Opinion
13-P-851
05-02-2016
COMMONWEALTH v. NANCY F. LINCOLN.
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
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of drugs, third offense, and negligent operation of a motor vehicle. In this consolidated appeal from her convictions and the order denying her motion for a new trial, she claims that the judge erroneously admitted police opinion testimony, that the prosecutor committed reversible error in his closing argument, and that her trial counsel was ineffective. We affirm.
The Commonwealth entered a nolle prosequi on an additional charge of possession of a class B substance. The defendant also was found responsible on a marked lanes violation.
1. Police testimony. Following the defendant's arrest, Athol police Officer Peter Buck performed several tests on the defendant to assess whether she was under the influence of drugs or alcohol. Prior to trial, the defendant filed a motion in limine seeking to limit Buck's testimony as a drug recognition expert. Following a hearing, the judge ruled in the defendant's favor, thereby prohibiting Buck from opining about whether the defendant was under the influence of certain drugs, but allowed him to "testify to some of the observations he made of the defendant, given his experience and training as a police officer and emergency medical technician." The judge also allowed Buck to testify as to any behavioral symptoms he observed "consistent with the use of" heroin and marijuana.
At trial, Buck testified to his extensive training and experience in drug recognition and in detecting whether individuals are under the influence of drugs and alcohol. As concerns the defendant, he testified that her performance on the tests administered was consistent with a person under the influence of heroin and marijuana, and that when he examined her, he observed burn marks on her tongue, red conjunctiva, and fresh puncture marks on her arm just below the crook of her elbow. Buck also related the defendant's admission to him that she had used two bags of heroin and had smoked two marijuana joints earlier that day. Finally, he testified that the defendant had contaminated a urine sample she gave to him with toilet water.
On appeal, the defendant argues that Buck's testimony impermissibly crossed the line into the province of expert opinion. In particular, she takes exception to the testimony that her behavior was consistent with a person under the influence of heroin and marijuana. Because defense counsel did not adequately renew her objection to the testimony at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002); Commonwealth v. Jones, 464 Mass. 16, 18 (2012). Passing on the question of the challenged testimony, overwhelming, unchallenged evidence of the defendant's guilt was presented to the jury, including her admissions of drug use that day, the testimony of the disinterested citizens who reported her erratic driving and condition, and consciousness of guilt evidence as to her contamination of the urine sample. In light of this evidence, we are confident that any error that may have occurred did not materially influence the verdict. See Randolph, supra at 298; Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986) ("Where evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice").
Defense counsel objected on the ground that the testimony was overly "broad" and "theoretical," and that Buck was "making himself an expert without that being appropriate." During a lengthy sidebar discussion, the judge ruled that the prosecutor was to keep the testimony within Buck's experience and observations. Defense counsel agreed. A second objection on the same grounds resulted in a similar ruling.
On this record, defense counsel's objections did not adequately alert the judge to the issues the defendant raises on appeal, i.e., that Buck should not have been allowed to testify to his training, experience, and observations that the defendant's behavior was consistent with the use of heroin and marijuana. Rather, the sidebar tends to show that defense counsel agreed with the judge's rulings, both on the motion in limine and at trial. Accordingly, we deem the issue to be unpreserved. See Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192193 (2002).
2. Closing argument. The defendant challenges the prosecutor's statements referencing Buck's testimony, claiming that she improperly held him out to the jury as an expert. The defendant also claims the prosecutor improperly vouched for Buck's credibility. Defense counsel objected to the portion of the closing emphasizing Buck's "additional training for persons under the influence of drugs or alcohol." Even analyzing each statement under the more rigorous prejudicial error standard, no reversible error occurred given the nature of the case against the defendant. See Commonwealth v. Wilson, 427 Mass. 336, 353 (1998); Commonwealth v. McCravy, 430 Mass. 758, 765 (2000) ("[E]ven grossly improper statements by a prosecutor will not require a new trial when the evidence of guilt is overwhelming"). Moreover, the judge instructed the jury at several points during the trial that the attorney's statements are not evidence and that the jury must follow their "own recollection of the testimony."
Rebutting the defendant's testimony that she did not use illegal drugs on the day of her arrest, the prosecutor stated, "Well, why would [Buck] make it up?"
3. Ineffective assistance of counsel. The defendant claims that her trial counsel was ineffective for failing to pursue a motion to suppress the statements she made admitting that she had used drugs on the day of her arrest. We review the judge's denial of the defendant's motion for a new trial for an abuse of discretion. Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). "In order to show that counsel was ineffective for failing to file a motion to suppress evidence, the defendant must show such a motion likely would have succeeded." Commonwealth v. Buckman, 461 Mass. 24, 40 (2011).
The docket indicates that a motion to suppress statements was filed on November 11, 2010. The record shows no further action taken on the motion.
Citing the arrest reports, an affidavit from the arresting officer, and his own recollection of the case and the defendant, the motion judge, who was also the trial judge, concluded that defendant had voluntarily and intelligently waived her Miranda rights prior to making the statements. For that reason, he concluded that pursuit of the motion to suppress likely would have been futile. The decision is well supported and was not an abuse of discretion.
The judge likewise did not abuse his discretion in declining to hold an evidentiary hearing on the motion. See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Wolohojian, Kinder & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 2, 2016.