COMMONWEALTH v. COOKE (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor (OUI). On appeal, the defendant argues that the absence of particular jury instructions requires reversal of his conviction. We disagree and therefore affirm.

During the late morning of June 4, 2018, the defendant was driving his car in Quincy when he ran into the car in front of him at an intersection. A responding patrol officer noticed that the defendant smelled of alcohol and was slurring his speech. The defendant acknowledged that he had been drinking alcohol the night before and had been up all night. He cooperated with taking field sobriety tests, but performed poorly on them. For example, he twice attempted the one-legged stand test and lost his balance each time (once after only three seconds). After concluding that the defendant was “under the influence of an alcoholic beverage,” the patrol officer -- who was the Commonwealth's only witness -- placed him under arrest.

The judge properly instructed the jury regarding the elements the Commonwealth had to prove, beyond a reasonable doubt, in order to establish a conviction for OUI. She also instructed the jury that it was their role to “determine whether to believe the witness and how much weight to give his testimony,” and that they “may believe everything a witness says or only part of it, or none of it.” The defendant did not request any additional instructions regarding the jury's role in evaluating evidence, and, at the conclusion of the instructions that were given, defense counsel declared himself “content.”²

The defendant now claims reversible error in the judge's failure, sua sponte, to give two additional instructions set forth as supplements to Instruction 5.310 of the Criminal Model Jury Instructions for Use in the District Court (2019). Those instructions address the jury's role in deciding whether to credit two specific kinds of evidence: opinion evidence and evidence of how a defendant performed on field sobriety tests.

A trial judge has substantial “discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.” Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002). In evaluating the correctness of the instructions that were given, we assess the instructions “as a whole.” Commonwealth v. Vargas, 475 Mass. 338, 349 (2016), quoting Commonwealth v. Young, 461 Mass. 198, 207 (2012).

The supplemental model instructions on which the defendant now relies largely would have just repeated the general admonition that the jury was given about how it was their role to decide whether to credit the evidence they heard. This being the case, we are unpersuaded that the judge erred by not sua sponte providing further elaboration of this principle in the specific context of opinion or field sobriety test evidence. For the same reason, even were we to conclude that the judge should have provided such instructions, we would conclude that such an error did not cause a substantial risk of a miscarriage of justice. In this regard, we note that, while we agree with the defendant that the Commonwealth's evidence was not “overwhelming,” neither was it particularly thin. Moreover, defense counsel conducted a vigorous and lengthy cross-examination of the Commonwealth's sole witness, thus providing the jury a fully informed basis for deciding whether to credit his testimony.

Judgment affirmed.

FOOTNOTES

2.   Because the defendant did not preserve his claim, our review is limited to determining whether there was an error that caused a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).