Opinion
15-P-350
03-30-2016
COMMONWEALTH v. DENNIS B. PIENIAK.
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 District Court, the defendant was convicted of driving a motor vehicle while under the influence of alcohol, leaving the scene of an accident involving property damage, and negligent operation of a motor vehicle. On appeal, he challenges the admission of certain evidence. We affirm.
The jury specifically found the defendant guilty under both the "per se" and "impaired ability" theories of the crime. Commonwealth v. Colturi, 448 Mass. 809, 810 (2007).
Around 7:00 P.M. on April 21, 2013, police responding to the scene of an accident on Route 20 at the Palmer-Monson town line eventually located the defendant a short distance away in a wooded area. The defendant was brought to the emergency room where blood tests indicated that his blood alcohol serum levels were 291 milligrams per deciliter of blood (mg/dl). A Commonwealth expert testified that this was equivalent to a blood alcohol level of .246 percent (that is, over three times the legal limit). The defendant's defense was that he consumed alcohol only after the car crash (and that the accident was the result of mechanical failure).
On appeal, the defendant does not challenge that his blood alcohol serum level following the accident was 291 mg/dl, or that this was equivalent to a blood alcohol level of .246 percent. Instead, he targets testimony about the blood test results from an emergency room nurse who dealt with the defendant following the accident. After that witness characterized the results as "high," the defendant objected and this objection was sustained based on a lack of foundation. Eventually, in response to the question, "[W]hat's the range of blood levels that you see?" the nurse testified, "Some people come zero, some people come 10, some people come above 300's." When the defendant objected, the judge allowed the answer to stand but cut off that line of questioning.
The defendant argues that the judge erred in allowing the nurse's answer to stand because her expertise to discuss the range of blood alcohol levels had not been demonstrated. We need not resolve whether this was error, because in any event it did not amount to prejudicial error. Any prejudicial impact that such testimony could have had was completely overshadowed by the unchallenged evidence that the defendant's blood alcohol level was over three times the legal limit. Especially where the defense was that the defendant became intoxicated only after the accident occurred, we are confident that the nurse's testimony "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
Judgments affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 30, 2016.