Commonwealth v. Gallagher
| Decision Date | 21 April 2017 |
| Docket Number | No. 16-P-192,16-P-192 |
| Citation | 75 N.E.3d 638 |
| Parties | COMMONWEALTH v. Judith A. GALLAGHER. |
| Court | Appeals Court of Massachusetts |
Colin Caffrey , Pittsfield, for the defendant.
Kelsey A. Baran , Assistant District Attorney, for the Commonwealth.
Present: Green, Meade, & Agnes, JJ.
After a jury trial, the defendant was convicted of operating while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24(1)(a )(1). On appeal, she claims that the judge improperly admitted a State trooper's testimony concerning her impairment to operate a motor vehicle, and that the evidence was insufficient to support her conviction. We affirm.
1. Background . a. The incident . In the early morning hours of June 29, 2014, the Massachusetts State police were conducting an
OUI checkpoint on Route 33 in Chicopee.1 State Trooper John Haidousis, who had ten years of experience working in law enforcement,2 was assigned to work the secondary location, i.e., the parking lot of Monroe Muffler, a business located directly off of Route 33.3 The business parking lot was brightly lit, the ground was flat and paved, and individual parking spots were marked visibly by painted lines on the pavement.
At about 12:15 A.M. , the defendant, as directed by another trooper, drove her vehicle into the secondary location parking lot without incident. Trooper Haidousis directed her to park in one of the marked parking spots. The defendant failed to do as instructed, instead parking her vehicle "crooked[ly]" or "diagonally across two parking spots." Upon request, the defendant produced a driver's license and perhaps a registration; Trooper Haidousis determined that she was seventy-one years old.
As Trooper Haidousis spoke to the defendant he detected an odor of alcoholic beverage coming from her mouth, and observed her eyes to be "bloodshot and glassy." Trooper Haidousis asked the defendant whether she had consumed any alcohol, to which she replied that she had consumed three beers, and had started drinking around midnight. Her speech was "a bit slurred." Based on these observations, Trooper Haidousis asked the defendant to perform field sobriety tests, to which she consented.
When the defendant got out of her car, the trooper again detected the smell of alcohol coming from her person. She was wearing flip-flop-style shoes. He instructed her to stand in one spot, and as he explained the field sobriety tests, he observed her "swaying a bit back and forth." When asked if she had any injuries that would prevent her from performing the tests, the defendant replied that she had arthritis
in her hips, but she nonetheless agreed to perform the tests.
Trooper Haidousis first had the defendant perform the "nine-step walk and turn" test. To perform this test, the defendant was instructed to stand up straight, and to keep her arms by her sides.
She was told to take nine forward steps on a painted straight line in the parking lot, heel to toe, while counting out loud to nine. At the ninth step, the defendant was to turn around and walk nine steps back in the same fashion, i.e., heel to toe, while she counted out loud to nine, keeping her hands by her sides the entire time. The defendant listened to the instructions, and began the test without incident.
During the first part of the test, the defendant did not take all nine steps, instead taking only seven, and she stepped off of the painted line. She also failed to touch her heel to her toe, as instructed, on each step. On the return trip, she only took six of the nine required steps, again stepping off of the line, and again missing the heel to toe instruction. Trooper Haidousis explained in his testimony that failure to take all nine steps is an "indicator [ ] that we look for."
The defendant was then instructed to complete the "one-leg stand" test, which is another standardized field sobriety test to detect impairment due to alcohol consumption. She was instructed to stand with her arms by her sides. Then she was to raise one leg of her choice approximately six inches off of the ground, while she kept her arms by her sides. Once her leg was elevated, the defendant was required to count out loud until she reached thirty. Trooper Haidousis used his wristwatch to track the accuracy of the defendant's thirty-second count. The defendant listened to the instructions and began the test without incident. However, the defendant was unable to complete the test as instructed as she put her foot down after only ten or eleven seconds. She was also "swaying from side to side, not standing up straight," and failed to count out loud, as she had been instructed.4
The final field sobriety test the trooper had the defendant perform was the recitation of the alphabet. In preparation for this test, the trooper asked the defendant what was the highest level of education she had attained, and if she knew the alphabet. The defendant properly recited the alphabet.
After he finished administering the field sobriety tests, Trooper Haidousis "formed the opinion that [the defendant] was under the influence of alcohol." When asked if he made a determination as to the level of the defendant's impairment, the trooper replied, over objection, that "her ability—she was impaired to operate a motor vehicle." Trooper Haidousis based this determination on his detection of an odor consistent with alcohol emanating from the defendant, her glassy and bloodshot eyes, her slurred speech, her admission to consuming alcohol, and her performance on the field sobriety tests, as well as the manner in which she parked her car in the secondary location. Based on these factors, Trooper Haidousis arrested the defendant for OUI. Subsequent to Trooper Haidousis's testimony, the parties stipulated to the elements of operation and public way.b. Jury instructions . As part of her final charge to the jury, the judge instructed the jury that:
She also instructed that they were "not to be swayed by prejudice or by sympathy, by personal likes or dislikes, toward either side."
After she instructed the jury on the elements of the crime, the judge reminded the jury of the stipulation and its effect. She also instructed on what it means to be "under the influence of alcohol," and she gave a specific instruction regarding Trooper Haidousis's opinion relative to the defendant's level of impairment:
Both the Commonwealth and the defendant were satisfied with the judge's charge to the jury.
2. Discussion . a. Opinion testimony . The defendant claims that the judge erred by admitting Trooper Haidousis's testimony that she was "impaired to operate a motor vehicle." We agree, but we conclude the error was not prejudicial.
Because the claimed error was preserved, we must determine whether the admission in evidence of the improper opinion constituted prejudicial error. "An error is not prejudicial if it ‘did not influence the jury, or had but very slight effect’; however, if we cannot find ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,’ then it is prejudicial." Commonwealth v. Cruz , 445 Mass. 589, 591, 839 N.E.2d 324 (2005), quoting from Commonwealth v. Flebotte , 417 Mass. 348, 353, 630 N.E.2d 265 (1994). See Kotteakos v. United States , 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
"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 [her] apparent intoxication." Commonwealth v. Canty , 466 Mass. 535, 541, 998 N.E.2d 322 (2013), quoting from Commonwealth v. Jones , 464 Mass. 16, 17 n.1, 979 N.E.2d 1088 (2012). A lay opinion, as opposed to an expert opinion, is admissible "only where it is ‘(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.’ " Commonwealth v. Canty , supra , quoting from Mass. G. Evid. § 701 (2013).
Here, Trooper Haidousis testified that after observing the defendant and administering the field sobriety tests, he "formed the opinion that [the defendant] was under the influence of alcohol." When asked if he made a determination as to the defendant's "level of impairment," Trooper Haidousis stated that he determined that the defendant "was impaired to operate a motor vehicle." The first portion of this testimony, i.e., the opinion that the defendant was under the influence of alcohol, was proper. See Commonwealth v. Saulnier , 84 Mass.App.Ct. 603, 605, 999 N.E.2d 148 (2013). However, the second portion, where the trooper opined that the defendant's level of intoxication rendered her impaired to operate her vehicle, is the type of evidence that was prohibited in Canty , supra at 544, 998 N.E.2d 322. This type of testimony comes close to an opinion on the ultimate issue of guilt or innocence,...
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