Opinion
14-P-740
07-31-2015
COMMONWEALTH v. JOSEPH J. MEDEIROS.
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, Joseph J. Medeiros, was convicted of operating a motor vehicle while under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a)(1). On appeal he contends that the judge erred in admitting opinion evidence regarding his sobriety and improperly instructed the jury concerning the absence of breathalyzer test results. We affirm.
Background. On October 21, 2002, at about 11:30 P.M., Fall River police Officer Kevin Bshara was on patrol and driving in the area of North Main Street when he saw a vehicle pull into a parking lot serving several businesses, all of which were closed. He followed the vehicle behind the building and observed a man, later identified as the defendant, standing outside the vehicle preparing to relieve himself. Officer Bshara spoke with the defendant for about thirty seconds to one minute and observed that the defendant "seemed to be unsteady on his feet and slurring his speech" and, as a result, he instructed the defendant to sit in his vehicle while he called for assistance. As Officer Bshara returned to the patrol car to make the call, the defendant drove away. Officer Bshara saw two cans of Budweiser beer fall out of the vehicle when the defendant entered the car. Officer Bshara followed the defendant's vehicle with his cruiser lights activated and stopped the defendant. At this point, Officer Bshara detected an odor of alcohol from the defendant, and that his eyes were bloodshot and glossy. The defendant admitted that "he had a few beers," and after he had been arrested and seated in the patrol car, stated that "he had had shots and a beer during lunch . . . [and] returned to work." Then "[a]fter work he went out to eat and had a few more beers." Officer Bshara testified at trial that he "believed [the defendant] was under the influence of alcoholic beverage."
The defendant's trial took place ten years after he was charged because of a series of defaults.
Discussion. 1. Opinion testimony as to defendant's sobriety. The defendant contends that Officer Bshara's testimony that he "believed [the defendant] was under the influence of alcoholic beverage" constituted inadmissible opinion testimony. Because there was no objection to the testimony, we review any error to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
The Supreme Judicial Court recently addressed the question whether a lay witness may testify to his opinion that a defendant is intoxicated in Commonwealth v. Canty, 466 Mass. 535 (2013). There, the court stated:
"[A] lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine 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."Id. at 544. Here, the officer stated that he believed the defendant was "under the influence" and did not opine as to whether the defendant was operating his vehicle while under the influence or whether being under the influence impaired the defendant's ability to operate. Thus, the testimony fell squarely within the parameters of admissible lay opinion as set forth in Canty.
The defendant next contends that even if the officer's testimony would have been admissible as lay opinion, it was nevertheless improper in light of the officer's testimony about his training. Contrary to the defendant's claim, Officer Bshara's remark that he received training from "certified officers in the detection of the operating under the influence" and that "[w]e do practical applications during that course" simply provided a general overview of police officer training and did not imply that Officer Bshara had special expertise beyond that of any other officer.
During his direct examination, Officer Bshara described his training as follows:
Commonwealth: "Could you explain for the jury your training limited to detecting impaired drivers?"
Officer Bshara: "I attended the police academy in Weymouth. . . ."
Commonwealth: "And during the course of your training in the academy, are you trained in conducting investigations involving impaired drivers?"
Officer Bshara: "Yes. During that time we received training from certified officers in the detection of the operating under the influence. We do practical applications during that course."
Even if we were to assume that the testimony had been erroneously admitted, such admission "did not 'materially influence[] the guilty verdict.'" Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (citation omitted). The Commonwealth introduced ample additional evidence to prove that the defendant was intoxicated, which included Officer Bshara's observations about the defendant's demeanor and appearance and the defendant's admission that he had been drinking alcohol.
The defendant also argues that the judge erred by failing to instruct the jury that Officer Bshara's opinion did not constitute expert testimony. Because the defendant did not request this instruction and did not object to the judge's omission of the instruction, our review is limited to whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Peterson, 53 Mass. App. Ct. 388, 392 (2001). As noted, Officer Bshara's testimony about his training was general and did not imply any particular expertise. Furthermore, as the Commonwealth notes in its brief, the judge did instruct the jury to carefully evaluate the officer's credibility. While we disagree with the Commonwealth's contention that the instruction given was "identical" to the one the defendant contends should have been given, we nevertheless conclude that the instruction did not create a substantial risk of a miscarriage of justice.
Specifically, the defendant contends in his brief that the "judge should have instructed the jury that Officer Bshara's opinion as to sobriety was not an expert opinion based on scientific, technical or other specialized knowledge and was only a lay opinion that was intended to convey the officer's perceptions to help in the jury's understanding and that deserved no greater weight than the jurors' own nonscientific opinions based on common experience and knowledge."
2. Jury instruction. Finally, the defendant maintains that the judge erred in giving a so-called Downs instruction, in which the jury are instructed not to think about or otherwise consider the fact that no evidence was offered concerning a breathalyzer test. See Commonwealth v. Downs, 53 Mass. App. Ct. 195 (2001). The defendant acknowledges the holding in Downs, but asks us to overrule it and to limit giving the instruction to circumstances where it is requested by the defendant. Here, the defendant objected to the instruction and contends that this instruction violated his right against self-incrimination guaranteed by art. 12 of the Massachusetts Declaration of Rights. Because the issue was preserved, we review for harmless error. See Commonwealth v. Reyes, 464 Mass. 245, 259 (2013).
The judge instructed the jury as follows: "Now you are not to mention or consider in any way, either for or against either side, that there is no evidence of a breathalyzer. Do not consider that in any way. Do not mention it and put it completely out of your mind. It is the responsibility of the Commonwealth to prove the defendant guilty, again, beyond a reasonable doubt from the evidence that was presented here during the course of the trial."
There was no error. The judge properly instructed the jury in accordance with Downs, and did not repeat the error noted in Commonwealth v. Gibson, 82 Mass. App. Ct. 834, 837-838 (2012). More fundamentally, nothing in the judge's instruction implied that the defendant had refused to take a breathalyzer test. Contrast id. at 837 (by adding to Downs instruction that "a person does not have to take [a breathalyzer test]," judge improperly implied that defendant had refused to submit to one).
Judgment affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 31, 2015.