Opinion
19-P-531
05-05-2020
COMMONWEALTH v. THINH B. HOANG.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Thinh B. Hoang, was convicted of operating a motor vehicle under the influence of intoxicating liquor (OUI). He appeals, claiming that the arresting police officer improperly opined as to whether the defendant's intoxication impaired his ability to operate a motor vehicle and that the prosecutor exceeded the bounds of proper argument by referring to facts not in evidence during his closing remarks. We affirm.
The defendant was found responsible for failure to stop or yield and a motor vehicle lights violation.
Background. The jury could have found the following facts. On March 16, 2017, at approximately 2:00 A.M., Chelsea Police Officer Paul McCarthy was monitoring traffic when he saw a car with its headlights off go through a stop sign without slowing down or braking. The defendant was the driver of the car. McCarthy activated his emergency lights, and the defendant stopped directly in a turning lane on a one-way street. As the defendant rolled down his window, McCarthy detected a "very strong" odor of alcohol coming from the car and the defendant's breath. The defendant's eyes were blood shot, and his speech was slurred. The defendant dropped his wallet and "fumbled around with it." He had difficulty taking his driver's license out of his wallet and holding on to it. As he tried to retrieve the car's registration, the defendant dropped a stack of papers from the glove box onto the floor. He denied having a medical condition that would have explained the trouble he had performing these tasks.
The defendant's first language is Vietnamese, but he was able to respond to McCarthy's instructions in English "fluently." When asked if he had been drinking, the defendant responded that he had had "one drink." He agreed to step out of the car to perform "further testing"; McCarthy asked the defendant to perform two field sobriety tests, the finger-to-nose test and the heel-to-toe test. For the most part, the defendant followed McCarthy's instructions "without question or any delay." The defendant never indicated that he did not understand McCarthy. Indeed, after the finger-to-nose test, the defendant, in English, asked McCarthy to administer the "walk-the-line test," referring to the heel-to-toe test.
When the defendant initially stepped from the car, he was unsteady on his feet and placed his hand on the side of the car for balance as he walked toward the rear of the car. The defendant started the first test despite being instructed to wait for McCarthy to finish explaining the process. The defendant weaved back and forth while attempting to perform the finger-to-nose test. He missed touching his nose on every occasion. Then, he attempted the heel-to-toe test and did not maintain a straight line, veering one foot off the line on two of the six steps. He held his arms out for balance, despite being instructed to keep them at his sides. Ultimately, he was unable to complete any of the field sobriety tests despite multiple attempts. Based on his training and experience, and his observations of the defendant, McCarthy believed that the defendant was intoxicated and placed him under arrest.
A passenger in the defendant's car was taken into protective custody because he was highly intoxicated.
The defendant testified and admitted to drinking beer earlier in the evening. He denied having trouble producing his wallet, license, and registration. He said he did not understand McCarthy's instructions, and that he never learned to speak English fluently. The defendant testified that he used his girlfriend's car that night, unaware of "burnt-out" headlight bulbs, because he did not own a car and needed to pick up a friend from a party.
Discussion 1. Police officer's testimony. The defendant contends that it was error to permit McCarthy to testify that the defendant was intoxicated. Because the defendant did not object to this testimony at trial, we review to determine, if error, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
When a defendant is charged with OUI, the police officer's observations as to the defendant's sobriety at the pertinent time are admissible. See Commonwealth v. Gerhardt, 477 Mass. 775, 785-786 (2017). And, as long as the testimony "does not directly offer an opinion regarding the defendant's guilt or innocence[,] . . . an opinion that touches on an ultimate issue" is admissible (citation omitted). Commonwealth v. Canty, 466 Mass. 535, 543 (2013). The defendant's argument that McCarthy gave an improper opinion on the ultimate issue is belied by the record. McCarthy testified to his observations regarding intoxication and did not opine as to the defendant's guilt or ability to drive due to alcohol consumption. He did not testify to the ultimate issue. See Commonwealth v. Daniel, 464 Mass. 746, 756 (2013) (describing ultimate issue in OUI). Nor did he testify as an expert. McCarthy described his training and experience and his observations of the defendant, including during the field sobriety tests, all of which is lay testimony. See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 774 n.1 (2013) ("The testimony of a police officer about the results of ordinary field sobriety tests like those involved in this case . . . is lay witness testimony, not expert witness testimony"). There was no error, let alone a substantial risk of a miscarriage of justice.
2. Closing argument. The defendant claims error in four aspects of the Commonwealth's closing argument. Because he did not object at trial, we review to determine, if error, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Collazo, 481 Mass. 498, 502 (2019). The lack of an objection "may be viewed as 'some indication that the tone [and] manner . . . of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial.'" Commonwealth v. Carriere, 470 Mass. 1, 19 (2014), quoting Commonwealth v. Mello, 420 Mass. 375, 380 (1995). Two of the four challenged statements were based on either direct evidence, or fair inferences drawn from the evidence. See, e.g., Commonwealth v. Vazquez, 478 Mass. 443, 451-452 (2017). Moreover, the judge instructed the jury twice that closing arguments were not evidence. The jury are presumed to follow these instructions. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013). Viewing the challenged statements in the context of the evidence, the judge's instructions to the jury, and the strength of the Commonwealth's case, even if error, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Imbert, 479 Mass. 575, 587 (2018).
The challenged statements are that the defendant: (1) had to brace himself against the car while stepping from it; (2) stepped off the line during the heel-to-toe sobriety test; (3) parked in the center travel lane when police pulled him over; and (4) was observed "missing the traffic light, blowing a stop sign."
We agree with the defendant that the last challenged statement that the defendant "miss[ed] the traffic light" was a misstatement of fact. However, the prosecutor immediately corrected the error by stating "missing the traffic light, blowing a stop sign." Although the misstatement constitutes error, "[i]n the context of the closing argument as a whole . . . this isolated [mis]statement was unlikely to have prejudiced the defendant" (citation omitted). Commonwealth v. Brown, 477 Mass. 805, 819 (2017).
Judgment affirmed.
By the Court (Vuono, Blake & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 5, 2020.