COMMONWEALTH v. MICHAEL BARRETT (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the District Court, a jury convicted the defendant, Michael C. Barrett, of operating a motor vehicle while under the influence of drugs (OUI) and negligent operation of a motor vehicle.¹ After a bench trial, a judge found the defendant guilty of OUI, second offense. The defendant appeals, claiming that the judge erred by admitting evidence that “Narcan” -- an over-the-counter medication administered to treat opioid overdoses -- was found in the defendant's vehicle during an inventory search. We conclude that the evidence was admitted in error but that the error was nonprejudicial. Accordingly, we affirm.

Background. The jury could have found the following facts. On October 1, 2020, at approximately 3:00 P.M., a witness called 911 and reported a vehicle on Route 1 that swerved from one side of the road to the other, hit a guardrail on the right side of the highway, and then swerved and collided with the highway's median, coming to a complete stop. The witness parked and approached the stopped vehicle and saw the defendant in the driver's seat. The witness asked the defendant if he needed assistance, but the defendant “couldn't even say anything,” he was mumbling, with his head down and mouth open.

Massachusetts State police troopers were dispatched to the scene. The defendant was unable to respond to questions and was “passed out.” He was “slumped over the [steering] wheel” of the vehicle, with his eyes closed and mouth open. The troopers shook him multiple times before he woke up. State Trooper Carlo Mastromattei (Mastromattei) entered the vehicle from the passenger's side, shifted it into park, and removed the keys from the ignition. The defendant did not emit an odor of alcohol.

The defendant required the help of firefighters, Emergency Medical Service, and the troopers to remove him from his vehicle. The defendant appeared awake but was unsteady on his feet, and the firefighters had to hold the defendant as he spoke with them. As he began to answer questions, the defendant told the firefighters that “he didn't want to go to jail,” and that “he wanted to talk to them off the record.” The defendant was compliant initially, but his demeanor changed to holding his fists clenched, including toward the firefighters, and then the defendant's behavior again “changed from being aggressive to being compliant.”

The defendant was transferred to a hospital via ambulance. Prior to towing the defendant's vehicle, troopers inventoried it and found Narcan in the center console.² Mastromattei went to the emergency room where the defendant was being evaluated and overheard the defendant tell a nurse that he had smoked marijuana and “angel dust.”

After being released from the hospital, the defendant called Mastromattei to inquire about where his vehicle had been towed. Mastromattei asked the defendant when he had smoked angel dust, to which the defendant responded that he had smoked angel dust “around dinnertime the day before.” At trial, the Commonwealth called a drug recognition expert (DRE) who testified about the common behavioral indicators of using “angel dust” -- i.e., phencyclidine or “PCP” -- and the effects of using marijuana and PCP together. The defendant cross-examined the DRE about the uses and purposes of Narcan.

Discussion. The defendant argues on appeal that the judge erred by admitting the evidence of the Narcan discovered in the defendant's vehicle in the aftermath of the crash. Specifically, the defendant contends that the Narcan had no probative value and therefore was unduly prejudicial. We agree that the Narcan had no probative value but conclude that the defendant suffered no prejudice.

1. Probative value. Whether evidence is relevant, and whether its probative value is outweighed by its prejudicial effect, “are questions within the sound discretion of the judge.” Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). A judge abuses his or her discretion only “where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

“Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action.” Mass. G. Evid. § 401 (2023). The threshold for determining whether evidence is relevant is a low one, as the evidence “need not establish directly the proposition sought; it must only provide a link in the chain of proof.” Commonwealth v. Gerhardt, 477 Mass. 775, 782 (2017), quoting Commonwealth v. Sicari, 434 Mass. 732, 750 (2001).

The Commonwealth's theory of the case was that the defendant operated his vehicle while impaired by PCP and marijuana, as demonstrated by (1) the troopers’ and the witness's observations in the aftermath of the collision, and (2) the defendant's statements to the nurse and Mastromattei corroborating his use of PCP and marijuana prior to the crash.

Narcan is a legal, over-the-counter medication used to “reverse the effects of opioids.” At trial, the Commonwealth introduced no evidence that connected the Narcan to PCP or marijuana, or that connected the Narcan's presence in the defendant's vehicle to his impairment. The direct testimony of the Commonwealth's DRE pertained only to common behavioral indicators of PCP and marijuana use. In response to defense counsel's cross-examination regarding Narcan's ineffectiveness in treating PCP and marijuana overdose, the DRE testified that Narcan is solely used for opioid overdoses and that Narcan would not be effective on “adverse effects” from marijuana or PCP use. Where the Commonwealth introduced no evidence of opioid use by the defendant, nor made any connection between the Narcan and the drugs alleged to have been used by the defendant, the presence of Narcan in the defendant's vehicle was not probative of whether the defendant was under the influence of drugs at the time of operation. On the contrary, the Narcan evidence served the impermissible purpose of showing the defendant's history of drug use and therefore was improperly admitted.³ See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014) (“Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged”)

2. Prejudice. Because the defendant objected to the introduction of the evidence of Narcan, both by a motion in limine and again on Mastromattei's testimony, we review the judge's ruling for prejudice. See Commonwealth v. Correia, 492 Mass. 220, 232 (2023). “An error is not prejudicial if it ‘did not influence the jury, or had but very slight effect’; however, if we cannot find ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,’ then it is prejudicial.” Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). In determining whether the error was prejudicial, we may consider,

“[1] the frequency of the improper references; [2] whether the error was central to the trial; [3] the strength of the Commonwealth's case; [4] whether limiting instructions mitigated the error; and [5] whether the jury were able to sort between the permissible and impermissible evidence such that the defendant was not prejudiced by the error.”

Correia, 492 Mass. at 232.

Applying these factors, we conclude that the error did not prejudice the defendant. The evidence of Narcan was not central to the Commonwealth's case. Narcan was mentioned only three times over the course of the trial: first, during Mastromattei's testimony when he recounted the steps of his investigation; second, on cross-examination of the DRE, when defense counsel elicited testimony regarding Narcan's ineffectiveness in treating the effects of marijuana and PCP use; and third, during the Commonwealth's closing argument where Narcan was referenced in only four lines of ten pages of transcript.

Moreover, the Commonwealth's case against the defendant, notwithstanding the evidence of Narcan, was strong. The Commonwealth presented uncontroverted evidence that the defendant swerved between lanes, hit the highway's guardrail, and then collided with the median before coming to a stop. The defendant's general disorientation in the aftermath of the collision was consistent with impairment by PCP and marijuana, as described by the DRE. The DRE testified that “angel dust” -the phrase used by the defendant in his phone call to Mastromattei -- refers to PCP, a dissociative anesthetic. He explained that common indicators of PCP use include “confusion, disorientation that's sometimes punctuated with sort of a blank stare” and that PCP use affects one's speech, ranging from “slow, slurred speech to incomplete verbal responses to questions, or even somebody could be completely non-communicative at all.” The DRE further testified that PCP use affects mood, causing “cyclic behavior,” consistent with the defendant going from “conversational and compliant” to “increasingly agitated.” See Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219 (2006) (jury may infer impairment by intoxicating substance from “the manner in which the accident occurred, and the defendant's conduct ․ immediately after the collision”). See also Commonwealth v. AdonSoto, 475 Mass. 497, 510 (2016). Finally, the defendant told the nurse that he had smoked marijuana and PCP and later confirmed to Mastromattei that he had smoked PCP the day prior to his arrest.

We disagree with the defendant's contention that the judge's sua sponte instructions exacerbated the error. Contemporaneous with Mastromattei's testimony that he discovered the Narcan in the defendant's vehicle, the judge instructed the jury, sua sponte, that,

“The defendant is not charged with any offense of being in possession of Narcan. Narcan is an over-the-counter medication that is readily available. You've heard other evidence from the witness, and you can consider that evidence in total, in part, or none of it. That's totally up to you. I just didn't want the jury to be confused that the defendant is being charged with anything that involves the possession of the Narcan or that the Narcan is one of the elements of the offense that the government must prove beyond a reasonable doubt.”

This instruction, to which the defendant did not object at trial, clarified for the jury that the defendant was not charged with possession of Narcan and that the Narcan was not an element of the offense with which he was charged. We discern no substantial risk of a miscarriage of justice based on this instruction. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (where “the defendant did not object to the jury instructions, [the appellate court] must determine whether the error,” if any, “created a substantial risk of a miscarriage of justice”). If anything, the judge's instruction mitigated the prejudicial impact of the Narcan evidence.

On this record, we think that the jury could sort between the properly admitted evidence of the defendant's drug impairment and the brief improper references to Narcan, which defense counsel effectively minimized in his cross-examination of the expert. See Correia, 492 Mass. at 233 (improperly admitted rap lyrics were not prejudicial where defendant's testimony blunted their prejudicial impact); Commonwealth v. Mason, 485 Mass. 520, 535 (2020) (improperly admitted evidence of defendant's decision to consult attorney was not prejudicial where cross-examination mitigated their prejudice). We therefore conclude that the evidence of Narcan found in the vehicle did not influence the jury, or had but very slight effect on their verdict, and therefore the defendant was not prejudiced by its admission. See Cruz, 455 Mass. at 591.

Judgments affirmed.

FOOTNOTES

1.   The judge found the defendant responsible for a marked lanes violation.

2.   At trial, Mastromattei described Narcan as “basically, ․ a nasal spray that you use to -- [i]f someone overdoses, you just spray it in their nose, and hopefully, they'll come out of the overdose.”

3.   Although the prosecutor used the Narcan evidence for propensity purposes during his closing argument, the reference was passing, and defendant did not object. For reasons we discuss in more detail herein, we discern no substantial risk of a miscarriage of justice from the prosecutor's argument. See Commonwealth v. Kapaia, 490 Mass. 787, 805 (2022) (no substantial risk of miscarriage of justice where [1] defense counsel did not object to improper statement, [2] improper statement occurred once in thirteen-page closing argument, and [3] judge instructed jury that closing arguments are not evidence).