Opinion
20-P-536
06-30-2021
COMMONWEALTH v. Ernest J. BOBILIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of operating a motor vehicle under the influence of intoxicating liquor (OUI). The defendant then entered a guilty plea to having been convicted of OUI on four or more prior occasions. On the defendant's appeal of the underlying conviction, we affirm.
The Commonwealth filed a nolle prosequi of a separate habitual offender indictment.
1. Opinion testimony. Orange police officer Christopher Bisceglia stopped the defendant's vehicle after a near collision between their vehicles. At trial, Officer Bisceglia testified, based on his observations, that his "opinion was that [the defendant] was under the influence of alcohol." The defendant, who lodged a contemporaneous objection, argues that this improperly commented directly on his guilt. See Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012) (in OUI cases, "lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating under the influence, but they may testify to his apparent intoxication"). See also Commonwealth v. Canty, 466 Mass. 535, 540-544 (2013) (expounding on proper versus improper testimony in OUI cases).
Given that it was uncontested that the defendant was operating a motor vehicle directly before the officer made the observations that caused him to conclude that the defendant was under the influence, Officer Bisceglia's precise phrasing arguably came close to the forbidden territory of commenting on the ultimate question of whether the defendant was operating a motor vehicle under the influence. At the same time, it is not impermissible for a lay witness to offer a statement that someone appeared intoxicated, and it is difficult to articulate how a jury might draw a distinction between such an opinion and one that the defendant appeared to be under the influence of alcohol. See Canty, 466 Mass. at 544 ("a witness offering an opinion regarding sobriety is [not] limited to the use of particular words"). Finally, Officer Bisceglia did not make his comment about the defendant being under the influence in specific reference to operating a motor vehicle; nor did he opine that the defendant's ability to operate his car was impaired. See id. at 544 (testimony that defendant's "ability to drive was diminished" was impermissible).
In the end, we need not decide whether the judge erred in allowing Officer Bisceglia's opinion testimony to stand in its precise form, because the defendant in any event has not shown sufficient prejudice to warrant reversal. See id. at 545 (affirming OUI conviction even though judge erred in allowing officer to comment on ultimate question and even though error was preserved). The evidence of the defendant's intoxication and impairment was extremely strong, and the officer permissibly could have conveyed the same opinion using other terms such as "intoxicated." See id. at 542-543. Moreover, immediately after Officer Bisceglia testified, the judge implored the jury that it was their exclusive role to decide whether the defendant was under the influence of alcohol. That instruction, at a minimum, substantially mitigated any concern that the jury might unduly be swayed by the officer's choice of words. See id. at 540-545. In these circumstances, we confidently can say that even if the opinion testimony should not have been allowed in its precise form, "any error ‘did not influence the jury, or had but very slight effect.’ " Commonwealth v. Dargon, 457 Mass. 387, 399 (2010), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
That evidence included the following: the defendant was unsteady on his feet, he had bloodshot and glassy eyes, he reeked of alcohol, he exhibited erratic behavior (such as trying to hand the officer his entire wallet), he drove in an unsafe manner, he had an open beer can in his car, he admitted to drinking "two beers," he made statements that could be interpreted as consciousness of guilt, and he was unable successfully to complete field sobriety tests.
2. Conduct during the "follow the finger" test. Officer Bisceglia administered several recognized field tests to try to assess whether the defendant was intoxicated. These included the test formally known as the "horizontal gaze nystagmus" (HGN) test, in which a person's eyeballs are observed as they follow the moving finger of the person administering the test. See Commonwealth v. Sands, 424 Mass. 184, 186-187 (1997) (describing HGN test and its scientific basis). The test is designed to measure nystagmus, a pattern "characterized by an unsteady, bouncing movement" of the eyeballs. Id. at 186. Because of the scientific nature of the test, the Supreme Judicial Court has held that before evidence is admitted that a defendant exhibited nystagmus, "there must be an evidentiary foundation in satisfaction of the Lanigan standard [and] there must be a determination as to the qualification of the individual administering the HGN test and the appropriate procedure to be followed if the HGN test results are to be admitted at trial." Sands, 424 Mass. at 188. Based on Sands, and on the absence of any showing that Officer Bisceglia had received the requisite training, the defendant moved in limine to exclude evidence about the HGN test. The judge granted that motion with the qualification that Officer Bisceglia would be allowed to testify that the defendant could not follow simple instructions associated with the test, such as keeping his head still and following the moving finger only with his eyes. The testimony that followed adhered to the judge's ruling.
See Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994).
On appeal, the defendant asserts that the judge's ruling allowed in "backdoor" HGN testimony in violation of Sands. We are unpersuaded. The judge properly excluded evidence that the defendant had exhibited nystagmus or, for that matter, any mention of the science-based portions of the test. The testimony that the judge allowed regarding the defendant's failure to follow instructions was no different in kind than similar evidence about following instructions with respect to the other field sobriety tests. Sands itself recognizes that evidence of a defendant's ability to follow simple instructions is admissible without expert testimony because a "lay juror understands that intoxication leads to diminished balance, coordination, and mental acuity from common experience and knowledge." Sands, 424 Mass. at 188.
3. Police familiarity with the defendant. Officer Bisceglia was familiar with the defendant, and such familiarity was relevant to the officer's ability to detect signs of impairment in him. Prior to trial, the defendant expressed concern that testimony about such familiarity could suggest past criminality. In response, the judge ruled that the prosecutor could "ask in a limited regard as to the officer's familiarity with [the defendant]," and that the officer's corresponding ability to detect changes in the defendant's speech and gait was "fair game."
Officer Bisceglia's subsequent testimony about his familiarity with the defendant adhered to the judge's ruling, and it did not draw any objections from the defendant. Specifically, Bisceglia acknowledged that he was "familiar" with the defendant "from working in a fairly small town like Orange," that he had "interacted" with the defendant "multiple times," that he had observed the defendant walking in an area that was the officer's "normal route of patrol," that he sometimes interacted with the defendant "on calls," and that he had seen the defendant on multiple past occasions when he was not slurring his words, smelling of alcohol, or unsteady on his feet. The defendant contends that the officer's reference to seeing him "on calls" constituted "back-door prior-bad-act testimony."
Because we discern no error, we need not decide whether the defendant's informally raising his concerns amounted to an oral motion in limine sufficient to preserve the issue on appeal.
The defendant also argued in his brief that "to properly cross examine the witness and explore ... the basis of his familiarity, the [d]efendant would necessarily risk bringing to light that the officer had not merely observed the [d]efendant innocently walking in public, but had also interacted with the [d]efendant on calls," and thus, he was faced with a choice "between the rock and the whirlpool." At oral argument, defendant's counsel stated that "he had no problem" with the officer's testimony about seeing the defendant while on ordinary patrols. Given that concession, we do not see that defense counsel was in the difficult position as claimed. Defense counsel was free at trial to carefully cross-examine the officer about his observations of the defendant during ordinary patrols without serious risk of accidentally eliciting information relating to their prior interactions on calls.
Any inference from such testimony that Officer Bisceglia knew the defendant from having arrested, or even investigated, him for past criminal offenses amounted to sheer speculation. That being the case, the judge did not abuse his discretion in allowing such testimony. See Commonwealth v. Leach, 73 Mass. App. Ct. 758, 768 (2009) (testimony that detective was familiar with defendants' voices because he had "engaged them several times during the normal courses [sic] of [his] duty ... when [he] was a school police officer" did not "suggest[ ], improperly, that [the defendants] had committed prior bad acts").
Judgment affirmed.