COMMONWEALTH v. GAZIANO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant, John V. Gaziano, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. See G. L. c. 90, § 24. On appeal, he claims that the trial judge erred in admitting several statements made by the defendant, which he maintains were more prejudicial than probative. The defendant also contends that Trooper Matthew Sullivan offered impermissible opinion testimony regarding the ultimate issue of impairment. We affirm.

Statements. During the course of the stop and subsequent booking, the defendant volunteered several statements. He said that he could “kill [Trooper Sullivan] with the gun he had,”² that he could “kick [Trooper Timothy Benedetto's] ass,” that he could kill Troopers Sullivan and Benedetto, and that he could “get any drugs that he wanted -- kilos of cocaine.” After urinating in the back seat of the police cruiser, he also asked, “[H]ow about can we just make this all go away?”

In response to the defendant's motion in limine to exclude the statements, the trial judge ruled that the statements “by their nature are prejudicial, but are also very probative.” The defendant contends that the admission of these statements (and others) was an unnecessary and detrimental piling on of bad act evidence. We review for prejudicial error.³ See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389 (2017).

“[E]vidence is admissible unless unduly prejudicial, and ‘[i]n weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong.’ ” Commonwealth v. Rosa, 468 Mass. 231, 241 (2014), quoting Commonwealth v. Rousseau, 465 Mass. 372, 388 (2013) (admission of defendant's use of highly offensive language during recorded telephone call was not unduly prejudicial). The defendant's belligerence was indicative of his level of sobriety, and the disinhibition which accompanies intoxication. The evidence was highly probative and was not unduly prejudicial. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994) (“That a defendant was belligerent, unsteady on his feet[,] and smelled of alcohol are factors that may support an inference of diminished capacity to operate safely due to intoxication”).⁴

In addition to the statements, the defendant also claims that the trial judge should have informed the jury that the statements were being introduced for a limited purpose. In the absence of such instruction, he claims that any probative value of the evidence was outweighed by the prejudicial effect. No request for an instruction was made. But whether we review for prejudicial error, or a substantial risk of a miscarriage of justice, see Commonwealth v. Lounge, 87 Mass. App. Ct. 906, 908 n.2 (2015), we see no error in the admission of the evidence, with or without a limiting instruction.⁵

The defendant was not charged with a crime of violence, as to which threats or a propensity to violence might arguably taint the jury's consideration. In fact, the prosecution and the defense both tried the case on the theory that he had no gun, the troopers knew it, and the statements were histrionic and bombastic. The prosecutor attributed his behavior and demeanor to intoxication, the defense to anger and resentment. The judge did not abuse his discretion in admitting the evidence, and the later absence of a limiting instruction did not prejudice the defendant or create a substantial risk of a miscarriage of justice.⁶

Lay opinion on the ultimate issue. “[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.” Commonwealth v. Canty, 466 Mass. 535, 544 (2013). Trooper Sullivan's testimony that he had “formed the opinion that [the defendant] had been operating his motorcycle under the influence of intoxicating liquor” constituted an impermissible lay opinion on the ultimate issue before the jury, and was error.

Absent objection, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013). The Commonwealth's evidence of impairment was overwhelming. Trooper Sullivan observed the defendant swerving in traffic, driving at approximately one hundred miles per hour. The defendant spoke with “lethargic, thick-tongued, slurred speech,” had bloodshot and “glossy [sic]” eyes, and his breath smelled of alcohol. The defendant lacked proper balance when he got off the motorcycle and performed the field sobriety tests. After he was arrested, he became irate and ranted at the troopers. He urinated inside the police cruiser. At booking, Trooper Benedetto noticed a strong odor of alcohol, glassy and bloodshot eyes, and slow, slurred speech. Trooper Sullivan permissibly gave his opinion that the defendant was intoxicated.

The defendant maintains that the jury instruction here compares unfavorably with that given in Canty, and that the risk of prejudice is therefore magnified. In Canty, the jury were told, “You have heard testimony of opinions about the defendant's sobriety. Ultimately, it is for you, as the jury, to determine whether the defendant was under the influence of alcohol according to the definition that I have provided. You may consider any opinion you have heard and accept or reject it.” Canty, 466 Mass. at 545.⁷ Here, the jury were told, “You've heard testimony of an opinion about the defendant's sobriety. Ultimately, it's for you as the jury to determine whether the defendant was under the influence of alcohol according to the definition I just provided. You may consider any opinion that you have heard and accept it or reject it.” The instructions are virtually identical. As in Canty, the judge here also told the jury that “you and you alone must decide whether the defendant was under the influence of intoxicating liquor.” Finally, the jury here were told, “In no event should you give any greater or lesser credence to the testimony of a witness just because he or she is a member of law enforcement.” An indistinguishable instruction was also given in Canty.

Viewing the instruction as a whole, see Commonwealth v. AdonSoto, 475 Mass. 497, 510 (2016), and in light of the evidence at trial, there is little risk, much less a substantial risk, that the jury would have reached a different conclusion had it not been for Trooper Sullivan's testimony. See Saulnier, 84 Mass. App. Ct. at 607.

Judgment affirmed.

FOOTNOTES

2.   The trooper had pat frisked the defendant and knew he did not have a gun.

3.   The defendant filed a motion in limine to exclude the statements; the claim of error is therefore preserved. See Commonwealth v. Grady, 474 Mass. 715, 716-717 (2016). The judge excluded two statements, one which made reference to prior long term incarceration, and another in which he boasted that he had beaten other cases before.

4.   This case is distinguishable from Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 373 (2006), which involved admission of protected refusal evidence. See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 777 (2013) (“Refusal evidence ․ stands on a different footing”).

5.   The defendant's argument that the testimony improperly served as consciousness of guilt evidence founders as well. The defendant's request to make the case go away, and his apologies, were properly admitted as the statements of a party opponent. See generally Commonwealth v. Mendes, 441 Mass. 459, 467 (2004). A reasonable jury could interpret the statements as evidence of a guilty conscience or an admission of impaired operation. The judge gave a consciousness of guilt instruction.

6.   The judge excluded Trooper Sullivan's testimony that the defendant had friends who were murderers. Trooper Sullivan testified to this anyway. The judge struck the testimony. The defendant now argues that the judge erred by failing to give a curative instruction. No instruction was requested, and the judge did not err in simply striking the testimony. Nor, for the reasons stated above, do we discern a substantial risk of a miscarriage of justice.

7.   The quoted language does not appear verbatim in Canty. We take judicial notice of the judge's instructions to the jury from the record. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002); Mass. G. Evid. § 201(b)(2) (2019) (We may judicially notice fact not subject to reasonable dispute because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).