Opinion
22-P-280
12-08-2022
COMMONWEALTH v. Shannon WHITE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Shannon White, was found guilty of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a ) (1), and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a ). On appeal, she argues that (1) there was insufficient evidence to show that she was under the influence of alcohol at the time she operated the vehicle, (2) the trial court erred in allowing testimony that she was "drunk" because that testimony invaded the province of the jury, and (3) the trial court judge erred in failing to, sua sponte, provide a curative instruction with respect to the officer's testimony that the defendant was "drunk." We affirm.
The defendant was also found responsible for a marked lanes violation, G. L. c. 89, § 4A, and for registration not in possession, G. L. c. 90, § 11.
No claim is made with regard to the defendant's conviction for negligent operation of a motor vehicle or her civil infractions.
Background. We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
On June 7, 2019, at approximately 10:28 P.M. , towns of Hardwick and New Braintree police officer Ryan Gentile observed a sport utility vehicle (SUV) travelling in front of him cross over the white fog line and almost strike a guardrail. He immediately initiated a traffic stop. The SUV pulled to the side of the road and "came to a jerking stop as if the brakes had been pressed too hard."
On approach, Officer Gentile observed the defendant in the driver's seat of the SUV. The defendant's eyes were bloodshot and glassy, and Officer Gentile noticed the strong smell of an alcoholic beverage. When he asked the defendant where she was coming from, she provided a slurred response that he could not understand. After asking her to clarify, the defendant stated that she was coming from "wrinkle village," by which she meant "Quabbin Estates," because that's where her mother lived, and that it was her mother's birthday. When asked what she had to drink that night, she responded that she had "two mixed drinks with Kahlua." When asked at what time she had had the drinks, she responded "about seven." As he was speaking with the defendant, Officer Gentile observed that the strong odor of alcohol was coming from the defendant's breath. She was able to provide her license upon request, but, after fumbling through the papers in her glove box, could not locate her vehicle registration.
Kahlua and Dr. McGillicuddy's, discussed infra, are alcoholic beverages.
At this point, Officer Gentile asked the defendant to step out of the vehicle "for some standardized field sobriety tests." She complied, and, as she did so, he noticed that she grabbed the door jamb of the vehicle and appeared to be unsteady on her feet. During the standardized field sobriety tests, the defendant repeatedly had difficulty following instructions and maintaining her balance. Following these tests, Officer Gentile concluded that the defendant was "drunk."
Officer Gentile administered two standardized field sobriety tests, the walk-and-turn test and the one-leg stand test. During the walk-and-turn test, the defendant lost her balance as she attempted to align her feet heel-to-toe and was eventually unable to do so. Additionally, she repeatedly attempted to start the test before being instructed to do so. When attempting the test, she was unable to walk heel-to-toe and, instead of turning around to walk back as instructed, attempted to walk backwards despite stating that she had understood Officer Gentile's instructions. During the one-leg stand test, the defendant could not keep her arms by her sides, point her toe as instructed, or maintain her balance.
Officer Gentile arrested the defendant and placed her in the back of his police cruiser. During an inventory search of the defendant's vehicle, he discovered an empty wine bottle and an empty "nip" bottle of Dr. McGillicuddy's. After placing the defendant in his vehicle, Officer Gentile noticed that the vehicle's interior developed a strong odor of alcohol that was not present before. Later, during booking, the defendant commented that she was "fucked" and would be in trouble at her new job. Officer Gentile described her as "giggly" during the booking process.
As stated above, at trial, when asked by the prosecutor whether he formed an opinion about the defendant's level of sobriety after failing the standardized field sobriety tests, Officer Gentile stated that it was his opinion "[t]hat she was drunk." The jury found the defendant guilty of both operating a motor vehicle under the influence of alcohol and negligent operation of a motor vehicle.
Discussion. 1. Sufficiency of the evidence. "In determining the validity of a claim challenging the sufficiency of the Commonwealth's evidence at trial, we review the evidence in the light most favorable to the Commonwealth to determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting Latimore, 378 Mass. at 677. "The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014).
"In order to be convicted of an OUI, the Commonwealth must prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of intoxicating liquor." Commonwealth v. Jewett, 471 Mass. 624, 635 (2015). The defendant argues that the Commonwealth failed to prove, irrespective of intoxication, that her ability to operate a motor vehicle was actually impaired. See Commonwealth v. Connolly, 394 Mass. 169, 173 (1985) (proving operation of motor vehicle while under influence of intoxicating liquor requires "[proof] beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely"). She further asserts that some common indicia of intoxication do not appear as part of the facts of this case, and, therefore, a rational trier of fact could not have concluded that her ability to operate a motor vehicle had been diminished by alcohol consumption. We are not persuaded.
The defendant stipulated to the first two elements at trial and does not contest them now.
The defendant argues that indicia not present here include "witnesses asserting to having seen the defendant drinking, exiting a bar, refusing to stop for police or exhibiting odd behavior."
The Commonwealth provided ample evidence that allowed a rational trier of fact to conclude that the defendant's ability to operate a motor vehicle was impaired by her consumption of alcohol. See Commonwealth v. Orben, 53 Mass. App. Ct. 700, 702-703 (2002) (conviction for operating under influence of intoxicating liquor where defendant displayed issues with balance, glassy and bloodshot eyes, slurred and incomprehensible speech, and odor of alcohol). Officer Gentile testified that he observed the defendant swerve and almost strike a guardrail before pulling her over. He further testified that when she pulled to the side of the road, she "came to a jerking stop." Both of these observations alone were sufficient to reasonably allow the jury to conclude that the defendant was having difficulty operating her vehicle. See Commonwealth v. Canty, 466 Mass. 535, 536-538 (2013) (defendant convicted of operating under influence of intoxicating liquor after being pulled over for swaying over fog line and nearly striking curb). However, there is more; Officer Gentile also testified that the defendant's balance and motor functions appeared impaired during the standardized field sobriety tests. This testimony was also sufficient to permit the jury to conclude that the defendant was impaired. See Orben, 53 Mass. App. Ct. at 702-703.
Impairment alone, however, is insufficient to find guilt under G. L. c. 90, § 24 (1) (a ) (1) ; the Commonwealth must also prove that the impairment was the result of the defendant's consumption of alcohol. Jewett, 471 Mass at 635 ; Connolly, 394 Mass. at 173. We conclude that the Commonwealth met its burden. Indeed, many classic indicia of intoxication were present in this case. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) (describing classic indicia of intoxication). Officer Gentile testified that the defendant smelled of alcohol, had glassy and bloodshot eyes, slurred her speech, struggled to maintain balance, and admitted to consuming alcohol earlier in the evening. Additionally, an empty bottle of wine and an empty nip bottle were discovered in the defendant's vehicle. As a result, a rational trier of fact could reasonably have inferred that the defendant's impaired driving was the result of her intoxication. Id. at 393 (jury may infer intoxication caused impaired driving).
2. Opinion testimony regarding sobriety. The defendant further argues that Officer Gentile's testimony that in his opinion she was "drunk" should not have been admitted. She argues that this testimony impermissibly spoke to the ultimate question of whether she was operating while under the influence of intoxicating liquor, and therefore created a substantial risk of a miscarriage of justice. She relatedly argues that the judge abused his discretion by failing to, sua sponte, cure this error with a curative jury instruction. The assertion is meritless. Because we conclude that admission of this testimony was not error, no curative instruction was required.
The defendant did not object to Officer Gentile's testimony or request a curative jury instruction at trial, therefore "[o]ur review is limited to whether there was error, and if so, whether it created a substantial risk of a miscarriage of justice." Orben, 53 Mass. App. Ct. at 703, citing Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978).
"[L]ay 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 h[er] apparent intoxication." Canty, 466 Mass. at 541, quoting Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). "Provided that a witness does not directly offer an opinion regarding the defendant's guilt or innocence in a criminal case, we have no rule in Massachusetts prohibiting an opinion that touches on an ultimate issue" (citation omitted). Canty, 466 Mass. at 543.
Here, Officer Gentile testified to the defendant's apparent intoxication, but did not opine as to the ultimate question of whether the defendant was operating a motor vehicle while under the influence of intoxicating liquor. See Jewett, 471 Mass. at 635. It is undisputed that, in response to the Commonwealth's question about his opinion regarding the defendant's level of sobriety, Officer Gentile responded that, in his opinion, "she was drunk." This statement makes use of the colloquial term "drunk" to describe the defendant's status as intoxicated but nevertheless merely represents a lay opinion regarding the defendant's sobriety and does not touch on her ability to drive a vehicle. Jones, 464 Mass at 17 n.1. There was no error. Canty, 466 Mass. at 540 ; Jones, 464 Mass at 17 n.1. See also Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 39, 42-43 (2016).
No curative jury instruction was required because no error occurred. Jones, 464 Mass at 17 n.1.
Judgments affirmed.