Opinion
19-P-1348
05-05-2021
COMMONWEALTH v. Robert A. FIRTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a one day jury trial, the defendant was convicted of operating a motor vehicle under the influence of a narcotic drug in violation of G. L. c. 90, § 24 (1) (a ) (1), and negligent operation of a motor vehicle in violation of § 24 (2) (a ). On appeal, he argues that the judge erred (1) in admitting opinion testimony of the victim, an off duty police officer, that the defendant appeared to be under the influence of a narcotic, and (2) in admitting certain statements in the medical records, to the same effect. We affirm.
Background. At around 12:30 P.M. on March 8, 2017, the defendant was driving on Ocean Avenue in Revere when he collided with a parked car, causing that car to strike a second parked car in front of it. Seated in the second parked car was off-duty Revere Police Officer Gregory Tammaro, whose head hit the steering wheel in front of him hard enough to bloody his nose. The defendant was helped from his vehicle; he was semi-conscious. A Massachusetts State Trooper responded to the scene and radioed for an officer to assist with administering Narcan to the defendant. Officer Tammaro, trained in the administration of Narcan and fortuitously equipped with a dose in his car, retrieved the Narcan and administered it to the defendant, who then "got up." The defendant was transported by ambulance to a nearby hospital for further treatment.
Tammaro was the only witness to testify. He testified to the above facts, and also testified to his observations of the defendant, and to his knowledge and training in dealing with persons under the influence of narcotics. He testified that the defendant at first appeared to be unconscious, and that he had pinpoint pupils and dry mouth. Prior to Tammaro's administration of the Narcan, the defendant would "wake up and then nod back off." Tammaro testified that these were "signs of an overdose." Tammaro also testified that he was trained in administering Narcan, and that he had previously administered Narcan approximately one dozen times to persons who were overdosing. Finally, Tammaro was asked "what were your physical observations of [the defendant]," and responded "[t]hat he was under some type of narcotic."
The Commonwealth also presented the defendant's medical records, from both the hospital and the ambulance company. The defendant objected to portions of these records that referenced his drug use, but for the most part his objections were overruled. In particular, the hospital records submitted to the jury contained the statement: "Patient reported snorting heroin around 7 AM." The hospital records also contained multiple additional references to drug use or substance abuse -- including the statement "heroin abuse," which appeared under the heading "ED Course and Medical Decision-making." To similar effect, the ambulance company records stated, among other things:
"dispatched ... for an MVA [motor vehicle accident] with an opiate overdose ... [Patient] appearing under the influence of a narcotic."
As noted, the jury convicted the defendant of operating under the influence of a narcotic, and negligent operation of a motor vehicle.
Discussion. 1. Officer Tammaro's testimony. The defendant first challenges Tammaro's testimony that the defendant "was under some type of narcotic" when Tammaro observed him immediately after the crash. The defendant appears to raise two related contentions: (1) that Tammaro's statement improperly encompassed the ultimate question of guilt, which was for the jury, and (2) that Tammaro should not have been allowed to testify that the defendant was under the influence because such was improper expert opinion.
We assume arguendo that the issues were in fact preserved, and review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). This two-part analysis requires us (1) to determine whether the evidence was admitted in error, and (2) if there was error, whether the error was prejudicial, or whether it likely "did not influence the jury, or had but very slight effect." Id., quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). "[D]eterminations as to the admissibility of evidence lie within the sound discretion of the trial judge" (quotation omitted). Commonwealth v. Bins, 465 Mass. 348, 364 (2013), quoting Commonwealth v. Jones, 464 Mass. 16, 19-20 (2012). We are not persuaded that there was reversible error under the circumstances.
First, Tammaro's statement that the defendant was under the influence of a narcotic did not improperly invade the province of the jury. In Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013), the Supreme Judicial Court held that a witness in an operating under the influence case may offer an opinion that an individual was intoxicated by alcohol, so long as the witness did not opine on the issue of 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." In this case Tammaro's testimony hewed to the line drawn in Canty; while Tammaro testified to his opinion that the defendant was under the influence when he observed the defendant, Tammaro did not intrude on the ultimate issue because he offered no opinion as to whether the defendant operated the vehicle under the influence of a narcotic. Id.
The next question is whether Tammaro's statement was an improperly admitted expert opinion. To begin, the statement is clearly an opinion, not a statement of fact. See Canty, 466 Mass. at 540-542 (testimony regarding whether a person is intoxicated is opinion testimony). Moreover, under the case law it is an opinion that can only be offered by an expert. See Commonwealth v. Gerhardt, 477 Mass. 775, 786-787 (2017). While courts of the Commonwealth have long allowed lay witnesses to testify to opinions regarding apparent alcohol intoxication, see, e.g., Commonwealth v. Gogan, 389 Mass. 255, 264 (1983), the same is not true of narcotic intoxication, the characteristics of which have been held to be beyond the common knowledge of jurors. See Gerhardt, supra (characteristics of marijuana intoxication beyond common knowledge of average juror and thus lay witnesses may only testify to an individual's "observable appearance, behavior, and demeanor, but may not offer an opinion as to the defendant's sobriety or intoxication"); Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 714 (2018). Accordingly, Tammaro could only have offered the opinion if an adequate foundation was laid that he had the expertise to do so. See Mass. G. Evid. § 701 notes; § 702 (2018).
There was some confusion in the record as to whether the judge would allow Tammaro to offer the "under [the influence]" opinion. After review of the record we are satisfied that the judge concluded that Tammaro could testify that the defendant was under the influence of "some drug." Tammaro actually testified that the defendant was "under [the influence] of some ... narcotic." Given our conclusion that Tammaro's testimony caused no prejudicial error, the variance is not material.
We do not resolve whether Tammaro's opinion was properly admitted here, because in any event it was not prejudicial given the totality of the evidence. When Tammaro first observed him, the defendant had just rammed his vehicle into a parked car at high speed. See Bouley, 93 Mass. App. Ct. at 714-715 (evidence of accident itself relevant to whether defendant operated under the influence). Prior to the administration of Narcan, the defendant appeared to be unconscious, and had pinpoint pupils and dry mouth. Tammaro testified, based upon his training and experience, that these were all symptoms of a narcotics overdose, and that testimony was properly admitted. After the administration of Narcan the defendant "got up." In addition, the defendant told the doctors at the hospital that he had snorted heroin that morning. In total, this was very strong evidence that the defendant was under the influence of a narcotic while operating his vehicle, and thus Tammaro's opinion did not add materially to the objective facts. Indeed, the facts here are quite similar to those in Bouley, 93 Mass. App. Ct. at 714, where we observed:
"Furthermore, on balance, the EMT's opinion was not unfairly prejudicial ... Rather, independent of the challenged opinion, there was evidence that the defendant (1) admitted to taking fentanyl ; (2) was found at the scene of the accident; (3) unresponsive and barely breathing; (4) until revived by a widely-known opioid antidote...."
See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389-390 (2017) ("[I]n view of the whole case, the prejudice flowing from [the opinion as to defendant's impairment] would be relatively modest given what must have been obvious to the jury").
2. The medical records. We also perceive no error in the admission of the hospital and ambulance records, which had been redacted in part. The admission of such records is governed by G. L. c. 233, § 79, which establishes an exception to the hearsay rules. Statements contained in such records are admissible even if they have some "incidental[ ] ... bearing on the question of liability," as long as they pertain "directly and primarily to the treatment and medical history of the patient." See Commonwealth v. McGann, 484 Mass. 312, 320 (2020), quoting Commonwealth v. Torres, 479 Mass. 641, 653 (2018). The defendant's statement that he had taken heroin that morning, which was recorded in the hospital records, was properly admitted under these rules.
There also was no error in admitting other statements in the records, including the reference to "heroin abuse," and the statement, in the ambulance records, that the "PT [patient]" "appear[ed] under the influence of a narcotic." Each of these statements were in a portion of the medical records that contained information directly relevant to the defendant's diagnosis and treatment. The reference to "heroin abuse," for example, appeared in the hospital doctor's notes under the heading "ED [Emergency Department] Course and Medical Decision-making." Such statements are admissible under G. L. c. 233, § 79, and our case law. See Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 727 (2016) (references to patient's alcohol intoxication in medical records admissible in prosecution for operating under the influence).
Judgments affirmed.