COMMONWEALTH v. BLACKMAN (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury found the defendant, Jonathan Blackman, guilty of operating a motor vehicle under the influence of marijuana, G. L. c. 90, § 24 (1) (a) (1). On appeal, he argues that (1) the trial judge should have allowed his motion for a required finding of not guilty, and (2) the Commonwealth and its witnesses impermissibly referred to “roadside assessments” and “field sobriety tests” interchangeably. We affirm.

Background. A jury could have found the following facts. On May 6, 2018, at approximately 12:30 a.m., a sedan driven by the defendant approached the field sobriety checkpoint operated by State police troopers on Route 57, a public way in Agawam. When the defendant stopped, Sergeant William Scott detected the smell of freshly burnt marijuana emanating from the vehicle. The sergeant asked the defendant if he had smoked marijuana that evening. The defendant replied that he had smoked “half a blunt earlier.” The defendant was then diverted to a secondary review area.

Trooper Robert Berrena, who had already been alerted that the defendant had admitted to smoking marijuana earlier, was stationed in the secondary review area. When the defendant pulled in and lowered his window, the trooper detected a “very overwhelming smell of freshly burnt marijuana” emanating from the vehicle and noticed that the defendant's eyes were glossy and bloodshot. In addition, the defendant's speech and reaction time seemed slower than the norm that the trooper was used to seeing during routine traffic stops. When the trooper asked the defendant whether he had consumed any marijuana earlier in the evening, the defendant said something along the lines of, “I may have dropped someone off earlier that did.” Thereafter, the trooper asked the defendant to step out of his vehicle.

The trooper administered several roadside assessments. The defendant was unable to follow the tip of the trooper's finger and to touch his finger to the trooper's finger. For the nine step walk and turn (WAT), the defendant was unable to maintain the instructional stance, started early, failed to meet the heel-to-toe requirement on three steps when the distance between his feet exceeded one-half inch, and failed to execute a turn in the manner in which he had been shown. Further, the defendant's return to the starting point consisted of ten steps, rather than nine, and the defendant raised his arms over the six-inch maximum. For the one-legged stand (OLS), the defendant missed one number while counting to thirty, only raised his foot approximately three inches off the ground, swayed a bit, and did not keep his hands to his sides. The trooper also asked the defendant to recite the alphabet after confirming with the defendant that he was able to do so. The defendant made three attempts; on the first attempt he made it to the letter L, on the second attempt he made it to the letter P, and on the third attempt he missed the letters U and W. The defendant also was asked to stand straight with his hands by his sides, tilt his head back with his eyes closed, and then reopen his eyes after counting to thirty. The defendant did as he was instructed except he opened his eyes on the count of forty-one.

The defendant was placed into custody. During a search of the defendant, the trooper found “a very small bag of marijuana.” The trooper observed another trooper remove some marijuana from the defendant's vehicle during an inventory search.

The defendant moved for a required finding of not guilty at the close of the Commonwealth's evidence; the motion was denied. The defense did not present any evidence. Thereafter, the defendant renewed his motion for a required finding of not guilty; the motion was denied. The trial judge also denied the defendant's post-trial renewed motion for a required finding of not guilty and, in the alternative, motion for a judgment notwithstanding the verdict.

Discussion. 1. Sufficiency of the evidence. The defendant argues that the trial judge should have allowed his motions for a required finding of not guilty because the evidence failed to establish that the defendant operated a motor vehicle while under the influence of marijuana. We disagree. “To sustain a denial of a directed verdict, there must have been ‘enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt.’ ” Commonwealth v. Torres, 468 Mass. 286, 292 (2014), quoting Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

An OUI (marijuana) conviction requires the Commonwealth “to prove beyond a reasonable doubt that the defendant operated the car under the influence of marijuana, an influence that resulted in the impairment, to any degree, of an individual's ability to safely perform the activity in question” (quotations omitted). Commonwealth v. Smith, 95 Mass. App. Ct. 437, 440 (2019), quoting Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018). “[T]he defendant's performance on roadside assessments is admissible at trial to the extent that [the assessments] are relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle” (quotations omitted). Smith, supra, quoting Commonwealth v. Gerhardt, 477 Mass. 775, 776 (2017). “With respect to the ultimate issue of impairment, triers of fact may use their common sense in evaluating whether the Commonwealth introduced sufficient evidence to satisfy its burden of proof” (quotations omitted). Smith, supra, quoting Gerhardt, supra at 787. However, a conviction requires more than just roadside assessments. Gerhardt, supra at 785, 789 (Appendix).

Here, the sergeant and trooper testified about their observations of the defendant, the smell of freshly burnt marijuana, the defendant's admission of having consumed marijuana “earlier,” and the defendant's performance on the roadside assessments. Moreover, the defendant's changing answers about whether he had consumed marijuana show consciousness of guilt. See Commonwealth v. Vick, 454 Mass. 418, 423-424 (2009). The defendant's possession of marijuana corroborated that he had access to marijuana that evening.

The defendant challenges the significance of the defendant's performance on the roadside assessments.² Similarly, he also contends that the defendant's performance on the assessments disclosed little about the impact marijuana might have had on the defendant. In addition, the defendant contends that when the defendant admitted smoking “half a blunt earlier,” there was no evidence establishing when that might have been, though both troopers testified that the smell of burnt marijuana was fresh. Weighing such evidence is for the jury. See Commonwealth v. Sawyer, 389 Mass. 686, 704 (1983), citing Commonwealth v. Hoffer, 375 Mass. 369, 377 (1978). For purposes of sufficiency, we review the evidence in the light most favorable to the Commonwealth. See Latimore, 378 Mass. at 677-678.³

The evidence was sufficient to support the conviction. Accordingly, the trial judge did not err in denying the defendant's motions for a required finding of not guilty.

2. Reference to field sobriety “tests.” Following Gerhardt, 477 Mass. at 785, officers must testify to the administration of “roadside assessments” in cases involving OUI (marijuana), rather than “field sobriety tests,” applicable in cases involving OUI (alcohol), to avoid suggesting to the trier of fact that the assessments “function as scientific validation of a defendant's sobriety or intoxication” from marijuana consumption. The Commonwealth and defense counsel should similarly refer to “roadside assessments” rather than “field sobriety tests” in their opening statement, questions, and closing argument.

The Commonwealth concedes that its witnesses and the prosecutor mistakenly used the term “test” instead of “roadside assessment” at trial. The prosecutor referred to the “alphabet test” in opening. The defendant did not object and defense counsel used the same phrase in opening. As to the night in question, the next use of “test” came as the sergeant was describing the checkpoint. Gerhardt recognized that “it is not practicable to eliminate the concept of testing entirely from trial testimony.” 477 Mass. at 784. For example, here, the defendant was passing through a “field sobriety testing area” or a “field sobriety checkpoint.” When the first witness used similar terminology and the defendant objected, the judge permitted the use of “test” in this generic sense but cautioned the Commonwealth. The prosecutor and witnesses largely used the phrase “roadside assessment” or something similar and when they did not, the defendant did not object. In cross-examination and closing, defense counsel sometimes referred to “test” or “tests.” When the Commonwealth used “test” in his closing, the defendant did not object. Accordingly, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Alvarez, 480 Mass. 299, 310 n.3 (2018); Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160 (2010).

On this record, we cannot say that there was a substantial risk of a miscarriage of justice. The defendant admitted to having consumed marijuana earlier, the smell of freshly burnt marijuana was emanating from the vehicle, the defendant could not successfully recite the alphabet, and had other performance issues during the roadside assessments.

It is true that the jury also referred to “tests” when they asked a question about the evidence they could rely on to make their decision. After the question was submitted, the judge brought the jury into the courtroom and asked the jury to confirm that their question was: “Can we use the field sobriety tests as the basis of a decision for the use of determining impairment?” The foreperson responded, “it's comparing alcohol to marijuana.” The trial judge then reread the jury the following instruction:

“[R]oadside assessments are not scientific tests of impairment by marijuana. A person may have difficulty performing these tasks for many reasons unrelated to the consumption of marijuana. It is for you, the jury, to decide if the defendant's performance on these roadside assessments indicate that his ability to operate a motor vehicle safely was impaired by marijuana.”

These instructions were consistent with the model jury instructions in effect at the time of trial, and we presume that the jury followed them. See Commonwealth v. Silva, 482 Mass. 275, 290 (2019) (jurors presumed to follow judge's instructions). See also Instruction 5.400 of the Criminal Model Jury Instructions for Use in the District Court (2019).

Judgment affirmed.

FOOTNOTES

2.   For example, the defendant challenges the significance of the defendant's failure to touch his heel to his toe in the WAT, the defendant's raising his foot only three inches during the OLS and, and his failure to correctly recite the alphabet after three tries. The defendant also notes that the trooper could not articulate what was improper about how the defendant turned during the WAT.

3.   The defendant's reference to a juror's post-verdict letter expressing concern about the sufficiency of the evidence does not change this analysis. Moreover, once the juror affirms or acquiesces in the verdict as announced in open court, then “neither a juror's change of heart nor a juror's subsequent disclosure of a subjective disagreement with [their] apparent vote provides a basis for vacating the verdict.” Commonwealth v. Dias, 419 Mass. 698, 703 (1995).