Opinion
19-P-1410
06-18-2020
COMMONWEALTH v. DAVID HUSBAND.
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, after a District Court jury trial, of operating a motor vehicle while under the influence of intoxicating liquor. He argues (1) that the arresting officer was erroneously permitted to give opinion testimony touching on the ultimate issue of guilt, and (2) that after the prosecutor misstated the evidence in closing argument, the judge erred in not giving a curative instruction. We are not persuaded by either argument and thus affirm the conviction.
1. Opinion testimony. Over the defendant's objection, the arresting officer testified that when the defendant got out of his car at the officer's request, the defendant "stagger[ed]" and then placed his hand into the car "to maintain balance," and that the defendant had "difficulties in maintaining balance." The defendant asserts that this testimony came too close to opining that his ability to drive was impaired. If this testimony expressed an opinion at all, it was permissible. "The rule that witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description." Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961) (judge had discretion to permit witnesses to use words "boisterous" and "in an arrogant manner" to describe actions of person they observed). See Mass. G. Evid. § 701 (2020). It is permissible to testify to a defendant's "poor performance on [a] field sobriety test," Commonwealth v. Canty, 466 Mass. 535, 545 (2013), which may include testimony that, during such a test, a defendant "raised his arms to maintain balance." Id. at 537. Cf. Commonwealth v. Gerhardt, 477 Mass. 775, 787 (2017) ("A police officer may testify to observed physical characteristics of the driver such as blood shot eyes, drowsiness, and lack of coordination").
Nor did the testimony come too close to opining that the defendant was guilty. "Provided that a witness does not directly offer an opinion regarding the defendant's guilt or innocence in a criminal case . . . we have no rule in Massachusetts prohibiting an opinion that touches on an ultimate issue." Canty, 466 Mass. at 543. "[W]e have long recognized that opinion testimony of lay witnesses as to whether a person was intoxicated from the consumption of alcohol is admissible at trial." Id. at 540. A lay witness may not testify that a defendant's "ability to drive was diminished," but may testify, in response to a question about sobriety, that a defendant was "probably impaired." Id. at 544. Given these guideposts as to what constitutes an impermissible opinion on guilt, we have no trouble concluding that testimony about the defendant's difficulty maintaining his balance fell well on the permissible side of the line.
2. Closing argument. The prosecutor's closing argument referred several times to an empty bottle of rubbing alcohol having been found in the back seat of the defendant's car. This misstated the arresting officer's testimony, which was that he did not recall whether the bottle of rubbing alcohol found in the back seat was open. The defendant, however, did not object after the prosecutor's argument; instead, he did so only after the judge had delivered her final charge to the jury. In response, the judge stated her view that to the extent there was an issue about "matching memories, . . . the jury's been amply instructed [that] their memory controls and [that] there's no evidence in closings anywhere."
"The defendant's objection to the statement, made after the jury instructions, was too late," and we therefore review for whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Allison, 434 Mass. 670, 687 (2001). We see no error in the judge's decision not to give any further curative instruction. The judge had already instructed the jury three times that closing arguments were not evidence and that, to the extent counsel in a closing argument described the evidence in a manner that differed from the jury's memory, it was the jury's memory that controlled. Moreover, the prosecutor himself, at the end of his closing argument, told the jury that "your memory of the case, if what you remember is different from what I've represented or [from] what defense counsel represented, it's your memory that prevails."
She did so once at the outset of the trial, again immediately before the closing arguments, and a third time during her final charge.
Even if there were error, there was no substantial risk of a miscarriage of justice, in view of the strength of the Commonwealth's case. The defendant was found alone in the driver's seat of a car that was irregularly parked, on a public way, with its engine running. His eyes were glassy and blood shot. He had a strong odor of alcoholic beverage on his breath, was unsteady on his feet, staggered and had difficulty maintaining his balance, and did not perform well on some parts of the field sobriety tests. A partially consumed can of cold Busch Light beer (of which the defendant denied any knowledge) was found under the driver's seat, an empty can of Busch Light was found in the passenger side of the car, another was found in the glove compartment, and three more were found underneath the car. There was an open container of rubbing alcohol in the center console, with some of the alcohol missing; aside from the other bottle in the back seat, there were no medical supplies visible in the car and the officer observed no cuts or wounds on the defendant. Both the arresting officer and the booking officer formed the opinion that the defendant was intoxicated.
Judgment affirmed.
By the Court (Sacks, Singh & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 18, 2020.