subsequent offense portion of the OUI was tried before the District Court judge, without a jury.
The defendant makes no separate argument pertaining to the convictions for leaving the scene or negligent operation.
At trial, the prosecutor elicited from the troopers their training at the police academy regarding investigations of operating under the influence offenses. Specifically, the troopers informed the jury that, as part of their training, they learned to evaluate the intoxication levels while watching "role players" consume varying types and amounts of alcohol. The troopers subsequently testified that their opinions that the defendant was "intoxicated" and "clearly drunk" were based on their training and work experiences. This reliance on the troopers' training and suggestion that the troopers were more qualified to assess intoxication than a layperson was, as the Commonwealth concedes, error. See Commonwealth v. Canty, 466 Mass. 535, 541 (2013).
We commend the Commonwealth on appeal for conceding error in the prosecutor's questions regarding the officers' training and the closing argument regarding the basis for the officers' opinions, but we also note our concern that, despite passage of nearly ten years since Canty was decided, as well as numerous instructions from this court, the Commonwealth continues to elicit improper testimony on this subject.
The officers' opinions that the defendant was "intoxicated" and "clearly drunk" were permissible. See Commonwealth v. Jones, 464 Mass. at 17 n.1 (2012) (police officer testified that defendant was drunk). See also Commonwealth v. Guaman, 90 Mass.App.Ct. 36, 39, 42-43 (2016) (statement of lay witness that defendant was drunk). Our courts have long recognized that opinion testimony of lay witnesses -- including police officers -- as to whether a person was intoxicated from the consumption of alcohol is admissible at trial. See Jones, supra, at 17 n.1; Edwards v. Worcester, 172 Mass. 104, 105 (1898) . "Such . . . testimony is proper because it is not based on scientific, technical, or other specialized knowledge that would require expert testimony, but, rather, lies within the realm of common experience. We long have observed that the effects of liquor upon the minds and actions of men are well known to everybody" (quotation and citation omitted). Commonwealth v. Gerhardt, 477 Mass. 775, 785-786 (2017).
However, it was improper for the prosecutor to frame the questioning in such a way that jurors might have "misunderstood [the answer]... as testimony based on scientific, technical, or other specialized knowledge," Commonwealth v. Gallagher, 91 Mass.App.Ct. 385, 399 (2017) (Agnes, J. dissenting), and then to argue the officers' training in closing argument to bolster their opinions. Because the defendant did not object at trial to the improper evidence and closing argument he now challenges on appeal, our review is limited to determining whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016). Under this standard, we must determine if there is a "serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). We conclude that it did not do so.
Here, the judge gave specific instructions regarding the officers' opinions on the defendant's level of impairment. The instruction told the jury that it was for them, and them alone, to determine whether the defendant was under the influence of alcohol, and that they were free to accept or reject any opinion on the issue. This instruction diminished the impact of the improper evidence. See Canty, 466 Mass. at 545. Furthermore, putting aside the troopers' improper opinion testimony, the evidence at trial of the defendant's intoxication was overwhelming. A witness testified that the defendant was driving on Route 128 in an erratic and aggressive manner, swerving between lanes at a very high rate of speed. After attempting another lane change, he crashed head-on into the guardrail on the right side of the road at a ninety-degree angle. Another witness testified that, after the crash the defendant continued to drive while his front tire was completely flat and drove on its rim. That witness further testified that she observed him parking his car, later identified as a Toyota RAV4, in the back of an apartment complex and running from the car down a path into the adjoining woods.
The police responded to the parking lot and saw that the Toyota was occupying two spots, had heavy front-end damage, the front tire was detached from the rim, the airbags had deployed, and the steering wheel was "practically bent in half." Officers located the defendant and spoke to him about the accident. They noted that the defendant had fresh injuries to his arms, hands, neck, and face. In addition, his eyes were bloodshot and glassy, his speech was slurred, he seemed overly sensitive to light, and there was a strong odor of alcohol when he spoke. The two officers who made these observations opined that the defendant was intoxicated.
The defendant told the officers that he owned the Toyota but claimed that he had been home watching the Patriots game and had fallen asleep after consuming a few beers. He could not explain why the vehicle was no longer parked in the driveway next to his home, or why the keys were still on his person. The next day, the defendant called the officer and admitted he was the operator of the Toyota, and he asked where the vehicle was located and the extent of the damage caused by the crash.
The Patriots game had taken place over twenty-four hours prior to the accident.
Even without the improper testimony of the officers and the prosecutor's improper closing argument emphasizing that testimony, we have no serious doubt that the jury would have found the defendant guilty of OUI given the overwhelming evidence of intoxication. See Azar, 435 Mass. at 687.
Judgments affirmed.
Green, C.J., Hand & D'Angelo, JJ.
The panelists are listed in order of seniority.