Opinion
14-P-872
05-13-2015
COMMONWEALTH v. ISAIAS SANCHEZ.
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, Isaias Sanchez, was convicted of negligent operation of a motor vehicle and operating under the influence of alcohol (second offense). On appeal, he argues that testimony from a State police trooper and alleged misstatements by the prosecutor require reversal of the convictions. We affirm.
Background. On October 3, 2010, Trooper McDonald stopped the defendant's vehicle northbound on Route 3 in Chelmsford around 1:00 A.M. The trooper observed the car traveling about twelve to fourteen miles per hour below the speed limit in the left lane, creating a traffic jam for about seven cars behind the defendant and weaving back and forth rapidly between the lanes. The defendant was the only occupant. The trooper pulled over the vehicle and observed that the defendant's eyes were bloodshot and glassy. The trooper smelled a strong odor of alcohol and saw an open container of alcohol on the floor of the vehicle. The defendant stated that he had not been drinking and was lost. He was slurring his speech, and he said that he was coming from Boston and going to Boston.
The defendant then admitted that he had been drinking. The trooper administered the one-legged stand field sobriety test, on which the defendant "did not do well." The trooper then instructed the defendant on a walk-and-turn test, but the defendant informed the trooper that he had a leg injury. The trooper declined to administer the test and arrested him.
At trial on November 14, 2012, after the prosecutor's opening statement, the defendant's motion for a mistrial or dismissal was denied. A jury found him guilty of both charges the next day. He was found guilty of the second offense in a jury-waived trial. He was sentenced, and this appeal followed.
Opinion testimony. The defendant argues that lay testimony from Trooper McDonald, who stated twice that "I formed the opinion that he was operating a motor vehicle under the influence of alcohol," requires reversal. We disagree.
Defense counsel objected only on the second instance of the testimony and did not specify his reason.
A lay witness may offer an opinion on a defendant's level of 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." Commonwealth v. Canty, 466 Mass. 535, 544 (2013). An error may be deemed harmless if "it did not influence the jury, or had but very slight effect." Commonwealth v. Woods, 36 Mass. App. Ct. 950, 952 (1994), S.C., 419 Mass. 366 (1995).
Two of the cases that the defendant cites as primary support for the impropriety of the trooper's testimony Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012), and Commonwealth v. Canty, 466 Mass. at 544 were decided after his trial.
Even assuming the correctness of the defendant's assertions, any error was harmless. The trooper's opinion was relatively insignificant given the strength of the Commonwealth's case. The defendant was driving significantly below the speed limit on the highway and was weaving back and forth rapidly between the lanes. His eyes were bloodshot and glassy, and he emanated a strong odor of alcohol at the scene and during booking. An open container of alcohol was in plain view in his car. After lying to the trooper, he admitted that he had been drinking. He was slurring his speech. He stated that he was lost and gave a contradictory answer as to his origin and destination. He also performed poorly on the one-legged stand field sobriety test.
The Commonwealth did not make reference to the trooper's opinion during closing argument. The judge also instructed the jury to consider all the evidence, and he issued careful instructions specifically regarding the trooper's opinion. The trooper's opinion was merely cumulative and "did not influence the jury, or had but very slight effect." Ibid.
The judge instructed the jury:
"During the course of the case you have heard testimony from the state trooper about the defendant's sobriety . . . . Ultimately, it is for you the jury to determine whether the defendant was under the influence of alcohol according to the definition that I've just provided to you. You may consider any opinion you have heard and accept it or reject it, but in the end you and you alone must decide whether the defendant was under the influence of intoxicating liquor."
Second field sobriety test. The defendant contends that the prosecutor made improper reference to a second field sobriety test that the judge ruled was inadmissible refusal evidence, during his opening, redirect, and closing.
One might disagree that this was, in fact, refusal evidence. The defendant was unable to perform the test due to a leg injury, at which point the officer, properly, ended the test. The proper terminology of what occurred has no bearing on the ultimate result.
A refusal to submit to field sobriety tests is generally inadmissible at trial, but if defense counsel raises the issue on cross-examination, a prosecutor may inquire about refusal on redirect. Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 103-105 (2011).
Here, the prosecutor's opening used the plural word "tests," but he did not mention or reference the second test that the trooper declined to administer. Despite the judge's caution to defense counsel that raising the issue could open the door for the Commonwealth, counsel, arguably properly and for tactical reasons, brought up the topic. The prosecutor's redirect in response and references in closing were proper. See ibid.
The jury also might have believed that the prosecutor was referring to the three failed one-legged stand tests.
Closing. The defendant's final argument, that the prosecutor's closing misinterpreted testimony about the defendant driving in the wrong direction, has no merit. The trooper testified that he asked the defendant whether he was scared while driving in the wrong direction, and the defendant "stated that he was scared, but he didn't know what to do and just wanted to get home." The prosecutor argued a reasonable inference from the evidence that the defendant admitted to driving in the wrong direction. See Commonwealth v. Joyner, 467 Mass. 176, 188-189 (2014).
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Judgments affirmed.
By the Court (Kantrowitz, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 13, 2015.