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17-P-1626                                              Appeals Court

                 COMMONWEALTH   vs.   TYEMIKE SMITH.


                           No. 17-P-1626.

            Worcester.     March 8, 2019. - June 5, 2019.

              Present:   Hanlon, Agnes, & Sullivan, JJ.


Marijuana. Motor Vehicle, Operating under the influence.
     Evidence, Roadside assessment. Practice, Criminal,
     Retroactivity of judicial holding. Retroactivity of
     Judicial Holding.



     Complaint received and sworn to in the Worcester Division
of the District Court Department on September 28, 2015.

    The case was heard by Paul F. Loconto, J.


     Darla J. Mondou for the defendant.
     Michelle R. King, Assistant District Attorney, for the
Commonwealth.


    SULLIVAN, J.    The defendant, Tyemike Smith, appeals from

his conviction of operating a motor vehicle under the influence

(OUI) of marijuana in violation of G. L. c. 90, § 24 (1) (a)

(1), following a jury-waived trial in the District Court.

Relying on Commonwealth v. Gerhardt, 477 Mass. 775, 776-777
                                                                    2


(2017), the defendant claims he is entitled to a new trial

because of errors in the admission of evidence regarding

impairment due to marijuana consumption.    The trial judge's

treatment of the evidence fully anticipated the holding in

Gerhardt.    We therefore affirm the conviction.

     Background.   On September 27, 2015, at approximately 12:25

A.M., a gray Volvo driven by the defendant stopped at a sobriety

checkpoint operated by State troopers on Chandler Street in

front of Foley Stadium in Worcester.    The defendant lowered his

car window, releasing a strong odor of burning or freshly burnt

marijuana.   His eyes were red, and Trooper Donald Pillsbury, the

initial screening officer, asked him if he had been smoking

marijuana.    The defendant replied that he had recently smoked

marijuana.   The defendant was diverted to a secondary screening

area in the stadium parking lot.    Based on his statements to two

troopers and performance on two roadside assessments, he was

arrested for OUI of marijuana.1




     1 Following Gerhardt, 477 Mass. at 785, officers must
testify to the administration of "roadside assessments" in cases
involving OUI (marijuana), rather than "field sobriety tests,"
applicable in cases involving OUI (alcohol), so as to avoid
suggesting to the trier of fact that the assessments "function
as scientific validation of a defendant's sobriety or
intoxication" from marijuana consumption. At trial the term
"field sobriety test" was the only term in use. We use the term
"roadside assessment" in this opinion.
                                                                    3


     Motion in limine.   At the outset of the jury-waived trial,

the defendant moved in limine pursuant to Gerhardt, 477 Mass. at

777, then pending before the Supreme Judicial Court, to preclude

witnesses from testifying to the ultimate conclusion whether the

defendant was under the influence of marijuana while operating

the motor vehicle.2   The judge ruled that the witnesses could

testify to "impairment generally" but not to the ultimate

conclusion whether the defendant's ability to operate a motor

vehicle safely was affected by his consumption of marijuana.

The defendant argued that there was no established basis for

determining impairment due to marijuana consumption from which a

witness could render an opinion.   The judge withheld ruling on

whether he would permit the troopers to offer an opinion until

he heard the evidence.

     Trial.   At trial, the trooper who conducted the roadside

assessments offered the following testimony which, as is

discussed in more detail, infra, was partially credited by the

judge.

     After the defendant was sent to the secondary screening

area, Trooper Christopher Fantasia approached the gray Volvo. He

smelled marijuana.    He noticed the defendant's red, glassy eyes


     2 The defendant filed a detailed motion outlining the
various issues before the Supreme Judicial Court in Gerhardt,
including the full list of questions reported to the Supreme
Judicial Court by the District Court judge.
                                                                     4


and asked the defendant if he had smoked marijuana.    The

defendant replied that he had recently smoked marijuana.

Trooper Fantasia asked if he had any marijuana in the car with

him, and the defendant pointed to a bag of marijuana in the door

handle.   The trooper issued an exit order and seized the

marijuana.   The defendant appeared lethargic and laughed as he

got out of the car.    He agreed to perform the roadside

assessments and continued laughing as he attempted the one-

legged-stand (OLS).    While attempting to balance on one leg for

thirty seconds, the defendant swayed, held out his arms to

steady himself, and was unable to remain on one leg for the full

thirty-second duration of the assessment.    The defendant laughed

and stated that he was "too high for this type of situation."

    The prosecutor asked the trooper, "[D]id [the defendant]

complete this test to your satisfaction?"    The defendant

objected.    The judge replied that the trooper permissibly

described what he asked the defendant to do and his observation

of what the defendant did do.    The judge overruled the

objection, stating that the trooper's response should not be

construed as commentary on whether the defendant passed or

failed the "field sobriety test," but rather whether the

defendant in fact did what the trooper asked him to do, which

the defendant did not.
                                                                      5


    Trooper Fantasia then testified to the defendant's

performance on the nine-step walk-and-turn (WAT).     The defendant

started before he was told to begin, did not begin counting

until about the fifth step, and swayed while he walked.

    The prosecutor next asked Trooper Fantasia, "[I]n your

opinion, did [the defendant] complete this nine-step walk-and-

turn to your satisfaction?"     The defendant again objected.   The

trial judge noted the objection, and the trooper answered, "No,

sir."   The prosecutor then asked the trooper, "So in the

totality of the circumstances, all the evidence you saw that

night, including these tests and his statements and what you saw

and smelled, did you form an opinion as to whether this

defendant was impaired?"   The defendant objected, and the judge

allowed the defendant to conduct a voir dire on the

admissibility of the trooper's opinion regarding the defendant's

impairment.

    After the voir dire, the judge ruled that Trooper Fantasia

could not offer an opinion that the defendant was impaired by

the consumption of marijuana.    Nor could the trooper testify to

his opinion of the defendant's impairment generally.     The judge

limited the trooper's testimony to his observations.

    At the conclusion of the trial, the judge found the

defendant guilty based on the strong odor of burnt marijuana in

the car, the bag of marijuana seized from the car, the
                                                                    6


defendant's statements that he had recently smoked marijuana,

and his statement that he was "too high" to follow the trooper's

instructions about the OLS.   The judge did not rely on the

trooper's testimony regarding the OLS and WAT.

    Discussion.    In a prosecution for OUI (marijuana) under

G. L. c. 90, § 24 (1) (a) (1), the Commonwealth is required to

prove beyond a reasonable doubt that the defendant operated the

car under the influence of marijuana, an influence that

"resulted in the 'impairment, to any degree, of an individual's

ability to safely perform the activity in question.'"

Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018),

quoting Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479

(2016).   See Commonwealth v. Davis, 481 Mass. 210, 215-216

(2019).   The defendant contends that it was error to admit

Trooper Fantasia's testimony that the "field sobriety tests"

were not completed "to his satisfaction" because that testimony

constituted improper opinion evidence.   See Gerhardt, 477 Mass.

at 777.

    In Gerhardt, 477 Mass. at 776, the Supreme Judicial Court

held that where a driver is charged with OUI (marijuana), the

defendant's performance on roadside assessments is admissible at

trial "to the extent that [the assessments] are relevant to

establish a driver's balance, coordination, mental acuity, and

other skills required to safely operate a motor vehicle."     "In
                                                                   7


particular, observations of the performance of the OLS and the

WAT may be admissible as evidence of a defendant's balance,

coordination, ability to retain and follow directions, and

ability to perform tasks requiring divided attention, and the

presence or absence of other skills necessary for the safe

operation of a motor vehicle."   Id. at 783.   Law enforcement

officers may not testify to whether the defendant's performance

would be deemed a "pass" or "fail."    Id. at 776.   Nor may

officers testify to "whether the performance indicated

impairment" or "offer an opinion as to whether a driver was

under the influence of marijuana."    Id. at 776-777.   With

respect to the ultimate issue of impairment, triers of fact "may

use their common sense in evaluating whether the Commonwealth

introduced sufficient evidence to satisfy its burden of proof."

Id. at 787.   However, roadside assessments alone are not enough

to support a conviction.   Id. at 785, 789 (Appendix).3



     3 The "Model Jury Instruction Regarding Roadside Assessments
for Use in Prosecutions for Operating While Under the Influence
of Marijuana" provides:

     "You heard testimony in this case that the defendant, at
     the request of a police officer, performed or attempted to
     perform various roadside assessments, such as [Here outline
     the nature of the evidence, e.g., walking a straight line,
     balancing on one foot]. These roadside assessments are not
     scientific tests of impairment by marijuana use. A person
     may have difficulty performing these tasks for many reasons
     unrelated to the consumption of marijuana.
                                                                      8


     We are presented with the threshold question whether the

rule announced in Gerhardt, which was decided while this case

was pending on appeal, applies retroactively.4    "Decisional law

usually is retroactive" unless it creates a "new rule."

Commonwealth v. Breese, 389 Mass. 540, 541 (1983).    "When a

decision announces a new rule, however, the issue arises whether

it will be applied only prospectively."   Id.    Arguably, the rule

announced in Gerhardt constitutes the application of familiar




     "It is for you to decide if the defendant's
     performance on these roadside assessments indicates
     that his [her] ability to operate a motor vehicle
     safely was impaired. You may consider this evidence
     solely as it relates to the defendant's balance,
     coordination, mental clarity, ability to retain and
     follow directions, ability to perform tasks requiring
     divided attention, and other skills you may find are
     relevant to the safe operation of a motor vehicle.

     "It is for you to determine how much, if any, weight
     to give the roadside assessments. In making your
     determination, you may consider what the officer asked
     the defendant to do, the circumstances under which
     they were given and performed, and all of the other
     evidence in this case.

     "Finally, evidence of how a defendant performed in
     roadside assessments, standing alone, is never enough
     to convict a defendant of operating while under the
     influence of marijuana."

Gerhardt, 477 Mass. at 789 (Appendix).

     4 This case arises on direct appeal, and we therefore do not
address the law applicable to new rules of criminal law on
collateral review. See generally Teague v. Lane, 489 U.S. 288,
307 (1989); Commonwealth v. Sylvain, 466 Mass. 422, 433 (2013),
S.C., 473 Mass. 832 (2016).
                                                                     9


and settled law governing expert opinion, see Commonwealth v.

Sands, 424 Mass. 184, 185 (1997) ("the touchstone of

admissibility is reliability"), and is therefore an "old" rule

to be applied retroactively.    Id. at 188-189 (granting new trial

where scientific basis of horizontal gaze nystagmus test not

established at trial).   On the other hand, Gerhardt, 477 Mass.

at 776, 789 (Appendix), announced new terminology, and provided

a new model jury instruction.

     Even if we assume that Gerhardt announced a new common-law

rule, the court had the discretion to apply a new common-law

rule retroactively, either to the pending case or to other cases

pending on direct review, or to apply the new rule prospectively

only.   "When announcing a new common-law rule, a new

interpretation of a State statute, or a new rule in the exercise

of our superintendence power, there is no constitutional

requirement that the new rule or new interpretation be applied

retroactively, and we are therefore free to determine whether it

should be applied only prospectively."    Commonwealth v.

Hernandez, 481 Mass. 582, 602 (2019), quoting Commonwealth v.

Dagley, 442 Mass. 713, 721 n.10 (2004), cert. denied, 544 U.S.

930 (2005).

     In Gerhardt, however, the court was silent on the issue of

retroactive or prospective application.    Our case law is lacking

in guidance as to what this court (or a trial judge hearing a
                                                                 10


motion for new trial while an appeal is stayed) is to do in

cases on direct appeal when the court that announced the rule

declined to say whether the rule is an old rule or a new rule,

and if it is new, whether it is to be retrospective or

prospective.

    There is broad language in many cases stating that changes

in decisional law are applicable to cases pending on direct

review where the issue was preserved at trial.     See, e.g.,

Commonwealth v. Johnston, 467 Mass. 674, 704 (2014), citing

Commonwealth v. Bray, 407 Mass. 296, 299 (1990) ("The

defendant's trial was completed before our decisions . . . were

released, but he is entitled to the benefit of changes in

decisional law that are announced after trial and pending his

direct review").     A closer review of these cases, however,

suggests that they may arise in the context of claimed

constitutional error, even though the rule is described more

generally.     See Commonwealth v. Waweru, 480 Mass. 173, 188

(2018); Commonwealth v. Muller, 477 Mass. 415, 431 (2017);

Commonwealth v. Broom, 474 Mass. 486, 492-493 (2016); Johnston,

supra at 704; Commonwealth v. Augustine, 467 Mass. 230, 232

(2014), S.C., 470 Mass. 837 (2015); Commonwealth v. Figueroa,

413 Mass. 193, 202 (1992), S.C., 422 Mass. 72 (1996).     See also

E.B. Cypher, Criminal Practice and Procedure § 1:21 (4th ed.
                                                                    11


2014) (distinguishing between new constitutional and new

nonconstitutional rules for purposes of retroactivity).

     There are relatively few reported cases involving the

retroactivity of common-law changes to the rules of evidence to

cases pending on direct review.5   Compare Commonwealth v.

Adjutant, 443 Mass. 649, 667 (2005) (new common-law rules of

evidence regarding self-defense applied to defendant but

otherwise prospectively), and Commonwealth v. Pring-Wilson, 448

Mass. 718, 736-737 (2007) (same, applied to subsequent

defendant), with Commonwealth v. King, 445 Mass. 217, 248

(2005), cert. denied, 546 U.S. 1216 (2006) (adopting first

complaint rule prospectively, as matter of superintendence).

See Commonwealth v. Dwyer, 448 Mass. 122, 147 (2006) (treating

new evidentiary rule as constitutionally informed rather than

constitutionally mandated, and applying it prospectively).     It

appears that the general practice prior to Adjutant, supra, had

been to apply new common-law evidentiary rules prospectively.

See Commonwealth v. Clemente, 452 Mass. 295, 305 (2008), cert.

denied, 555 U.S. 1181 (2009) (describing application of new rule




     5 When a case announces a new rule regarding the order and
presentation of evidence, the new rule is often adopted under
the Supreme Judicial Court's powers of superintendence, and
usually is applied prospectively. See Dagley, 442 Mass. at 720-
721 ("In prior cases announcing new rules or requirements in the
exercise of our superintendence power, we have declined to give
the new rule or requirement retroactive effect").
                                                                   12


announced in Adjutant to defendant in that case as "most unusual

step").6

     Recent case law suggests that flexibility and discretion

are involved, even in cases involving common-law rules where no

issue of constitutional dimension has been raised, when the

issue in question has been preserved.   In Hernandez, 481 Mass.

at 602, the court applied a new common-law rule governing the

finality of convictions of criminal defendants who die while an

appeal is pending to the defendant in that case, where the

Commonwealth had fully preserved the issue.   Id. ("[W]e see no

reason why the Commonwealth should not have the benefit of that

new rule in this case.   Otherwise, the new rule shall only apply

prospectively").   See Commonwealth v. Moore, 474 Mass. 541, 550–

551 (2016).7   However, neither Hernandez nor Moore involved the

admissibility or orderly presentation of evidence at trial.




     6 But see Commonwealth v. Pidge, 400 Mass. 350, 354 (1987)
(applying rule of evidence retroactively in case involving
murder in the first degree).

     7 The Gerhardt decision also introduced a procedural
anomaly. Gerhardt was heard on reported questions, 477 Mass. at
777, and the case here was tried with Gerhardt well in mind. In
this unique context, were we to borrow from those cases dealing
with the retroactive application of new rules of constitutional
dimension, see, e.g., Moore, 474 Mass. at 550-551, we would
further note that Gerhardt was decided while this case was on
direct appeal, and the issues were preserved at trial. See
Hernandez, 481 Mass. at 602; Broom, 474 Mass. at 492.
                                                                    13


     Even if we assume, without deciding, that the Supreme

Judicial Court's silence means that the rule in Gerhardt is

retroactive, there was no error here.    The judge's rulings were

prescient and strictly followed the rubric later outlined in

Gerhardt.   "There is no doubt that an officer may testify to his

or her observations of, for example, any erratic driving or

moving violations that led to the initial stop; the driver's

appearance and demeanor; the odor of fresh or burnt marijuana;

and the driver's behavior on getting out of the vehicle."

Gerhardt, 477 Mass. at 783.    The trial judge limited the

trooper's testimony to a description of what he asked the

defendant to do and his observation of what the defendant did.

This was permissible descriptive testimony, not impermissible

evaluative testimony.    It is unlikely that the phrase "to your

satisfaction" will be used after Gerhardt, since it arguably

imputes a level of expertise or authority either to the officer

or the roadside assessment that the court in Gerhardt counselled

against.    Nonetheless, the judge's contemporaneous explanation

regarding the use to which he put the testimony negates any

suggestion that the judge was improperly influenced by the

phrasing of the question.8




     8 The judge reasoned, "So if [the trooper] says to walk ten
paces and someone walks five, can he be asked the question, 'Did
he complete that task to your satisfaction?' Why can't he say,
                                                                   14


     At the end of the day, the judge placed no reliance on the

trooper's description of the defendant's performance of the

roadside assessments.     The judge credited the trooper's

testimony regarding the presence and odor of marijuana in the

car, the defendant's admission that he had recently smoked

marijuana, and the defendant's admission that he was "too high

for this type of situation."    The evidence the judge relied on

was properly admitted.9    Accordingly, there was no error.

                                     Judgment affirmed.




'No, he didn't, 'cause I asked him to do ten and he walked
five'?"

     9 The latter two statements were indisputably admissible as
statements of a party opponent. See Mass. G. Evid. § 801(d)(2)
note, at 286 (2018), and cases cited.
