Commonwealth v. Montville

• Decision Date: 05 December 2016
• Docket Number: No. 15–P–1579.,15–P–1579.
• Citation: 65 N.E.3d 31 (Table),90 Mass.App.Ct. 1118
• Parties: COMMONWEALTH v. David W. MONTVILLE.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 1118
65 N.E.3d 31 (Table)

COMMONWEALTH
v.
David W. MONTVILLE.

No. 15–P–1579.

Appeals Court of Massachusetts.

December 5, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial, the defendant was found guilty of operating under the influence of intoxicating liquor (OUI), negligent operation of a motor vehicle, and leaving the scene of an accident resulting in property damage. On the subsequent offense portion of the OUI conviction, the judge also found the defendant guilty of operating under the influence as a fourth offense. The defendant contends that (1) the judge erred in granting the Commonwealth's motion to exclude Officer Jose Martinez's testimony, (2) the evidence was insufficient to support OUI, subsequent offense, and (3) the lay opinion testimony was impermissibly presented as expert opinion, resulting in a substantial risk of a miscarriage of justice.

Discussion. The defendant maintains that the trial judge erred in granting the Commonwealth's motion in limine to exclude Probation Officer Jose Martinez's testimony. The defendant contends that the testimony tended to prove that the defendant seemed impaired on the night in question due to his diabetic condition, not inebriation, and that the exclusion of the evidence deprived him of the right to present his defense.²

While the Declaration of Rights of the Massachusetts Constitution protects a defendant's right to present his defense, including the right to call favorable witnesses, this right yields to " ‘legitimate demands of the adversarial system’ as determined within the discretion of the trial judge." Commonwealth v. McCollum, 79 Mass.App.Ct. 239, 257 (2011), quoting from Commonwealth v. Durning, 406 Mass. 485, 495 (1990). "Evidentiary rules of exclusion do not abridge an accused's right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ " Ibid., quoting from Commonwealth v. McAfee, 430 Mass. 483, 491 n. 3 (199).

"A trial judge may, in his discretion, admit evidence of acts committed subsequent to a charged offense.... To be sufficiently probative, however, the evidence of postcrime conduct ‘must be connected with the facts of the case or not be too remote in time.’ " Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001), quoting from Commonwealth v. Barrett, 418 Mass. 478, 494 (1994). Unlike the usual case, in which "evidence of acts committed after the charged offense [is admitted] to...