Commonwealth v. Shepherd

• Decision Date: 10 May 2022
• Docket Number: 21-P-43
• Parties: COMMONWEALTH v. SCOTT F. SHEPHERD.
• Court: Appeals Court of Massachusetts

COMMONWEALTH v. SCOTT F. SHEPHERD.

No. 21-P-43

Appeals Court of Massachusetts

May 10, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of drugs (OUI Drugs), and negligent operation of a motor vehicle. On appeal, he claims the judge abused his discretion by permitting a State trooper to explain her training and experience in impaired driving cases, and that the evidence was insufficient to support either of his convictions. We affirm.

1. The trooper's training and experience.

The defendant claims the judge abused his discretion in permitting Trooper Ali Rei to testify to her training and experience with regard to OUI Drugs cases, and specifically to the fact that she attended the Advanced Roadside Impairment Driving Enforcement (ARIDE) program. The defendant claims this testimony was prejudicial error because it may have misled or confused the jury into believing that the trooper was supporting the validity of the assessments administered to the defendant at the State Police barracks. We disagree.

We review a judge's evidentiary decisions for an abuse of discretion. See Commonwealth v. Andre, 484 Mass. 403, 414 (2020). That is, we must determine whether the judge made "a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) .

In her testimony, Trooper Rei described various assessments she administered, and her observations of the defendant while he performed those assessments. She also described her training and experience, including a sixteen-hour training which focused on OUI Drugs and was known as ARIDE, during which she learned two additional assessments that were not taught in her regular police academy classes. Over objection, Rei described that training. She also acknowledged that she had no medical training, and was not permitted to answer questions pertaining to specific types of drugs or their side effects.

Contrary to the defendant's concerns, Rei's testimony merely provided background information about herself and the administration of the assessments. Her testimony was not outside the parameters of Commonwealth v. Gerhardt, 477 Mass. 775, 783-784 (2017), as she did not testify that the assessments establish that an individual was under the influence of a particular drug, or that the defendant "passed" or "failed" the assessments. Moreover, Rei neither gave an opinion on the defendant's impairment, nor claimed to be an expert. See Commonwealth v. Smith, 95 Mass.App.Ct. 437, 444 (2019). Finally, there is no reason to believe the jury was misled or confused about the proper purpose of the assessments where the judge instructed the jury, in line with Gerhardt, that the "roadside assessments are not scientific tests of impairment by marijuana or [c]lonazepam," and that it was for the jury to determine how much weight, if any, to give those assessments. The judge's decision fell comfortably inside the range of reasonable alternatives, and there was no abuse of discretion. See L.L., 477 Mass. at 185 n.27.

2. Sufficiency of the evidence.

The defendant also claims that the evidence was insufficient to demonstrate that he operated a motor vehicle while under the influence of marijuana or clonazepam, the latter being a "depressant" as that term is used in G. L. c. 90, § 24 (1) (a.) (1) . Specifically, he claims that the evidence was insufficient to prove that his consumption of those drugs diminished his ability to operate a vehicle safely. We disagree.

"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' .... Rather, the relevant 'question is 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. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979)." Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009) .

When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass. at 677-678. In the circumstances of this case, to establish the defendant's guilt of OUI Drugs in violation of G. L. c. 90, § 24 (1) (a.) (1), the Commonwealth was required to prove that the defendant: (1) operated a motor vehicle, (2) on a public way, and (3) while under the influence of marijuana, narcotic drugs, depressants, or stimulant substances as defined in G. L. c. 94C, § 1. See Smith, 85 Mass.App.Ct. at 440; Commonwealth v. Bouley, 93 Mass.App.Ct. 709, 712 (2018). The defendant only challenges the evidence supporting the third element.

Here, the defendant admitted to both troopers that he had smoked marijuana, and admitted to Trooper Rei that he took clonazepam. The judge properly took judicial notice that the drug qualifies as a depressant under G. L. c. 94C, § 1. See G. L. c. 94C, § 31 (identifying clonazepam as class C substance "having a depressant effect on the central nervous system"). In addition, the defendant's eyes were bloodshot, his speech was slurred, and he had trouble maintaining his balance at the scene of the crash, which the defendant admitted he caused. During the roadside assessments, the defendant's trouble with his balance persisted, and he was unable to follow instructions. At the barracks, in addition to his watery and droopy eyes, the defendant's poor performance on the assessments continued. In fact, during one assessment, he completely lost his balance and had to grab a nearby desk to steady himself. See Gerhardt, 477 Mass. at 776 (assessments "are relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle").

The above evidence should also be combined with the fact that the defendant careened off the highway during clear weather struck a mile marker, and came to stop in the snow beyond the breakdown lane. See Commonwealth v. Johnson, 59 Mass.App.Ct. 164, 165-166 ...