COMMONWEALTH v. STAPLETON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A District Court jury found the defendant guilty of negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a), and operating under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1). On appeal, she argues that (1) there was insufficient evidence that her operation of her vehicle was negligent and (2) the judge erred in admitting certain testimony by the arresting officer. We affirm.

Background. The jury could have found that a police officer, called to the scene of a motor vehicle crash, observed a vehicle stopped in the middle of a travel lane of a public way with the defendant standing outside it, leaning into the driver's seat. The passenger side of the vehicle appeared to have hit a snowbank; the front tire was punctured and deflated, the front fender was missing, and the rear rim was damaged. The defendant told the officer that she had come from a bar where she had been drinking, and the officer noticed that her breath smelled strongly of alcohol, her eyes were red, glassy, and bloodshot, and her speech was occasionally slurred. Based on these factors and the defendant's performance on field sobriety tests, the officer formed the opinion that she was drunk. He placed her under arrest; during the booking process, she admitted to him that she had been driving the vehicle. A male passenger in the vehicle also stated that the defendant was driving and was drunk.

Discussion. a. Sufficiency of the evidence. A conviction of negligent operation of a motor vehicle requires the Commonwealth to “prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) negligently so that the lives or safety of the public might be endangered.” Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017). The defendant challenges the sufficiency of the evidence of her negligence, claiming that the “only evidence as to any manner of operation in this case was the uncontested testimony that a passenger [a woman named Jessica] grabbed the steering wheel and caused the accident.” Although the defendant offered this explanation to the arresting officer, the jury were not required to credit it. The male passenger, asked on cross-examination whether Jessica's yanking of the wheel caused the crash, declined to agree, as he had not been paying attention and “it all happened too fast. I don't know why -- I mean, we were swerving at first.” The jury could reasonably have inferred that the collision with the snowbank resulted simply from the intoxicated defendant's careless operation of the vehicle. Under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence was sufficient that the defendant operated the vehicle negligently.

b. Evidentiary issue. The arresting officer, asked if he was “able during [his] investigation to determine who was driving the vehicle,” answered in the affirmative, and when asked who he had determined was driving, he testified, over the defendant's objection, that he had “determined that it was [the defendant] operating the motor vehicle.” The defendant, however, failed to state the basis of her objection, nor was it apparent from the context. See Mass. G. Evid. § 103(a)(1)(B) (2019). In these circumstances, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Fowler, 431 Mass. 30, 40-42 (2000); Mass. G. Evid. § 103(e) (2019).

The defendant now argues, first, that the officer's testimony constituted improper vouching. There was no error in this regard. “Improper vouching consists of expressing a personal belief in the credibility of a witness or indicating that one possesses special knowledge from which the witness's credibility could be verified.” Commonwealth v. Bradford, 52 Mass. App. Ct. 220, 223 (2001). A witness may not express an opinion about the credibility of another witness. See Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). But we see nothing in the officer's testimony that expressed or implied any belief or knowledge about the credibility of the only other witness in the case, the male passenger.¹

The defendant also argues that the officer's testimony “had no probative value independent of the source underlying his determination” and had the “unfairly prejudicial and misleading effect of suggesting he had additional and special information, making him certain of the identity of the operator.” Assuming without deciding the validity of this objection, we are unpersuaded that the testimony in question created a substantial risk of a miscarriage of justice. The officer later testified that the defendant had admitted to him that she had been driving. We think the jury would have understood the officer's “determin[ation]” of who had been driving as being based on this statement by the defendant. Even if admission of the testimony was error, we do not have “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

Judgments affirmed.

FOOTNOTES

1.   The defendant also argues that the officer's testimony implied some special knowledge that the defendant's supposed denial of having operated the vehicle was false. But there was no evidence that the defendant denied operating the vehicle at the time of the accident. Rather, the officer merely recounted the defendant's statement that, at some unspecified time relative to the accident, the male passenger “had taken off in the vehicle; he was driving and he took off on the road down the street.”