Opinion
No. 12–P–1206.
2013-09-3
COMMONWEALTH v. Kevin H. GIBLIN.
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of operating a motor vehicle under the influence of alcohol, G.L. c. 90, § 24(1)( a )(1), and negligent operation of a motor vehicle, G.L. c. 90, § 24(2)( a ). We affirm.
1. The defendant claims that the arresting officer, a State trooper, should not have been allowed to testify that the defendant “failed” three field sobriety tests. Because there was no objection at trial, we review only to determine if any error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Field sobriety tests are not scientific tests. Commonwealth v. Sands, 424 Mass. 184, 188 (1997). See Commonwealth v. McGrail, 419 Mass. 774, 777 n. 7 (1995) (“Field sobriety tests are dexterity tests”); Commonwealth v.Schutte, 52 Mass.App.Ct. 796, 800–801 (2001). Accordingly, cases recognize that a police officer may offer lay opinion as to the adequacy of a defendant's performance on such tests. See, e.g., Commonwealth v. Hampe, 419 Mass. 514, 516 (1995); Commonwealth v. Bishop, 78 Mass.App.Ct. 70, 71 n. 2 (2010). However, even if it would have been preferable to confine the testimony to the instructions given for each test, the standards and expectations for successful performance, as well as a description of the defendant's actions, and not to introduce the opinion question with the words “based on your training and experience,” we perceive no substantial risk of a miscarriage of justice. The trooper's opinion added little to his descriptions of the tests and his observations of the defendant's performance. Furthermore, the judge carefully instructed the jury that it was their role to determine whether the tests were “a reliable indicator of whether the defendant's ability to operate a motor vehicle safely was diminished” and to decide what weight, if any, to give to the trooper's testimony.
2. The defendant argues that the trooper should not have testified that he “came to a decision” that the defendant “was operating under the influence of alcohol.” Because this, too, is an unpreserved claim, we again employ the substantial risk of a miscarriage of justice standard of review. Commonwealth v. Alphas, supra at 18–19.
“In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence,” although such witnesses may offer their lay opinion as to a defendant's “apparent intoxication.” Commonwealth v. Jones, 464 Mass. 16, 17 n. 1 (2012). Here, where the arresting officer phrased his opinion using the precise language of the charge, his statements went beyond permissible lay testimony and crossed the line. Nevertheless, we discern no substantial risk of a miscarriage of justice. The trooper's narrative, independent of the impermissible opinion, strongly supported the verdict.
And, in view of the judge's instructions, the jury could not have misunderstood that it was their exclusive role to find the facts, assess the credibility of witnesses, and determine the ultimate issue.
The defendant was observed speeding and driving erratically in the minutes before he was stopped. After being pulled over, the defendant rolled down all four car windows. The trooper testified to the “overwhelming odor of alcoholic beverages emanating from the vehicle,” and to the defendant's bloodshot eyes, slurred speech, and unsteadiness on his feet. The defendant first told the trooper that he had consumed two glasses of wine, and later stated that he had drunk four. He became belligerent when asked to perform field sobriety tests, and was unable to complete them successfully.
3. Cross-examination of the defendant. The defendant argues that the prosecutor impermissibly asked the defendant to comment on the veracity of the trooper's testimony about the defendant's performance on the sobriety tests.
The first and third questions fairly may be interpreted as asking the defendant whether the trooper misperceived or misremembered events, and did not require the defendant to opine on the trooper's veracity. See, e.g., Commonwealth v. Richenburg, 401 Mass. 663, 673–674 (1988); Commonwealth v. Johnson, 412 Mass. 318, 328 (1992). While the second question (as to which there was no objection) was improper, see Commonwealth v. Elam, 412 Mass. 583, 586 (1992), we are unpersuaded that it resulted in a substantial risk of a miscarriage of justice. Again, the judge's instructions were prophylactic (he instructed the jury at length about how they were the “sole judges” of witness credibility). Furthermore, the error was not compounded repeatedly or in a manner that was unduly prejudicial. See Commonwealth v. Johnson, supra at 328; Commonwealth v. Alphas, supra at 19–20. Compare Commonwealth v. Triplett, 398 Mass. 561 (1986); Commonwealth v. Long, 17 Mass.App.Ct. 707 (1984). Citing cases such as Commonwealth v. Dwyer, 448 Mass. 122, 138–139 (2006), and Commonwealth v. Ewing, 67 Mass.App.Ct. 531, 546 (2006), S.C., 449 Mass. 1009 (2007), the defendant contends that even if any single error did not create a substantial risk of a miscarriage of justice, the cumulative impact of the errors did. The errors in those cases were much more substantial than those at issue here. Here, given the strength of the Commonwealth's case and the correctness of the instructions, the errors did not create a substantial risk of a miscarriage of justice.
The prosecutor first asked if the trooper was “wrong” that the defendant improperly recited the alphabet. He then asked if “the trooper again is not telling the truth” that the defendant did not count during the one-legged stand test, as instructed. Shortly thereafter, the prosecutor told the defendant, “Again, you say the trooper is not telling—,” and defense counsel objected. The judge overruled the defendant's objection, but the prosecutor nonetheless altered his phrasing to “You say the trooper's not correct?”
4. Motion for required finding of not guilty. The Commonwealth's evidence on the negligent driving charge was ample to satisfy the Latimore standard. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). The trooper testified that before the defendant was stopped, he was driving at eighty to eighty-five miles per hour on the highway and abruptly changing lanes multiple times without signaling. At one point he veered over the left lane's solid white line close to the guardrail; later he drifted into the right breakdown lane. His car swerved from side to side on the exit ramp, traveling between fifteen and twenty miles per hour over the speed limit. The defendant almost struck the rear of a tractor trailer truck waiting to merge at the end of the exit ramp. After the defendant stopped briefly, he then accelerated over the cement barrier separating the two roads at the merger in order to drive around the truck. He then regained a speed of eighty miles per hour before the trooper pulled him over.
The defendant's emphasis upon the late hour, the paucity of cars on the road, and the existence of clear weather conditions is misplaced and unavailing. See Commonwealth v. Constantino, 443 Mass. 521, 526–527 (2005) (“[A] person may operate a vehicle in such a way that would endanger the public although no other person is on the street”). “The statute only requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did.” Commonwealth v. Ferreira, 70 Mass.App.Ct. 32, 35 (2007), citing Commonwealth v. Duffy, 62 Mass.App.Ct. 921, 923 (2004).
Judgments affirmed.