COMMONWEALTH v. ZELADA AYALA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of marijuana (OUI marijuana) in violation of G. L. c. 90, § 24 (1) (a) (1). On appeal, the defendant claims that the judge erred in denying his motion to suppress evidence and that the evidence at trial was insufficient to support his conviction. He also claims that the prosecutor's improper closing argument should have resulted in a mistrial. We affirm.

1. Motion to suppress. The motion judge credited the testimony of two Massachusetts State Troopers who testified at the hearing on the motion to suppress. We summarize their testimony. On December 31, 2016, Massachusetts State Police Sergeant Edward Troy and Trooper Alexander Vath were part of a team operating a sobriety checkpoint on Route 1 in Saugus. Sergeant Troy, the initial screening officer, met the defendant as the defendant entered the sobriety checkpoint in his motor vehicle. As he did so, Sergeant Troy observed smoke coming from the car and detected an odor of burnt marijuana. He also observed that the defendant's eyes were glassy and his speech was “thick-tongued” and “didn't make sense.” Based on those observations, Sergeant Troy directed the defendant to move his vehicle to the secondary screening area for further evaluation.

At the secondary screening area Trooper Vath smelled a “very strong odor of freshly burnt marijuana” and observed that the defendant had difficulty speaking. The defendant told Trooper Vath that he and his girlfriend were “looking for some food.” The defendant admitted that “he had been smoking marijuana earlier that evening.” Trooper Vath directed the defendant to step out of the vehicle so that he could conduct roadside sobriety assessments. On the nine-step walk and turn assessment, the defendant failed to follow Trooper Vath's directions. He failed to take the correct number of steps, failed to walk heel to toe as instructed, and turned awkwardly. He also had fits of giggling. After the roadside assessments were completed, Trooper Vath arrested the defendant for OUI marijuana.²

The defendant claims that his motions to suppress should have been allowed because his detention at the sobriety checkpoint was not supported by reasonable suspicion and his subsequent arrest for OUI marijuana was not supported by probable cause. We disagree.

To justify the detention of a driver at a sobriety checkpoint, the police must have reasonable suspicion of criminal activity. Commonwealth v. Murphy, 454 Mass. 318, 319 (2009). The odor of burnt marijuana alone is insufficient to establish reasonable suspicion of OUI marijuana. Commonwealth v. Craan, 469 Mass. 24, 28 (2014). Here, however, there was evidence in addition to the odor of burnt marijuana. The defendant's glassy eyes and his difficulty speaking were specific and articulable facts which supported the temporary detention of the defendant for the administration of roadside sobriety assessments.

“[P]robable cause exists, where at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Davis, 481 Mass. 210, 214 (2019), quoting Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). Here, at the moment of the defendant's arrest, Trooper Vath knew that the defendant's car smelled of marijuana and that the defendant had glassy eyes, garbled speech, and fits of giggling. Considered together with the defendant's admission that he had smoked marijuana “earlier in the evening” and his poor performance on the nine-step walk and turn assessment, there was probable cause to believe that the defendant was operating a motor vehicle while under the influence of marijuana. For all of these reasons, we discern no error in the denial of the motion to suppress evidence.

2. Sufficiency of the evidence. To sustain a conviction for OUI marijuana, the Commonwealth must prove beyond a reasonable doubt that the defendant operated a motor vehicle, on a public way, after consuming marijuana that impaired his ability to drive a motor vehicle safely. See Commonwealth v. Davis, 481 Mass. 210, 215-216 (2019); Commonwealth v. Gerhardt, 477 Mass. 775, 780 (2017). We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of OUI marijuana beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

At trial, Sergeant Troy and Trooper Vath provided evidence consistent with their testimony at the hearing on the motion to suppress. In addition, the jury observed Trooper Vath demonstrate the defendant's poor performance on the nine-step walk and turn assessment. Trooper Vath also testified regarding the defendant's performance on the other roadside assessments. He told the jury that during the one-leg stand, the defendant pumped his leg back and forth in an exaggerated manner and had trouble maintaining his balance. The jury also heard that when Trooper Vath asked the defendant to recite the portion of the alphabet from S to Y, the defendant replied, “S, U, Y.” All of this evidence, when considered together and in the light most favorable to the Commonwealth, was sufficient to establish beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of marijuana. Accordingly, the defendant's motions for required findings of not guilty were properly denied.

3. Motion for mistrial. The defendant claims that the prosecutor misstated the evidence during closing argument and that the misstatements should have resulted in a mistrial. We review the denial of a motion for a mistrial for an abuse of discretion, Commonwealth v. Santana, 477 Mass. 610, 625-626 (2017), and see none here.

The defendant first challenges the prosecutor's statement that during the nine-step walk and turn assessment, Trooper Vath redirected the defendant to the proper starting position five times. According to the defendant, the evidence showed he was redirected only four times. We have carefully reviewed the record and conclude that the jury could have reasonably inferred from Trooper Vath's testimony that the defendant had difficulty maintaining the starting position for the walk and turn assessment and that Trooper Vath redirected the defendant to the correct starting position once at the beginning of his instructions and four additional times. But even assuming that the prosecutor misstated the number of times the defendant was redirected to the starting position, we see no unfair prejudice. The import of the testimony was that the defendant failed to follow Trooper Vath's instructions. That remains true whether the defendant was redirected four times or five.

The defendant also challenges the prosecutor's statement that the defendant was “unbalanced” as he performed the one-leg stand. Again, we see no error. Trooper Vath testified that during the assessment, the defendant pumped his leg back and forth in an exaggerated manner. He also stated that the defendant had “trouble maintaining his balance” and that he “lift[ed] his arms out to the sides during [the assessment].” This testimony allowed a reasonable inference that the defendant was “unbalanced” as he performed the assessment.

In short, we see no abuse of discretion in the judge's denial of the motion for a mistrial, particularly in light of his instructions to the jury that the arguments of counsel were not evidence and that the jury's memory of the evidence controlled.

Judgment affirmed.

FOOTNOTES

2.   At the hearing on the motion to suppress, Trooper Vath did not describe the defendant's performance on the other roadside assessments -- the alphabet, the one-leg stand, and the horizontal gaze nystagmus.