Opinion
13-P-503
02-06-2015
COMMONWEALTH v. JAMES F. FICCO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from his conviction of operating a motor vehicle while under the influence of alcohol (third offense). He raises two issues on appeal. First, he argues that a substantial risk of a miscarriage of justice occurred when the arresting police officer opined that the defendant had operated the vehicle while under the influence of alcohol. Second, he argues that his Sixth Amendment confrontation right under the United States Constitution was violated by admission of official registry of motor vehicles records and, in the alternative, that those records were insufficient to prove that he was the person identified in them. We affirm.
The defendant was also found responsible of possessing an open container of alcohol in his car. That charge was placed on file and the defendant does not argue error with respect to the finding on appeal.
In response to the prosecutor's question whether he had "form[ed] any opinion as to the defendant's sobriety," the officer testified that it was his "opinion that he was operating his vehicle while under the influence of alcohol." The prosecutor's question was proper; the officer's answer was not. "[A] lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely." Commonwealth v. Canty, 466 Mass. 535, 544 (2013). However, there was no motion to strike the officer's answer and, therefore, we review only to determine whether the officer's testimony created a substantial risk of a miscarriage of justice.
Here, there was none. "We note first that the risk of prejudice arising from the admission of an opinion that closely touches on the ultimate issue of guilt is less with lay opinion than with expert opinion, even where the lay opinion is offered by a police officer, because it is less likely that a jury would forego independent analysis of the facts and bow too readily to the opinion where it is not reached through the specialized knowledge of an expert." Id. at 545 (quotation omitted). That risk was further diminished here by the judge's final instructions to the jury that they were the ones who ultimately were required to determine whether the defendant was under the influence of alcohol when he operated the vehicle. Furthermore, the evidence was extremely strong. Two breathalizer readings registered .08 percent alcohol. The defendant admitted drinking two beers, and a cold opened can of beer was on the seat next to him when he was stopped (with another cold unopened can also next to him). His eyes were glassy, his speech was slurred, and he failed two of the three field sobriety tests.
The defendant's second argument is controlled in all material respects by Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 335 (2011). "The registration records are kept in the ordinary course of the business of the [registry of motor vehicles] and were admissible as business records and as summaries of records regularly maintained by the [registry of motor vehicles]." Ibid. Furthermore, the evidence of identification was ample: although there was a slight variation in name (presence or absence of middle initial or "Jr."), the date of birth was uniform, and there was a consistent history of the license numbers.
Judgment affirmed.
By the Court (Cypher, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 6, 2015.