COMMONWEALTH v. THIBEAULT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of operating under the influence of intoxicating liquor (OUI) and negligent operation of a motor vehicle. On appeal, he contends that the police officer who arrested him improperly testified that his ability to operate a motor vehicle was impaired by the consumption of alcohol and that the prosecutor exceeded the bounds of proper argument by referring to facts not in evidence during his closing argument. We affirm.

Background. The jury could have found the following facts. On January 18, 2015, at approximately 7:30 p.m., Oakham Police Officer Zachary Marderosian responded to a report of a motor vehicle accident at the intersection of Worcester and Coldbrook roads. When he arrived, he saw the defendant's truck on top of the guardrail and another car with front-end damage nearby. The defendant and the occupants of the other car were standing by the vehicles. Officer Marderosian spoke with the defendant and noticed that the defendant's eyes were bloodshot and glassy, and he detected a strong odor of alcohol. In addition, the defendant's speech was slow. In response to the officer's questions, the defendant explained that he had been blinded by the headlights of the other car. He also admitted that he had had two beers about four hours earlier.

Officer Marderosian then asked the defendant to perform two field sobriety tests. Although the defendant had undergone numerous back surgeries and had returned to his truck to retrieve his cane before the tests began, he did not use the cane; nor did he say that he was unable to perform the tests due to any physical limitations. Officer Marderosian first administered the “walk and turn” test, asking the defendant to keep his arms by his side, take nine steps in a straight line touching heel to toe while counting each step out loud, turn, and proceed back, again walking heel to toe. The defendant was unsteady on his feet as Officer Marderosian gave these instructions. While performing the test, the defendant missed three steps and kept his arms up for balance the entire time. Officer Marderosian also asked the defendant to perform a “one-leg stand” test, instructing him to lift one leg approximately six inches off the ground and count from one to thirty with his arms at his sides. During the course of this test, the defendant raised his leg for five seconds, but then put his foot down. When Officer Marderosian instructed him to try again, the defendant did the same. At this point, the defendant said that his back was bothering him. Officer Marderosian observed that while the defendant was attempting this test, he was unsteady on his feet and held his arms up for balance the entire time. Officer Marderosian concluded that the defendant was intoxicated, and arrested him.

The defendant testified at trial and admitted to drinking beer earlier in the evening. He also said that he had taken medication, including oxycodone that morning. According to the defendant, the accident was caused by the failure of the driver of the other car to turn off the high beam headlights. The defendant testified that, due to the bright lights, the other car appeared to be in his lane, and that he attempted to avoid it, but lost control of his car when he hit black ice, causing the collision.

Discussion. 1. Opinion testimony regarding sobriety. During his direct examination of Officer Marderosian, the prosecutor asked, “What was your opinion as to [the defendant's] intoxication?” Officer Marderosian answered, “That he was not safe[ ] to operate a motor vehicle.” There was no objection and, later, trial counsel elicited similar testimony during cross-examination. Trial counsel asked Officer Marderosian whether he “came to the conclusion that [the defendant] was not safe to drive, he was impaired, after you saw him perform the field sobriety tests,” and Officer Marderosian answered, “Correct.”

Relying on Commonwealth v. Canty, 466 Mass. 535, 541 (2013), the defendant now contends that Officer Marderosian's testimony constituted improper opinion testimony and created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). It is well settled that an opinion regarding a defendant's sobriety is a lay opinion and as such is admissible. See Canty, 466 Mass. at 540-541. However, while lay witnesses, including police officers, may testify to a defendant's apparent intoxication, they may not opine as to whether consumption of alcohol diminished the defendant's ability to operate a vehicle safely or to the ultimate question whether the defendant was operating a motor vehicle while under the influence of alcohol. Id. at 542-543. The defendant argues that Officer Marderosian testified to more than his observations regarding the defendant's intoxication and that by stating the defendant was not “safe to drive,” he was, in fact, offering his opinion that the defendant's ability to drive was diminished by his consumption of alcohol.

We agree with the defendant that Officer Marderosian's testimony could be construed by the jury as an indication that the officer believed that the defendant's ability to drive was impaired due to the consumption of alcohol. However, given the judge's explicit instruction to the jury that they were the sole and exclusive judges of the facts and that it was their prerogative to determine whether the Commonwealth had proved its case beyond a reasonable doubt,² and in light of the overwhelming evidence that the defendant's ability to operate an automobile safely had been diminished by his consumption of alcohol, the error did not create a substantial risk of a miscarriage of justice.

Nor does the error require us to reverse the defendant's conviction of negligent operation of a motor vehicle. The Commonwealth's evidence as to this charge was similarly overwhelming. It suffices to note that the jury could have concluded from the testimony at trial that the defendant, due to his intoxication, swerved out of his lane, collided head-on with another vehicle, and struck a guardrail. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006); Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004).

2. The prosecutor's closing argument. The defendant argues that, during his closing argument, the prosecutor misstated the evidence when he said that the defendant “was slurring his speech.” The defendant is correct. Officer Marderosian testified only that the defendant's speech was “slow.” Because trial counsel did not object at the time, the defendant must show that the error created a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13. This he cannot do. To begin with, the judge instructed the jury that closing arguments were not evidence. The jury are presumed to follow these instructions and to “understand the argumentative, not factual, nature of closing arguments.” Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013). Viewing the challenged statements in the context of all the evidence, the judge's instructions to the jury, and the strength of the Commonwealth's case, there was no error. See Commonwealth v. Imbert, 479 Mass. 575, 586-587 (2018).

Judgments affirmed.

FOOTNOTES

2.   The full instruction was as follows:“You are the sole and exclusive judges of the facts. You alone determine what evidence to believe, how important any evidence is that you believe, and what conclusions all the believable evidence leads you to. You will have to consider and weigh the testimony of all witnesses who appear before you, and you alone will determine whether to believe any witnesses and the extent to which you believe any witness ․ Ultimately, you must determine whether or not the Commonwealth has proved these charges beyond a reasonable doubt.”