Commonwealth v. Canty, SJC–11315.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation998 N.E.2d 322,466 Mass. 535
Docket NumberSJC–11315.
Decision Date06 November 2013

466 Mass. 535
998 N.E.2d 322

Joseph J. CANTY.


Supreme Judicial Court of Massachusetts,

Argued Sept. 3, 2013.
Decided Nov. 6, 2013.

[998 N.E.2d 324]

James P. Vander Salm, Worcester, for the defendant.

Ellyn H. Lazar–Moore, Assistant District Attorney, for the Commonwealth.



This case presents two issues. First, where a defendant is charged with operating a motor vehicle while under the influence of alcohol, may a police officer offer testimony that, in his opinion, the defendant's ability to drive was diminished by the consumption of alcohol, or that the defendant was “probably impaired” by

[998 N.E.2d 325]

alcohol? Second, where an indictment identifies the statute that a defendant has allegedly violated but fails to allege an essential element of proof in describing the offense, does due process require that a guilty plea to that indictment be vacated because the indictment fails to charge a crime? As to the first issue, we conclude that a police officer who observed the defendant may offer an opinion as to the defendant's level of intoxication arising from the consumption of alcohol, but may not offer an opinion as to whether the defendant's intoxication impaired his ability to operate a motor vehicle. As to the second issue, we conclude that an indictment may charge a crime without alleging all the essential elements of proof, and that due process does not require vacating the defendant's conviction arising from his guilty plea where the defendant has fair notice of the crime charged and fails to show that he did not understand that he was pleading guilty to that crime.

Background. At approximately 1:38 a.m. on March 8, 2009, Leicester police Officer Frank Bulman was parked on Main Street monitoring traffic when he saw a motor vehicle traveling in the westbound lane come within four inches of striking the curb. He followed the motor vehicle for approximately three-quarters of a mile and observed it cross over the white fog line on the shoulder of the road and “drift back” and cross the double yellow line at the center of the road. Officer Bulman activated the blue lights on his cruiser, but the driver did not apply the brakes until fifteen to twenty seconds later and traveled another fifteen to twenty seconds before pulling over to the side of the road. Because the vehicle's reverse lights remained on, Officer Bulman used his cruiser's public address system to instruct the driver to put the truck “in park.” The reverse lights remained on, so Officer Bulman left his cruiser and approached the defendant, who was alone in the motor vehicle, again instructing him to put the truck “into park.” The defendant responded that it was not his vehicle.

When Officer Bulman asked the defendant for his license and registration, the defendant had difficulty retrieving his identification from his wallet. When he handed over his identification, Officer Bulman smelled the odor of alcohol on the defendant's breath and saw that the defendant's eyes were bloodshot. In response to the officer's question, the defendant said that he had consumed four beers over four hours, approximately two hours earlier.

Officer Bulman asked the defendant to get out of the vehicle to perform some field sobriety tests. When he stepped out of the vehicle, the defendant tripped over his own feet and “almost stumbled.” Officer Bulman first administered “the walk and turn test,” asking the defendant to take nine steps “touching heel to toe” along an imaginary straight line counting each step out loud and then pivot and proceed back, again walking heel to toe. The defendant “walked at a complete forty-five degree angle, almost like a severe wind was blowing him to the side.” The officer also asked the defendant to perform a “one-leg stand” test, instructing him to lift one leg approximately six inches off the ground while counting from one to thirty. During the course of this test, the defendant put his foot down three separate times, and raised his arms to maintain balance. After the conclusion of the second test, approximately ten minutes after he had stopped the defendant's vehicle, Officer Bulman arrested the defendant. Officer Ronald Tarentino, who arrived at the scene after the defendant had left the vehicle and who witnessed the field sobriety tests, found a half-empty bottle of brandy on the floor of the front passenger side of the defendant's

[998 N.E.2d 326]

vehicle in the course of an inventory search.

The defendant was charged in six indictments, but tried before a jury on only the fifth and sixth indictments: operating a motor vehicle while under the influence of alcohol, in violation of G.L. c. 90, § 24(1) ( a )(1), 1 and negligently operating a motor vehicle so as to endanger, in violation of G.L. c. 90, § 24(2) ( a ). After the jury's guilty verdicts, the defendant pleaded guilty to the first indictment (the indictment the defendant contends on appeal was fatally flawed), the second indictment (operating a motor vehicle with a license suspended for operating while under the influence of alcohol), and the fourth indictment (operating a motor vehicle with a suspended license after having previously been convicted of this offense), all in violation of G.L. c. 90, 23.2,3

The defendant moved to vacate his conviction on the first indictment. He claimed that the indictment, which alleged operating a motor vehicle while under the influence of alcohol with a suspended license, did not allege a crime because the operation of a motor vehicle while under the influence of alcohol with a suspended license is a crime under G.L. c. 90, § 23, only where the license was suspended for operating while under the influence, and the indictment did not allege the basis for the license suspension. The judge denied the motion.4 We granted the defendant's application for direct appellate review of his convictions and of the judge's denial of his motion to vacate his conviction on the first indictment.

Discussion. 1. Opinion testimony regarding sobriety. Before trial, the defendant moved in limine to exclude any opinion by any Leicester police officer as to whether the defendant “was either intoxicated, impaired, or otherwise under the influence of alcohol,” claiming that this was an ultimate issue for the jury to decide and that allowing such an opinion in evidence would “usurp the function of the jury.” The judge denied the motion, stating that the case law from “time immemorial” has been that “a lay witness can give an opinion as to an individual's sobriety.” The judge assured counsel that she would include

[998 N.E.2d 327]

in her charge to the jury an instruction that the jury must determine whether the defendant was under the influence of alcohol and that they may accept or reject any witness's opinion regarding that issue.

At trial, the prosecutor elicited the following testimony from Officer Bulman:

The prosecutor: “And at that point [after the field sobriety tests] had you formed any opinion as to his sobriety, officer, based on your observations?”

The witness: “Yes, I did.”

The prosecutor: “And what was that opinion?”

The witness: “I believed that his ability to drive was diminished.”

The prosecutor: “Did you have any opinion as to what may have caused that diminished capacity?”

The witness: “I believe it was alcohol consumption.”

In addition, the prosecutor asked Officer Tarentino, “Did you at any point in time have any opinion as to Mr. Canty's sobriety, officer, based on what you observed?” Officer Tarentino replied, “Based on what I observed, yeah, in my opinion he was probably impaired.” The defendant did not object at trial to any of these questions, but we consider the claim of error preserved where the judge, in deciding the motion in limine, noted that the defendant's objection was preserved. See Commonwealth v. Kee, 449 Mass. 550, 553 n. 5, 870 N.E.2d 57 (2007).

The defendant's claim of error requires us to harmonize the tension between two well-established evidentiary rules in cases charging the crime of operating a motor vehicle while under the influence of alcohol. On the one hand, as the judge correctly noted, we have long recognized that opinion testimony of lay witnesses as to whether a person was intoxicated from the consumption of alcohol is admissible at trial. Edwards v. Worcester, 172 Mass. 104, 105, 51 N.E. 447 (1898). “While it might not be easy accurately to describe each and every minute detail indicative of intoxication ... the principal objective symptoms are so well known that witnesses have always been permitted to express their opinion as to the inebriety of a person.” Holton v. Boston Elevated Ry. Co., 303 Mass. 242, 246, 21 N.E.2d 251 (1939), and cases cited. See M.S. Brodin & M. Avery, Massachusetts Evidence § 7.2.2, at 399 (8th ed. 2007) (“Whether a person was drunk or intoxicated is also within the category of permissible summary description”); W.G. Young, J.R. Pollets, & C. Poreda, Evidence § 701.6, at 467 (2d ed. 1998) (“Since the princip[al] objective symptoms of intoxication are so well known, and a conclusion which people in general are capable of drawing, witnesses are permitted to express their opinions as to the sobriety of a person”). We also have recognized that police officers in criminal cases are permitted, as lay witnesses, to offer their opinion of an individual's sobriety. Commonwealth v. Jones, 464 Mass. 16, 17 n. 1, 979 N.E.2d 1088 (2012) (police officer in prosecution for operating motor vehicle while under influence of alcohol may testify to defendant's “apparent intoxication”). See Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 321, 640 N.E.2d 481 (1994), citing Commonwealth v. Atencio, 12 Mass.App.Ct. 747, 750–751, 429 N.E.2d 37 (1981).

On the other hand, as the defendant correctly notes, we have long recognized that “[n]o witness, including a police witness, may testify as to...

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