Opinion
No. 12–P–27.
2013-03-20
COMMONWEALTH v. Jeffrey FLINKSTROM.
By the Court (CYPHER, RUBIN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this case, there was substantial evidence of the defendant's operation of a motor vehicle while under the influence of intoxicating liquor (OUI). See G.L. c. 90, § 24(1)( a )(1). Not only was there evidence of his unsteady driving and sideswiping of Jody Young's vehicle and evidence of his inability to perform two field sobriety tests, but there was also Young's testimony that when the defendant eventually pulled over, he staggered out of his vehicle smelling of alcohol and slurring his speech. Young testified that he told the defendant he was hammered and that, in response to a question why his friends allowed him to drink so much before driving, the defendant stated that they “know how much I can handle.” The jury could have found that the defendant said he didn't want to get an OUI, that he offered to resolve the matter without calling the police because of this, and that he twice attempted to drive away before police arrived. There was also an empty bottle of vodka under the driver's seat of his truck. Even assuming that the testimony that the defendant could not follow a pen with his eyes without moving his head, or the testimony about certain accidents being evidence of impaired driving, or both, were not properly admitted, in light of the strength of the Commonwealth's evidence, any error created no substantial risk of a miscarriage of justice, which is the standard the defendant must meet since there was no objection at trial to the admission of either piece of testimony. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Although defense counsel objected to a first question regarding the pen test, and this objection was sustained, there was no objection to the reformulated question answered by the witness. We do think that the officer's testimony that the defendant was so drunk as to be unable to safely operate his motor vehicle to the extent that an accident was caused was improper testimony of the officer's opinion of the ultimate issue to be decided in the case. See Commonwealth v. Rodriguez, 456 Mass. 578, 592 (2010). However, again, given the overwhelming evidence in the Commonwealth's case, we do not think that the admission of this testimony, to which, again, no objection was made at trial, created a substantial risk of a miscarriage of justice.
Finally, even assuming it was a violation of the sequestration order to allow the testimony of Officer Dillon, the judge's decision to allow the testimony was not an abuse of discretion given the judge's conclusion that the contact between the officer and the other witness did not present the concerns that animated the issuance of the order in the first place. Likewise, the denial of the motion for a mistrial based on the introduction of this testimony was not an abuse of discretion.
In light of our conclusions with respect to each of the claimed errors, the defendant's last argument, that his counsel rendered him ineffective assistance, also fails. Commonwealth v. Curtis, 417 Mass. 619, 624–625 n. 4 (1994).
Judgment affirmed.