COMMONWEALTH v. GIBB (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Boston Municipal Court, the defendant was convicted of operating under the influence of intoxicating liquor (OUI).² See G. L. c. 90, § 24. In this direct appeal of that conviction, he argues that the judge erred in permitting the arresting Massachusetts State Police trooper to testify to his opinion that the defendant was “impaired” by alcohol, and that as a result, the conviction should be vacated. We affirm.

On direct examination, in response to the question, “[D]id you form an opinion as to [the defendant's] sobriety,” the trooper responded, “I formed the opinion that [the defendant] was impaired at that time and placed him under arrest.” As the defendant did not object to this testimony at trial, we review for a substantial risk of miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). It is well-settled that lay opinion testimony as to whether a person was intoxicated by alcohol is admissible at trial. See Commonwealth v. Canty, 466 Mass. 535, 540 (2013). The trooper was not asked for, and did not offer, any opinion on the defendant's guilt or innocence. See Commonwealth v. Hamilton, 459 Mass. 422, 439 (2011). “We do not agree with the defendant that [the trooper's] opinion would reasonably have been understood by the jury to refer to impairment of the defendant's ability to drive ․’ ” Canty, supra at 544. The statement was admissible. See id.

Even if we concluded that it were error to admit the trooper's opinion -- and we do not -- we would not discern any substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850 (2010). Evidence of the defendant's intoxication included the trooper's testimony that his attention was first drawn to the defendant's car when he saw it make two sharp lane changes in traffic on Route 93, and that when he signaled the defendant to pull over, he did so in a slow, jerky manner. The trooper testified that he smelled alcohol coming from the vehicle and, once the defendant was out of the car, from the defendant's person. According to the trooper, the defendant's eyes were glassy and bloodshot, his speech was “slurred and heavy,” and he fumbled through his glove box and wallet in his efforts to retrieve his license and registration. The trooper also testified that in getting out of his car, the defendant stumbled, almost placing himself in the adjacent travel lane, and that he performed unsatisfactorily two of the three field sobriety tests that he agreed to take. Additionally, although in the course of the stop, the defendant denied having consumed any alcohol, following the defendant's arrest, an inventory search of the vehicle revealed a closed, but unlocked briefcase on the front passenger's seat; the bag contained a half-empty bottle of Smirnoff Ice and two half-empty pints of whiskey. See Commonwealth v. Rollins, 59 Mass. App. Ct. 911, 912 (2003). The evidence of the defendant's guilt was, if not overwhelming, at least strong. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) (evidence of driver's imbalance, emanating odor of alcohol, slurred speech, inability to complete field sobriety tests, and failure to park as instructed sufficient to support OUI conviction). See also Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 545 (2008) (evidence of driver's erratic driving, weaving through traffic, bloodshot eyes, scent of alcohol, slurred speech, and unsteady gait, with presence of empty alcohol containers in vehicle, sufficient to support OUI conviction). We have no doubts about “whether the result of the trial might have been different” had the officer's opinion that the defendant was “impaired” not been admitted.³ See Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

Judgment affirmed.

FOOTNOTES

2.   The same jury acquitted the defendant of negligent operation of a motor vehicle. See G. L. c. 90, § 24 (2) (a). The defendant was then convicted of OUI as a second offense after a jury-waived trial. See G. L. c. 90, § 24 (1) (a) (1). Earlier in the case, one count of possession of a class B drug, see G. L. c. 94C, § 32A (a), and one count of distribution of a class B drug, subsequent offense, see G. L. c. 94C, § 32A (b), were dismissed at the Commonwealth's request.

3.   To the extent that the defendant argues that the judge erred in failing to give, sua sponte, the optional supplemental jury instruction on the assessment of opinion testimony concerning a defendant's sobriety, we are not persuaded. The judge properly instructed the jury on their duty to assess the credibility of all of the evidence presented at trial, and on their discretion to disbelieve some or all of any witness's testimony. Under the circumstances, the judge did what was required. See Instruction 5.310 of the Criminal Model Jury Instructions for Use in the District Court (June 2018) (identifying supplemental instruction 1, “If there is opinion evidence about the defendant's sobriety,” as “optional”).