COMMONWEALTH v. COULOMBE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a one-day trial at which Massachusetts State Police Trooper Paul Gifford was the Commonwealth's only witness, a District Court jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor (OUI), and negligent operation of a motor vehicle. The next day, a separate, jury-waived trial took place on so much of the complaint that charged the defendant with being a subsequent OUI offender. Again, the defendant was convicted. On appeal, the defendant claims that (1) as to the OUI conviction, the judge erred in allowing Gifford to testify that the defendant “was impaired by alcohol,” and that the evidence was insufficient; and (2) as to the bench trial, the evidence was insufficient to establish that this was her second OUI conviction.

We agree that Gifford's opinion that the defendant's ability to operate a motor vehicle “was impaired by alcohol” should not have been admitted. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389 (2017) (“[T]he [trooper's] opinion that the defendant was under the influence of alcohol[ ] was proper ․ However ․ the trooper['s] opin[ion] that the defendant's level of intoxication rendered her impaired to operate her vehicle, is the type of evidence that [is] prohibited ․ 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 also Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013). Nevertheless, we conclude that the erroneous admission of this portion of Gifford's testimony did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We further conclude that the evidence was sufficient to support both the defendant's conviction of OUI, and the finding that this was her second OUI conviction. Accordingly, we affirm.

Background. Gifford initiated a stop of the defendant's motor vehicle on June 30, 2015, because the defendant was driving twenty miles per hour on Acushnet Avenue, a busy road in New Bedford, while crossing and then straddling the double solid yellow line that divides the travel lanes. The defendant did not stop in response to the trooper's emergency lights, but continued driving through the next intersection before abruptly swerving to the right and coming to a stop. Gifford detected a strong odor of alcohol emanating from the defendant as he approached the vehicle. The defendant told Gifford that she had consumed three drinks and was headed home to Mattapoisett. Gifford observed that the defendant was driving away from Mattapoisett and asked her “why she was driving down the middle of the roadway as well as going slow.” The defendant's reply was, “whatever.” Gifford then asked the defendant “how long ago she had those drinks”; the defendant stated, “none of your goddamn business.” The defendant was slurring her words and unsteady on her feet as she exited the car in order to perform field sobriety tests. Gifford administered the “alphabet test,” the “one leg stand test,” and the “nine-step walk and turn test,” and he testified that the defendant performed poorly on each. He then opined -- based on his observations of the defendant and the manner in which she operated the vehicle -- that the defendant “was impaired by alcohol,” as follows:

“So I start out with her operations, the slow speed that sticks out instead of the posted speed limit, the failure to stay on the proper side of the road, straddling the double solid line, the not pulling over immediately for the emergency lights, especially at [twenty] miles per hour where I'm directly behind, then the abrupt pulling over instead of a smooth slow transition to the right. Then her appearance, the odor of an alcoholic beverage, her red and glossy eyes, her, excuse me, her glossy eyes[,] slurred speech, her statement to three drinks, and then her entire demeanor; confrontational, argumentative, not making sense, not going the right way to her house, unsteady on her feet outside the vehicle and then [the] field sobriety tests. The non-physical test, which is the alphabet has no physical attributes to it, unable to say the English alphabet, total number of letters, or the letters in the proper order, repeating herself, and then the physical test[s], the one leg stand test, the nine-step walk and turn, the instruction portion of it, forgetting things, and then the physical part of it on both tests, multiple attempts, failing all portions of both of those tests.”

The defendant testified in her own defense and denied that she was intoxicated. The defendant stated that she performed poorly on the field sobriety tests because of the shoes she was wearing, and that a booking video introduced in evidence by the Commonwealth depicts her acting aggressively because Gifford had sexually assaulted her. The defendant also testified that she lived in Mattapoisett at the time of her arrest but had returned to a previous address in New Bedford by the time of trial.

The judge explained to the jury in his preliminary instructions that the jury alone determines “what evidence to believe, how important any evidence is that you do believe and what conclusions all the believable evidence leads to.” The judge repeated this instruction in his final charge, along with his instruction that it was the Commonwealth's burden to prove beyond a reasonable doubt that the defendant “consumed enough alcohol to reduce her mental clarity, self-control and reflexes and thereby left her with a reduced ability to safely drive.” Although Gifford had offered his opinion of the defendant's lack of sobriety, the judge reminded the jury that, “[i]n the end, you and you alone must decide whether the defendant was under the influence of intoxicating liquor.”

Trial on the subsequent offender portion of the complaint took place the next day. Gifford testified that the defendant provided him with a license during the booking process, which had a picture of the defendant and contained a name with a middle initial, a date of birth, a social security number, and an address in Mattapoisett. Gifford compared the information on the license to a Board of Probation record for someone with the same full name, date of birth, and social security number as the defendant, along with an associated address in New Bedford that was the same as the one provided by the defendant during her testimony. The Board of Probation record reflected a prior Wareham District Court conviction for OUI. A certified copy of a docket sheet from Wareham District Court reflected the same OUI conviction of an individual with the same name and middle initial as the defendant, the same date of birth, and the same Mattapoisett address that appears on the defendant's license. Relying on this evidence, the judge convicted the defendant of being a second-time OUI offender.

Standard of review. “An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict.” Alphas, 430 Mass. at 13, quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). “In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error,’ Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), and whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision.” Alphas, supra.

Challenges to the sufficiency of the evidence are reviewed to determine “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 Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

Discussion. 1. OUI conviction. The defendant claims that Gifford's opinion testimony during the first portion of the bifurcated trial created a substantial risk of a miscarriage of justice because it improperly invaded the province of the jury. We disagree. As we have noted, while it was improper for Gifford to offer his opinion that the defendant's ability to operate a motor vehicle was impaired, his opinion that the defendant was under the influence of alcohol, and the observations upon which that opinion was based, were admissible. See Canty, 466 Mass. at 540; Gallagher, 91 Mass. App. Ct. at 389; Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994). Taking the admissible testimony in the light most favorable to the Commonwealth, the defendant “bore many of the classic indicia of impairment” while operating her vehicle on June 30, 2015. Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). The defendant was unsteady on her feet, had glassy eyes, smelled of alcohol, slurred her words, and was belligerent. See id.; Sudderth, supra at 321. She also performed poorly on tests designed to “measure 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). In our view, this evidence was not merely sufficient to overcome the defendant's motions for directed verdicts under Latimore, it “provided overwhelming evidence that [the defendant's] ability to operate was impaired by her alcohol consumption.” Gallagher, supra at 391. To the extent Gifford's testimony was contradicted by other evidence, such as the booking video, it was for the jury to resolve any conflict and “determine where the truth lies.” Commonwealth v. Garuti, 454 Mass. 48, 55 (2009), quoting Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981).

Any prejudice flowing to the defendant from the inadmissible portion of Gifford's opinion testimony was “relatively modest given what must have been obvious to the jury [in this case], i.e., that [Gifford] believed that the defendant's ability to operate her car was impaired by alcohol consumption.” Gallagher, 91 Mass. App. Ct. at 389-390. Although the judge did not give a specific, curative instruction in connection with the testimony, the defendant did not ask for one, and she does not articulate how a third instruction, that jurors alone decide the facts, would have made a material difference in this one-day trial where three witnesses testified. Where the evidence of alcohol intoxication and impairment while operating was overwhelming, and where the judge repeatedly instructed the jury of their sole duty to decide whether the defendant's ability to operate was impaired by alcohol on the night in question, we are not persuaded that admission of Gifford's entire opinion was “sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error.” Miranda, 22 Mass. App. Ct. at 21. See Alphas, 430 Mass. at 15 (error could not have created substantial risk of miscarriage of justice where evidence was overwhelming).

2. Subsequent offender. There is no merit to the defendant's claim that the evidence was insufficient to establish that this was her second OUI conviction. Certified copies of (1) a Board of Probation record for an individual with the same name, date of birth, and social security number as the defendant, who resided at the same address in New Bedford provided by the defendant at trial, reflecting a 2010 OUI conviction in Wareham District Court, and (2) a docket sheet from Wareham District Court showing the same OUI conviction, of an individual with the same name and middle initial as the defendant, with the same date of birth, who resided at an address in Mattapoisett,² provided “prima facie evidence that [the] defendant has been convicted previously.” G. L. c. 90, § 24 (c) (4). The judge did not have to rely on the license, which the defendant now claims was not properly authenticated.

Judgments affirmed.

FOOTNOTES

2.   The defendant acknowledged residing in Mattapoisett to Gifford on June 30, 2015, and again at trial.