COMMONWEALTH v. SNOW (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Michelle Snow, was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI) following a jury trial in District Court. On appeal, the defendant claims errors in the arresting officer's opinion testimony, the prosecutor's opening statement and closing argument, and the jury instructions. We affirm.

Opinion testimony and prosecutor's statements. The defendant contends that North Adams Police Officer Nicholas Felix impermissibly testified that in his opinion the defendant was “impaired” or exhibited indications of “impairment.” “In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to [her] apparent intoxication.” Commonwealth v. Canty, 466 Mass. 535, 541 (2013), quoting Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). Because the defendant did not object to Felix's testimony or to any of the prosecutor's statements, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013). We conclude that the testimony viewed in its totality was improper, but that the error did not create a substantial risk of a miscarriage of justice.

In her opening statement, the prosecutor told the jury that Officer Felix would give them “his opinion of whether, or not, [the defendant] was under the influence of alcohol that evening.” Almost as soon as Felix took the stand, the prosecutor asked whether he had “any specific training for investigating operating under the influence?” (emphasis added), and Felix answered that he did. The prosecutor followed up by asking about the techniques Felix used to detect “drunk drivers.” He replied that he was “trained in observing operation of vehicles” and “in observations ․ that may indicate, if somebody is impaired by means of alcohol.” When the prosecutor then turned the questioning to Felix's observations and opinions of the defendant, he testified on several occasions about the defendant's level of “impairment,” twice referring to his previously discussed “training.”² In her closing argument, the prosecutor referred to Felix's training to identify “people who had too much to drink, who had their ability to safely operate a vehicle impaired by alcohol.”

Felix's language viewed in isolation might be considered proper opinion testimony about whether the defendant was “under the influence of alcohol.” Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389 (2017). See Canty, 466 Mass. at 544 (no error in allowing officer to testify that defendant was “probably impaired” in response to question asking whether he had opinion as to defendant's sobriety). However, when combined with the earlier testimony about his training to investigate “operating under the influence” and “drunk drivers,” and the prosecutor's characterization of his testimony in her opening statement and closing argument, the testimony about the defendant's “impairment” crossed the line into improper opinion testimony that the defendant “was impaired to operate a motor vehicle.” Gallagher, supra at 389.³

Nevertheless, the testimony did not create a substantial risk of a miscarriage of justice. See Gallagher, 91 Mass. App. Ct. at 390-391 (holding that similar testimony, to which defendant timely objected, did not warrant reversal under stricter prejudicial error standard). As an initial matter, “the prejudice flowing from [Felix's] opinion would be relatively modest given what must have been obvious to the jury, i.e., that the arresting [officer] believed that the defendant's ability to operate her car was impaired by alcohol consumption.” Id. at 390-391.⁴ In addition, as in Gallagher, the judge specifically instructed the jury that they had “heard testimony ․ from Officer Felix ․ in the form of an opinion, his opinion regarding the defendant's sobriety”; that they may consider opinion evidence “and accept it, or reject it”; and that they “alone must decide whether the defendant was under the influence of intoxicating liquor.” See id. at 390.

Furthermore, the evidence -- apart from Officer Felix's improper testimony -- that the defendant's intoxication impaired her ability to operate a motor vehicle was compelling. The defendant drank three vodka drinks before driving; she crashed into another vehicle stopped at a red light; her vehicle smelled of alcohol; she had slurred and slow speech; and she had difficulty performing the nine-step-walk-and-turn and one-leg stand tests. Even considering the defendant's consumption of “totchos” and French onion soup, we do not seriously doubt that the jury would have found the defendant guilty of OUI even without Felix's improper testimony and the prosecutor's references to it. See Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).⁵

Instruction on absence of breathalyzer evidence. During the initial jury charge, as required by Commonwealth v. Wolfe, 478 Mass. 142, 149-151 (2017), the judge asked defense counsel if she wanted him to give a so-called “Downs instruction,” see Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001), directing the jury to disregard the absence of breathalyzer evidence. She did not, and the judge accordingly did not give it. During deliberations, however, the jury asked the following question: “Breathalyzer? Did she refuse? What is the legal limit?” Outside the jury's presence, the judge asked defense counsel whether she wanted him to respond with a Downs instruction or with a more general instruction simply reiterating that the jurors were to consider only the evidence before them. Defense counsel said a Downs instruction “would be fine” and agreed with the judge's subsequent comment that “it's probably helpful.”

Relying on a footnote, see Wolfe, 478 Mass. at 150 n.13 (“when a jury ask a question about the absence of alcohol-test evidence, ․ we think it is the better practice to simply reiterate the general instruction not to speculate about matters not in evidence”), the defendant argues that the judge ran afoul of Wolfe by giving a Downs instruction when defense counsel did not “affirmatively request” one. We disagree. Wolfe does not prohibit a trial judge from having a discussion with defense counsel about whether to give the Downs instruction, and nothing in the way the judge handled the matter was coercive. Wolfe holds that “a defendant should be able to elect whether the jury are instructed about the absence of alcohol-test evidence.” Id. at 149. That is exactly what happened here. There was no error.

Judgment affirmed.

FOOTNOTES

2.   For example, he testified that the defendant's performance on the nine-step-walk-and-turn test and other prior observations contained “validated clues” based on his “training,” which indicated “that she was likely impaired by means of alcoholic beverage.”

3.   Felix's lay testimony was improperly framed in terms that the jurors might have “misunderstood ․ as testimony based on scientific, technical, or other specialized knowledge.” Gallagher, 91 Mass. App. Ct. at 399 (Agnes, J., dissenting).

4.   Similarly, the prosecutor's comment that not all of Felix's OUI investigations resulted in arrests, “but this one did,” while improperly suggesting that the fact of the defendant's arrest was indicative of her guilt, did not tell the jury anything they did not already know.

5.   Nor do we discern any impropriety in the prosecutor's statements in summation that the defendant had traveled “over state lines” to go out for drinks without making plans to get a ride home or that “[s]he was slurring her words.” Both comments were based on the evidence and the fair inferences that could be drawn from it, and the “state lines” comment did not invite the jury to draw an adverse inference against out-of-State drivers or burden the defendant's right to travel.