Opinion
20-P-1063
04-29-2022
COMMONWEALTH v. John J. SULLIVAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was convicted of operating under the influence of intoxicating liquor (OUI). The defendant appeals from his conviction. Because we are satisfied that the Commonwealth presented sufficient evidence to prove the OUI charge and we conclude that the admission of the arresting officer's testimony about the defendant's level of intoxication created no substantial risk of a miscarriage of justice, we affirm.
At the request of the Commonwealth, the judge dismissed a charge of failure to stop for the police. After trial, the judge found the defendant responsible for three civil infractions: two counts of failure to stop or yield, and one for possession of an open container of alcohol in a motor vehicle.
1. Sufficiency of evidence of defendant's impairment by alcohol. In reviewing the sufficiency of the evidence, we look to see "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Merola, 405 Mass. 529, 533 (1989), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
On appeal, the defendant does not challenge the sufficiency of the evidence of the elements of operation or public way. See G. L. c. 90, § 24 (1) (a )(1).
The jury could have found the following facts. At approximately 9 P.M. on February 17, 2019, Boston police Officer Franklin Centeio was on patrol in the Dorchester section of Boston when he saw a near collision caused by the defendant turning his car left into oncoming traffic. To avoid colliding with the defendant's car, the oncoming vehicle nearly hit the sidewalk. Centeio put on his emergency lights and activated his siren in an attempt to stop the defendant's car. Rather than stopping, the defendant turned left, drove through a red stop light, and continued for "blocks" before stopping in the middle of the road.
The trial transcript spells the officer's last name phonetically as "Sentao" and "Senteo." We use the spelling adopted by both parties in their briefs.
For convenience, we refer to the car being driven by the defendant as "his car." Although it was undisputed that the car did not belong to the defendant, nothing turns on this fact.
Centeio got out of his vehicle and walked up to the defendant's car. He smelled a strong odor of alcohol as he approached, and was able to see an open and nearly empty one and one-half liter bottle of hard liquor in the car's center console. The defendant, who was alone in the car, appeared "extremely confused." The defendant told Centeio that he had consumed three beers and smoked marijuana, although he did not provide a timeframe for that consumption.
Centeio testified that it was "Captain Morgan." There was no objection to this testimony, and the jury were free to consider it substantively. Cf. Commonwealth v. Stewart, 398 Mass. 535, 543 (1986).
Centeio directed the defendant out of the car and administered field sobriety tests: the one-legged stand, which the defendant attempted twice, and the nine-step walk and turn test. The defendant was unable to maintain his balance and did not perform any of these tests to Centeio's satisfaction. Centeio formed the opinion that the defendant was "deemed inoperable to operate the motor vehicle," i.e., intoxicated.
As we note, infra, the Commonwealth concedes that this statement was improper under Commonwealth v. Canty, 466 Mass. 535, 541 (2013). Nonetheless, we include the statement in our analysis; it is well settled that we consider even improperly admitted evidence in assessing the sufficiency of the evidence supporting a conviction. See Commonwealth v. Bacigalupo, 455 Mass. 485, 490 (2009).
The Commonwealth's evidence was more than sufficient to establish that the defendant's ability to operate his car safely had been diminished by alcohol. See, e.g., Commonwealth v. Jewett, 471 Mass. 624, 636 (2015) (that defendant "drove erratically, weaved and crossed lane markings, made overly wide turns, nearly struck a parked vehicle, and refused to comply with police demands to stop" among evidence supporting OUI conviction); Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) (evidence of driver's imbalance, odor of alcohol, slurred speech, inability to complete field sobriety tests, and failure to park as instructed sufficient to support OUI conviction); Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 545 (2008) (evidence of driver's erratic driving, weaving through traffic, bloodshot eyes, scent of alcohol, slurred speech, and unsteady gait, with presence of empty alcohol containers in vehicle, sufficient to support OUI conviction). That there was evidence from which the jury could have reached a verdict other than the one that they did reach does not alter our conclusion.
2. Officer's opinion testimony. "In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication." Commonwealth v. Canty, 466 Mass. 535, 541 (2013), quoting Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). Here, the prosecutor asked Centeio on direct examination, "after observing those two [field sobriety] tests, did you come to any conclusion about the [d]efendant's intoxication?" Centeio responded, "That he's deemed inoperable to operate the motor vehicle." There was no objection to this testimony. On appeal, the defendant argues that the testimony amounted to an improper lay opinion that the defendant's ability to drive was impaired by alcohol. The Commonwealth concedes as much. We agree, but conclude that the error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The prosecutor's question was proper. See Canty, 466 Mass. at 540 (lay opinion testimony about intoxication admissible at trial). To the extent we can interpret the officer's answer, however, it was not responsive to the question asked, and instead suggested his opinion that the defendant was unable to drive because he was intoxicated. If it did so, it also came impermissibly close to stating the officer's opinion on the ultimate issue of the defendant's guilt or innocence, and so was inadmissible. See id., quoting Commonwealth v. Hamilton, 459 Mass. 422, 439 (2011) ("[n]o witness, including a police witness, may testify as to a defendant's guilt or innocence").
We are confident, however, that in this case, the offending testimony "did not ‘materially influence[ ]’ the guilty verdict." Alphas, 430 Mass. at 13, quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). We consider that the testimony at issue was opaque, and subject to interpretations other than the one the defendant argues. We take into account that it comprised a single line in a transcript spanning some sixty pages of testimony, and note that the prosecutor did not return to the issue in his examination and did not argue it in closing. The judge properly instructed the jury on their obligation to find the facts of the case based on all evidence presented to them, and on their role as the fact finders. The evidence here was, if not overwhelming, very strong. There was no substantial risk that justice miscarried based on Centeio's opinion testimony.
To the extent the defendant contends that the judge erred in failing to instruct the jury consistent with Instruction 5.310, Supplemental Instruction 1, of the Criminal Model Jury Instructions for Use in the District Court (2019), we are not persuaded. Certain portions of the trial transcript are designated as inaudible. From what we can glean from the remainder of the transcript, it does not appear that the defendant requested that instruction, and the judge was not required to give it sua sponte.
Conclusion. The judgments are affirmed.
Although the defendant states in his brief that trial counsel provided him with ineffective assistance in failing to object to Centeio's opinion testimony, he makes no argument and provides no legal support for that statement, and we do not consider it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("appellate court need not pass upon questions or issues not argued in the brief").
So ordered.
Affirmed