Opinion
19-P-513
03-30-2020
COMMONWEALTH v. Matthew L. KING.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the defendant, Matthew King, guilty of operating under the influence of liquor, second offense. G. L. c. 90, § 24 (1) (a ) (1). The defendant argues that a police officer improperly testified that the defendant "was impaired. Way too impaired to be operating a motor vehicle." We affirm.
Discussion. Police officers "may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication." Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012). As such, we agree with the defendant that the officer's statement that the defendant was "[w]ay too impaired to be operating a motor vehicle" exceeded permissible opinion testimony and, in the absence of any objection, we review the error to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 607 (2013).
A substantial risk of a miscarriage of justice exists where there is "serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). There is no substantial risk of a miscarriage of justice where, as is the case here, the improper testimony was brief and the Commonwealth's remaining evidence was particularly strong. See Saulnier, 84 Mass. App. Ct. at 607 ("We are persuaded that there was no substantial risk of a miscarriage of justice here. The impermissible portion of the officer's testimony was very brief, and the Commonwealth's case was very strong"). Compare Commonwealth v. Canty, 466 Mass. 535, 545 (2013) (reviewing for prejudicial error, found testimony that defendant's ability to drive was diminished created no prejudice where (1) testimony was police testimony as opposed to expert witness testimony, (2) judge instructed jury that they could accept or reject testimony, and (3) the Commonwealth's evidence was overwhelming); Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389-391 (2017) (reviewing for prejudicial error, found no prejudice where evidence was compelling and judge instructed jury that they may accept or reject testimony).
The Commonwealth presented testimony from two police officers. The first officer testified that that the defendant's clothes were heavily soiled, his fly was undone, he had difficulty standing, he took several staggering steps to maintain his balance, an odor of alcohol emanated from his breath, his eyes were bloodshot, his speech was slurred, he flailed his arms as he spoke with the officer, and he became belligerent at times. Based on all of these factors, the first officer properly opined that the defendant was under the influence of alcohol.
The defendant concedes that the first officer's testimony was proper.
The second officer testified that the defendant had bloodshot, glassy eyes, swayed side to side, had an odor of alcohol emanating from his breath, and was belligerent. These observations also permissibly supported the officer's opinion that the defendant was impaired. This testimony regarding the defendant's disheveled appearance, odor of alcohol, and belligerent behavior supported each of the officers' properly admitted opinions and provided strong evidence that the defendant operated under the influence. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994) ("That a defendant was belligerent, unsteady on his feet and smelled of alcohol are factors that may support an inference of diminished capacity to operate safely due to intoxication"). By contrast, the second officer's impermissible opinion testimony was one solitary brief statement that was overshadowed by all other indicia of impairment. As such, we conclude that there is little, if any, doubt that the result of trial would have been the same without the error.
Because the second officer clearly testified that the defendant had bloodshot, glassy eyes, was swaying side to side, had an odor of alcohol emanating from his breath, and was belligerent, we find no merit in the defendant's argument that the second officer's opinion was conclusory and not based on specific facts.
To the extent that the defendant's arguments can be construed as a claim for ineffective assistance of counsel, such claim is without merit. See Commonwealth v. Williams, 456 Mass. 857, 870 (2010) (where improperly admitted evidence did not create a substantial risk of a miscarriage of justice, an ineffective assistance of counsel claim based on the failure to object to the improper evidence also fails).
Judgment affirmed.