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16-P-192                                              Appeals Court

               COMMONWEALTH   vs.   JUDITH A. GALLAGHER.


                              No. 16-P-192.

           Hampden.    February 7, 2017. - April 21, 2017.

                 Present:   Green, Meade, & Agnes, JJ.


Motor Vehicle, Operating under the influence. Intoxication.
     Evidence, Intoxication, Opinion. Practice, Criminal,
     Witness. Witness, Police officer.


     Complaint received and sworn to in the Chicopee Division of
the District Court Department on June 30, 2014.

    The case was tried before Bethzaida Sanabria-Vega, J.


     Colin Caffrey for the defendant.
     Kelsey A. Baran, Assistant District Attorney, for the
Commonwealth.


    MEADE, J.     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,
                                                                       2


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

     1
       Route 33 is a main thoroughfare in Chicopee that is
located in close proximity to the Massachusetts Turnpike.
     2
       Trooper Haidousis was trained in investigating OUI cases
at the police academy.
     3
       An OUI checkpoint consists of two locations. The first is
a primary stop, where troopers will initially stop motor
vehicles and converse with the drivers. The second location is
where a driver who is suspected of being under the influence of
alcohol will be directed and questioned further.
                                                                    3


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
                                                                     4


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
                                                                    5


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


     4
       Trooper Haidousis was aware that the DWI Detection and
Standardized Field Sobriety Testing manual suggests that people
older than the age of sixty-five or those with back, leg, or
inner ear problems may have trouble performing these two tests.
                                                                     6


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:

    "Your function as the jury is to determine the facts of
    this case. You are the sole and exclusive judges of the
    facts. You alone determine what evidence to accept, how
    important any evidence is that you do accept, and what
    conclusions to draw from all the evidence. You must apply
    the law as I give it to you, to the facts as you determine
    them to be, in order to decide whether the Commonwealth has
    proved [the defendant] guilty of this charge."

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:

    "You have heard testimony of an opinion about [the
    defendant's] sobriety. Ultimately, it is for you as the
    jury to determine whether she was under the influence of
    alcohol, according to the definition I have provided. You
    may consider any opinion you have heard and accept it or
    reject it. In the end, you and you alone must decide
    whether she was under the influence of intoxicating
    liquor."

Both the Commonwealth and the defendant were satisfied with the

judge's charge to the jury.
                                                                     7


    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 (2005), quoting from Commonwealth v. Flebotte,

417 Mass. 348, 353 (1994).     See Kotteakos v. United States, 328

U.S. 750, 764 (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 (2013), quoting from Commonwealth v. Jones,

464 Mass. 16, 17 n.1 (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
                                                                      8


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 (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.     This type of testimony

comes close to an opinion on the ultimate issue of guilt or

innocence, and presents a danger of unfair prejudice.     See id.

at 543-544.     At the same time, in view of the whole case, the

prejudice flowing from this opinion would be relatively modest

given what must have been obvious to the jury, i.e., that the

arresting trooper believed the defendant's ability to operate

her car was impaired by alcohol consumption.
                                                                    9


    Here, the judge gave a specific instruction regarding

Trooper Haidousis's opinion relative to the defendant's level of

impairment.   The instruction told the jury that it was for them,

and them alone, to determine whether the defendant was under the

influence of alcohol, and that the jury were free to accept or

reject any opinion on the issue.   The instruction was nearly

verbatim of that given in Canty, where the Supreme Judicial

Court found no prejudicial error in the opinion testimony of the

officer.   Id. at 545 ("Any such risk [of prejudice] was

diminished by the judge's explicit final instruction to the jury

that they ultimately must determine whether the defendant was

under the influence of alcohol, and that they may consider any

opinion they heard about the defendant's sobriety 'and accept it

or reject it'").   The inclusion of this instruction greatly

diminished the risk of any prejudicial effect the improper

opinion testimony may have had on the jury.   See ibid.5

    Furthermore, there was compelling, if not overwhelming,

evidence that supported the jury's conclusion -- apart from the


    5
       The dissent takes issue with the propriety of the Supreme
Judicial Court's conclusion in Canty that this instruction
ameliorates the risk of prejudice. See post at     . The
defendant made this claim neither at trial nor in his appellate
brief, and the issue is not before us. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975) (claims not raised in
briefs are waived). In any event, even if we were inclined, we
lack the authority to "alter, overrule or decline to follow the
holding of cases the Supreme Judicial Court has decided."
Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
                                                                    10


improper opinion testimony -- that the defendant's intoxication

impaired her ability to operate a motor vehicle.     See ibid.     Cf.

Commonwealth v. Saulnier, supra at 607 (no substantial risk of

miscarriage of justice where improper opinion testimony about

defendant's impaired ability to operate motor vehicle outweighed

by overwhelming evidence of diminished capacity).     From the very

beginning of the encounter with the troopers, the defendant

exhibited signs of alcohol impairment.   When she pulled into the

secondary location, she failed to follow instructions to park in

a single designated parking space, and instead parked her

vehicle in a crooked manner across two spaces.     Her eyes were

glassy and bloodshot, and her speech was "a bit slurred."

Trooper Haidousis detected an odor of alcohol coming from the

defendant when she was in her vehicle and when she exited the

vehicle.   Most notably, the defendant admitted to consuming

three beers at midnight, which was approximately fifteen minutes

before she arrived at the secondary location.6

     In addition, while the defendant stood outside her car and

received instructions on how to perform the field sobriety

tests, she swayed back and forth.   During the nine-step walk and

turn test, she failed to touch her heel to her toe, failed to

     6
       Although it is unlikely the defendant actually could have
consumed three beers in fifteen minutes, she nonetheless
admitted to drinking alcohol, and the implausibility of her
expressed timeline lends further support to the jury's
conclusion that she was impaired.
                                                                 11


remain on the painted line as instructed, and completed only

thirteen of the eighteen over-all required steps.   When the

defendant attempted the one-leg stand test, she failed to

elevate her foot as instructed for the designated amount of

time, she was unable to stand up straight, she failed to count

aloud, and she swayed from side to side.7

     Although the defendant was able to recite the alphabet, the

remainder of her performance on the field sobriety tests as well

as her behavior ancillary to the tests and her physical symptoms

provided overwhelming evidence that her ability to operate was

impaired by her alcohol consumption.   When this evidence is

coupled with the judge's instruction on opinion testimony, as

well as the remainder of her instructions, and viewed against

the backdrop of the entire trial, which includes the improper

admission of the trooper's opinion, we are fairly assured that

the jury were not substantially swayed by the error.   See

Commonwealth v. Flebotte, 417 Mass. at 353.   To the extent there

was any resulting effect on the jury occasioned by the trooper's




     7
       The dissent's suggestion, post at    , that jurors should
be instructed that testimony relative to field sobriety tests is
not scientific is not a claim raised by the defendant, and it is
not before us. See note 5, supra.
                                                                  12


opinion, it was slight.    See Kotteakos v. United States, 328

U.S. at 765.8

     b.   Sufficiency of the evidence.   The defendant also claims

that there was insufficient evidence to support her conviction.

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).



     8
       The dissent posits, post at    , that unlike Canty, the
error was prejudicial because there were different or additional
indicia of impairment in Canty not present here. For example,
the dissent identifies the absence of erratic driving in this
case that was present in Canty. See post at     . However,
evidence of erratic driving is not a necessary component of the
Commonwealth's burden of proof. Commonwealth v. Connolly, 394
Mass. 169, 173 (1985). In any event, even if the evidence in
the two cases veers from identicality, the Supreme Judicial
Court did not set the facts in Canty as a floor for the strength
of evidence required to overcome prejudice caused by improper
opinion testimony. Notably, the dissent cites no case in which
opinion testimony of the type involved in the present case
furnished grounds for reversal, particularly when ameliorated by
the instruction administered in both Canty and this case.
                                                                     13


    When evaluating sufficiency, the evidence must be reviewed

with specific reference to the substantive elements of the

offense.   See Jackson v. Virginia, supra at 324 n.16;

Commonwealth v. Latimore, supra at 677-678.     In the

circumstances of this case, to establish the defendant's guilt

of OUI 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, (3) while under

the influence of alcohol.     Commonwealth v. Palacios, 90 Mass.

App. Ct. 722, 728 (2016).     At this defendant's trial, the first

two elements, operation of a vehicle and public way, were

stipulated to by the parties.     Therefore, the only element the

Commonwealth was required to prove was that the defendant was

under the influence of alcohol.     However, the Commonwealth need

not prove that the defendant was drunk, only that alcohol

diminished her ability to operate a motor vehicle safely.

Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988).

    The evidence recited previously in part 2.a, supra, which

supported our conclusion that the error in the trooper's

testimony was not prejudicial, also supports our determination

that the evidence was sufficient to support the defendant's

conviction.     In the light most favorable to the Commonwealth,

the defendant exhibited classic symptoms of alcohol

intoxication:    her eyes were bloodshot and glassy; an odor of
                                                                  14


alcohol emanated from her person; her speech was slurred; she

admitted to drinking three beers; she parked her car

"crooked[ly]" or "diagonally" across two parking spaces,

contrary to instructions; she swayed and could not stand

straight while being instructed on how to perform field sobriety

tests; and she was unable to properly perform two out of three

of the tests.   From all of this, a rational jury were entitled

to find the defendant guilty of OUI.

    Relying on authority from outside the Commonwealth, see

United States v. Horn, 185 F. Supp. 2d 530, 558 (D. Md. 2002),

the defendant claims that the field sobriety tests she failed

are not conclusive evidence of intoxication.   Putting aside

whether this is true, see Commonwealth v. Brown, 83 Mass. App.

Ct. 772, 776-777 (2013) ("The responses of a person impaired by

alcohol to [physical field sobriety] tests are incriminating

'not because the tests [reveal the] defendant's thoughts, but

because [the defendant's] body's responses [differ] from those

of a sober person'" [citation omitted]), or that such a

proposition would go to the weight of the evidence and not its

sufficiency, as we have recounted, there was abundant additional

evidence of the defendant's impairment in addition to the field

sobriety tests.

    Finally, the defendant claims that the jury were required

to speculate that her poor performance on the field sobriety
                                                                    15


tests was caused by alcohol intoxication rather than her

arthritis.   "However, to indulge this argument, we would have to

view the evidence in the light least favorable to the

Commonwealth, which, of course, we cannot do."     Commonwealth v.

Arias, 78 Mass. App. Ct. 429, 435 (2010).     See Commonwealth v.

James, 30 Mass. App. Ct. 490, 491 n.2 (1991).     See also

Palmariello v. Superintendent of Mass. Correctional Inst.

Norfolk, 873 F.2d 491, 493 (1st Cir.), cert. denied, 493 U.S.

865 (1989) (appellate court not obligated to "reread the record

from a [defendant's] perspective").     The record evidence, and

the reasonable inferences drawn therefrom, properly supported

the defendant's conviction.

                                      Judgment affirmed.
     AGNES, J. (dissenting).   I write separately not because the

evidence heard by the jury was insufficient to support the

jury's verdict that the defendant, Judith A. Gallagher, was

operating her motor vehicle on a public way while under the

influence of alcohol (OUI) in violation of G. L. c. 90, § 24.

The evidence of the defendant's guilt was sufficient.    The

question before us, however, is different.   We are asked to

determine whether prejudice resulted from the judge's error in

allowing the State police Trooper John Haidousis, the sole

witness at trial, to give his opinion about the defendant's

guilt, over the defendant's objection and in violation of

Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013),1 by stating

that she was "impaired to operate a motor vehicle."     The

standard we must follow requires that we consider what effect,

if any, the error had on the minds of the jurors, not on our

own, in relation to the evidence as a whole.   Kotteakos v.

United States, 328 U.S. 750, 764 (1946).   In particular, the

standard is this:

     "[I]f, when all is said and done, the conviction is sure
     that the error did not influence the jury, or had but very

     1
       "The balance we reach is that a lay witness in a case
charging operation of a motor vehicle while under the influence
of alcohol may offer his opinion regarding a defendant's level
of sobriety or intoxication but may not opine whether a
defendant operated a motor vehicle while under the influence of
alcohol or whether the defendant's consumption of alcohol
diminished his ability to operate a motor vehicle safely."
Canty, supra at 544.
                                                                    2


    slight effect, the verdict and the judgment should stand,
    except perhaps where the departure is from a constitutional
    norm or a specific command of [the Legislature] . . . .
    But if one cannot say, 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, it is impossible to conclude that
    substantial rights were not affected."

Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445-446 (1983),

quoting from Kotteakos, supra at 764-765.

    One way to measure whether the error in admitting lay

witness opinion testimony, like that involved in this case, was

prejudicial error is to compare the facts in the instant case to

those in Canty, where the Supreme Judicial Court concluded that

the error was nonprejudicial.   466 Mass. at 545.   The

comparison, in my view, does not assist the Commonwealth.      In

Canty, the court described the evidence of the defendant's guilt

as "overwhelming" based on the following factors:    (1) the

officer's observations of the defendant's "erratic driving," (2)

the defendant's inability to put his vehicle into "park" when

directed to do so by the officer, (3) the defendant's difficulty

in retrieving his identification from his wallet, (4) the

defendant's "poor" performance on two field sobriety tests, (5)

the defendant's admission that he had consumed four beers, and

(6) the discovery of a "half-empty" bottle of liquor in the

defendant's vehicle.   Id. at 537, 545.   In the present case, on
                                                                    3


the other hand, the evidence, while sufficient to support a jury

verdict of guilty, was not overwhelming.

    Here, the evidence was that the defendant arrived at a

State police OUI checkpoint on Route 33 in Chicopee at about

12:15 A.M. and was directed to a secondary location to speak to

Trooper Haidousis.    She was the sole occupant of the vehicle.

She was told her to park her vehicle in a marked space in a

parking lot used by an adjoining business.     The testimony was

that the defendant "parked crooked across the, uh, lines, not

directly in a space."    In Canty, by contrast, a local police

officer was on a main street in a marked cruiser when he saw the

defendant's vehicle pass by and "come within four inches of

striking the curb."     Id. at 536.   The officer "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."     Ibid.   Additionally, in Canty, when the

officer activated the blue lights on his cruiser, the defendant

did not apply the brakes for fifteen to twenty seconds, and then

"traveled another fifteen to twenty seconds before pulling over

to the side of the road."     Ibid.

    In the present case, there is no evidence that the

defendant did not put her vehicle in park and turn off the

engine when directed to do so.     In Canty, by contrast, the
                                                                     4


defendant did not put his vehicle in park after he was pulled

over.   Ibid.   "Because the vehicle's reverse lights remained on,

[the police officer] used his cruiser's public address system to

instruct the driver to put the truck 'in park.'    The reverse

lights remained on, so [the police officer] 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."     Ibid.

     In Canty, the court noted that "[w]hen [the police officer]

asked the defendant for his license and registration, the

defendant had difficulty retrieving his identification from his

wallet."   Id. at 537.   In the present case, the defendant had no

difficulty in producing her license for Trooper Haidousis.

     In Canty, the defendant was asked to perform two of the

three field sobriety tests performed by the defendant in the

present case:   the "nine-step walk and turn" test and the "one-

leg stand" test.    Ibid.   In Canty, the officer conducting the

tests testified that "[w]hen [the defendant] stepped out of the

vehicle, [he] tripped over his own feet and 'almost stumbled.'"

Ibid.   When performing the nine-step walk and turn test, the

defendant in Canty "walked at a complete forty-five degree

angle, almost like a severe wind was blowing him to the side."

Ibid.   When performing the one-leg stand test, "the defendant

put his foot down three separate times, and raised his arms to
                                                                        5


maintain balance."       Ibid.   In the present case, there is no

evidence that the defendant had any difficulty exiting from her

vehicle.      The trooper testified that the defendant followed his

instructions by assuming the correct position and not beginning

until instructed to do so.       In performing the test, the

defendant took seven steps forward and six steps back although

she stepped off of the line and did not keep her feet heel to

toe.       When performing the one-leg stand, which requires that a

person hold one leg six inches off of the ground and, while

keeping her arms by her sides, count aloud from one one-thousand

to thirty one-thousand, the defendant put her foot down after

about eleven seconds and did not count aloud.        There also is

evidence that the defendant successfully completed a third test

which the trooper described as being able to recite the

alphabet.

       In terms of similarities between the facts in Canty and

those in the present case, there is evidence that both

defendants admitted to having consumed alcohol (three beers for

the defendant here and four beers for the defendant in Canty)

and both exhibited physical signs often associated with

intoxication (odor of an alcoholic beverage coming from their

person and bloodshot eyes).2       However, in Canty, the court noted


       2
       In the present case, the trooper also testified that the
defendant's speech was "a bit slurred." When asked for details,
                                                                   6


that a "half-empty" bottle of liquor was found on the floor of

the front passenger seat of the defendant's vehicle.   Ibid.

     There is no precise formula for measuring what effect, if

any, erroneously admitted evidence has on the minds of jurors.

However, using the facts in Canty as a guide, the present case

is not one in which there was overwhelming evidence that the

defendant operated her vehicle while impaired by alcohol.

Considering that the evidence portion of the trial consisted of

only thirty-seven pages of transcript, made up entirely of the

testimony of Trooper Haidousis, I am unable to say with

conviction that his erroneously admitted opinion that the

defendant was "impaired to operate a motor vehicle" either had

no effect or only a slight effect on the minds of the jury.3



the trooper could not recall any specific words that were
slurred by the defendant, and did not observe any evidence of
soiled clothing, fumbling, bruises, or scratches.
     3
       As a result of a stipulation by the parties, the only
issue before the jury was whether the Commonwealth proved beyond
a reasonable doubt that the defendant was under the influence of
alcohol when operating her vehicle. The judge instructed the
jury on the basis of the model jury instruction that "[a] person
is under the influence of alcohol, if she has consumed enough
alcohol to reduce her ability to operate a motor vehicle safely,
by decreasing her alertness, judgment and ability to respond
promptly. It means that a person has consumed enough alcohol to
reduce her mental clarity, self-control and reflexes and thereby
left her with a reduced ability to drive safely. The
Commonwealth is not required to prove that [the defendant]
actually drove in an unsafe or erratic manner, but is required
to prove that her ability to drive safely was diminished by
alcohol." The judge appropriately added that the jury may "rely
on [their] own experience and common sense about the effects of
                                                                    7


See, e.g., Commonwealth v. Federico, 425 Mass. 844, 853 (1997);

Commonwealth v. Quinn, 469 Mass. 641, 650 (2014).

    There is another feature of this case that I believe

deserves attention.   In Canty, the Supreme Judicial Court

reiterated the long-standing rule that police officers, like

other lay witnesses, may "offer their opinion of an individual's

sobriety."   466 Mass. at 540, citing Commonwealth v. Jones, 464

Mass. 16, 17 n.1 (2012) (police officer in prosecution for OUI

may testify to defendant's "apparent intoxication").    The court

explained, supra at 541, that the reason for this rule is that a

lay witness's opinion about another person's sobriety or

intoxication is based on reasoning from everyday life

experiences as opposed to the opinion of an expert witness,

which is based on scientific, technical, or other specialized




alcohol," and that the jury "should consider any believable
evidence about the defendant's alleged consumption of alcohol,
as well as her appearance, condition and behavior at that time."
Finally, the judge told jurors that they "heard testimony of an
opinion about [the defendant's] sobriety," and that they "may
consider any opinion [they had] heard and accept it or reject
it."

     In Canty, 466 Mass. at 545, the court observed that the
judge's instruction informing the jury that they could accept or
reject any opinion testimony had a bearing on whether the
erroneous admission of the police officer's opinion that the
defendant's ability to drive was impaired by alcohol, i.e., an
opinion on the ultimate issue, was prejudicial. If the police
officer should not be allowed to give such an opinion, an
instruction to the jury that they may accept or reject it hardly
seems curative.
                                                                   8


knowledge.4   If, as the Canty court explained, there is a

distinction between permissible lay witness opinion testimony by

a police officer about whether a driver is intoxicated and her

level of impairment in an OUI case, see Mass. G. Evid. § 701

(2017), and an expert witness opinion in an OUI case that is

based on "scientific, technical, or other specialized

knowledge," Mass. G. Evid. § 702 (2016), what are we to make of

the testimony by the State police trooper in this case that was

based on "standardized field sobriety test[s]"?



     4
       "We begin by noting that an opinion regarding a
defendant's sobriety is a lay opinion, not an expert opinion,
and the reasons for admitting a lay opinion are wholly different
from the reasons for admitting an expert opinion. An expert's
opinion is admissible only where an expert possesses scientific,
technical, or other specialized knowledge that will assist the
jury in understanding a fact in issue, and where the expert has
applied reliable principles and methods to the facts of the
case. . . . A lay opinion, in contrast, 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. . . . While an expert opinion is admissible only
where it will help jurors interpret evidence that lies outside
of common experience, . . . a lay opinion is admissible only
where it lies within the realm of common experience, because a
lay opinion is relevant only where, as with sobriety, the
principal objective symptoms are so well known that we consider
the lay opinion to have probative value. . . . Even where a
witness has described the defendant's appearance, manner, and
conduct (e.g., bloodshot eyes, slurred speech, and unsteady
gait), a lay opinion by a percipient witness regarding the
defendant's intoxication is still of probative value because
such an opinion, especially as to the level of intoxication, may
be shaped by observations too numerous or subtle to mention."
Canty, supra at 541-542 (quotation marks omitted).
                                                                    9


    The bulk of the trooper's testimony with respect to the

defendant's impairment due to the consumption of alcohol

consisted of his explanation of the components of the field

sobriety tests and the defendant's performance on those tests.

There was no objection to this testimony.    Indeed, there were

many questions asked on cross-examination about field sobriety

tests, including the trooper's training to look for "certain

clues," the "instructional phase" and the "performance phase" of

the tests, the "Standardized Field Sobriety Testing Manual," and

whether people over the age of sixty-five or those with back,

leg, or inner ear problems should take the tests.

    The question I raise is not whether police officers, as

witnesses, should be singled out for special treatment simply

because they are law enforcement officers.    See Commonwealth v.

Desmond, 345 Mass. 774, 774 (1963).    And I do not suggest that

police officers should be prevented from or limited in

testifying about a person's "sense of balance, coordination, and

acuity of mind in understanding and following simple

instructions."    Commonwealth v. Sands, 424 Mass. 184, 188

(1997).   See Commonwealth v. Schutte, 52 Mass. App. Ct. 796,

800-801 (2001); Commonwealth v. Brown, 83 Mass. App. Ct. 772,

774 n.1 (2013).   See also Commonwealth v. Brennan, 386 Mass.

772, 779 (1982) (field sobriety tests do not implicate privilege

against self-incrimination under Fifth Amendment to United
                                                                  10


States Constitution or art. 12 of Massachusetts Declaration of

Rights because they do not force subject to reveal her

"knowledge or thoughts").   Instead, the question is whether

steps should be taken to ensure that lay witness opinion

testimony that a person is under the influence of alcohol is not

misunderstood by jurors as testimony based on scientific,

technical, or other specialized knowledge.   See, e.g., United

States v. Horn, 185 F. Supp. 2d 530, 560 (D. Md. 2002).     See

also Commonwealth v. A Juvenile, 21 Mass. App. Ct. 121, 125

(1985) (trial judges have discretion to fashion specific

instructions to assist jury in determining credibility of

classes of witnesses "provided these do not create imbalance, or

indicate the judge's belief or disbelief in the given witness").

    In the present case, the judge instructed the jury that

they "may consider any opinion [they] have heard and accept it

or reject it."   However, if the opinion by Trooper Haidousis was

inadmissible for the reasons explained in Canty, 466 Mass. at

544, this instruction was not accurate, and certainly not

calculated to inform the jury that the basis of the witness's

opinion was not scientific, technical, or other specialized

knowledge.   Compare Mass. G. Evid. § 702 (2017) with Mass. G.

Evid. § 701 (2017).   Perhaps consideration should be given to

the use of an instruction that informs the jury that a police

officer's opinion about a driver's performance on field sobriety
                                                                 11


tests like those used in this case is not an expert opinion

based on scientific, technical, or other specialized knowledge

but, rather, testimony based on the officer's experience, which

the jury may accept or reject.5




     5
       See State v. Gracia, 51 Conn. App. 4, 19 (1998). In
Gracia, an OUI case in which the nine-step walk and turn test
and the one-leg stand test were administered to the defendant,
the trial judge told the jury that "roadside sobriety tests were
not scientific evidence, and that it should consider the
observations made during the tests and use its common experience
in determining whether the defendant was intoxicated." Ibid.

     The police, of course, are permitted to videotape a
driver's performance of field sobriety tests, which may be the
most reliable evidence of a person's "sense of balance,
coordination, and acuity of mind in understanding and following
simple instructions." Sands, 424 Mass. at 188. See
Commonwealth v. Mahoney, 400 Mass. 524, 528 (1987). At one
time, some police departments routinely videotaped the booking
process in OUI cases. See, e.g., Commonwealth v. Cameron, 25
Mass. App. Ct. 538, 543 (1988). See also Commonwealth v. Carey,
26 Mass. App. Ct. 339, 340 (1988) ("When relevant, videotapes
have the virtue of presenting an accurate, vivid, and fair
representation of the way people acted or spoke or how things
looked when the tape was recorded"). Today, there is technology
available to (and in some cases used by) the police that would
permit the videotaping of a driver's performance of sobriety
tests in the field.
