COMMONWEALTH v. BURDEN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of one count of driving while under the influence of intoxicating liquor. On appeal, she claims that the judge erred in allowing the Commonwealth's motion in limine to preclude the defendant's expert witness. We affirm.

The defendant claims that in allowing the Commonwealth's motion, the judge denied her the opportunity to present critical and relevant expert testimony at trial. We disagree. Upon review, a judge's decision on the admissibility of expert testimony will be reversed only where there has been an abuse of discretion or error of law.² See Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). Here, the defendant proposed to elicit expert testimony from a witness that the defendant's anxiety disorder impacted her ability to perform the field sobriety tests. In general, expert testimony will be admissible so long as it assists the jury. See Commonwealth v. Little, 453 Mass. 766, 768 (2009). However, an expert witness may not testify where the members of the jury are equally capable of drawing the conclusion sought from the expert witness. Commonwealth v. Ashley, 427 Mass. 620, 624 (1998).

Contrary to the defendant's claim, the judge properly exercised his discretion in excluding the defendant's expert testimony where the defendant failed to demonstrate how the witness would assist the jury in understanding something beyond a layperson's general comprehension. Indeed, the defendant's nervousness was not unusual, as people are typically nervous when being pulled over by a police officer. Moreover, the expert noted that lay persons understand what it feels to be anxious: “Anyone who has ever taken a test of any kind is aware that being too anxious contributes to performance problems and impairs the ability to concentrate or think clearly.” And whereas the expert was not making any diagnosis, she would have primarily discussed the generalized features of mental disorders exhibited by the defendant. In making this determination, the expert reviewed the defendant's medical records and the police audio and video recordings of the defendant's field sobriety tests and booking. However, at trial, the officer on duty testified to the defendant's admission of her own anxiety, and to her behavior on scene and at booking. In that posture, the defendant did not offer evidence showing how the expert would assist the jury beyond what the Commonwealth's witness already established. See Commonwealth v. Francis, 390 Mass. 89, 101 (1983) (no abuse of discretion or error of law in excluding proposed expert testimony where substance was covered by defense counsel's cross-examination and closing argument).

In addition, the defendant failed to demonstrate how the mental conditions reviewed by the expert witness connected to the defendant's performance on the field sobriety test. While the defendant asserts that the witness could testify as a generalized expert in her field, the foundational requirement necessary to testify is that “the witness is qualified as an expert in the relevant area of inquiry.” Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010). Whether an expert who is qualified in one subject is also qualified in another, related subject depends on the circumstances of the individual case. See Commonwealth v. Crouse, 447 Mass. 558, 569 (2006). A judge must enforce boundaries between areas of expertise within which the expert is qualified, and that which requires different training. See Commonwealth v. Frangipane, 433 Mass. 527, 535 (2001). Here, the defendant's witness had education and training on psychological disabilities, mental health evaluations, and short-term individual psychotherapy. However, there was no evidence that she was qualified at that time to give any specific testimony about how anxiety can impact a person's performance on field sobriety tests. In fact, the expert admitted in her report that, “[i]t is not possible to state how much [the defendant's] anxiety contributed to her impairments on the field sobriety tests.”

Even without this expert testimony, however, the defendant retained the opportunity to introduce well-developed evidence on the issue of her anxiety. For instance, the jury could understand that the defendant was clearly emotionally distressed by viewing the recordings of her field sobriety test and booking. Moreover, such evidence would not have explained away the other strong indicia of intoxication. In this case, the officer on scene determined that the defendant was under the influence of alcohol based on his training and experience; “her admission to consuming alcohol that evening; her personal appearance, bloodshot, glossy eyes; her performance of the field sobriety tests, the clues of impairment during the tests ․; and the admission of smoking marijuana.”

Accordingly, the trial judge did not abuse his discretion in excluding the defendant's proposed expert testimony where the witness's report divulged no specialized knowledge that could have assisted the jury in understanding a matter outside the realm of their own experience, and where such evidence could have been included by other means.

Judgment affirmed.

FOOTNOTES

2.   A witness may testify as an expert in a criminal case if five foundational requirements are met: “(1) that the expert testimony will assist the trier of fact ․; (2) that the witness is qualified as an expert in the relevant area of inquiry ․; (3) that the expert's opinion is based on facts or data of a type reasonably relied on by experts to form opinions in the relevant field ․; (4) that the process or theory underlying the opinion is reliable ․; and (5) that the process or theory is applied to the particular facts of the case in a reliable manner.” Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010).