Opinion
19-P-279
07-22-2020
COMMONWEALTH v. ANH V. NGUYEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A Boston Municipal Court jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor. We affirm.
In proving its case, the Commonwealth relied on the testimony of Trooper Jordan MacPherson. MacPherson pulled the defendant's car over on Interstate 93 after observing it traveling approximately fifteen miles under the speed limit and frequently changing lanes. He testified, inter alia, that: the defendant had slurred speech and glassy bloodshot eyes, the defendant's car smelled of alcohol (a smell that emanated from the defendant himself after he exited the car), the defendant (who weighed only about 115 pounds) admitted to having drunk three or four beers, the defendant stumbled and needed assistance walking once he exited the car, and the defendant admitted during booking that he "drives shit-faced all the time." MacPherson also testified as to the defendant's engaging in field sobriety tests, and it is that testimony that is the subject of the appeal. We therefore turn to reviewing that testimony in detail.
The defendant testified that he told MacPherson that he "drives safely," and that MacPherson misheard what he had said.
The defendant exited his car when MacPherson asked him to perform field sobriety tests. MacPherson explained to the jury that such assessments are "divided attention tests that make you do two things at once to reveal if you're intoxicated or not." Before taking the first test, the nine-step walk-and-turn test, MacPherson asked the defendant whether he had any injuries or was taking any medication that would interfere with his ability to perform, and the defendant said he did not. According to MacPherson, the defendant did not follow instructions or perform the test properly. Specifically, the defendant began the test prematurely, was unable to maintain his starting position, almost fell over several times, did not touch heel to toe, took fifteen steps instead of eighteen, and "turned the opposite way of what [MacPherson] instructed him to do."
MacPherson then instructed the defendant on how to perform the one-leg stand test. At that point, the defendant stated that he was too old and did not have the balance to complete it. MacPherson asked the defendant if he wanted to try, and the defendant said he did. On his first try, the defendant immediately began "hopping." On his second, he could keep his leg up for only three seconds. According to MacPherson, the defendant then "refused" to continue. Having formed the opinion that the defendant was intoxicated, MacPherson arrested him.
Discussion. The defendant claims two types of error with respect to the testimony about the field sobriety tests. First, he argues that MacPherson improperly recounted the defendant's comments about the difficulties he anticipated in performing the second test, and about his ultimate "refus[al]" to complete it. See Commonwealth v. McGrail, 419 Mass. 774, 777-780 (1995) (admission of defendant's refusal to do field sobriety test violates right against self-incrimination); Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 372-373 (2006) (error to admit defendant's initial refusal to perform field sobriety test even though defendant ultimately attempted the test); Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61 (1998), quoting Opinion of the Justices, 412 Mass. 1201, 1209 (1992) (defendant's comment about his anticipated difficulty in taking field sobriety test treated as "the equivalent of [the] statement, 'I have had so much to drink that I know or [at] least suspect that I am unable to pass the test'"). The Commonwealth disputes that the testimony about what the defendant said and did could properly be characterized as "refusal" evidence, and claims that the just-cited cases can be distinguished on various grounds. We need not resolve whether the testimony constituted refusal evidence, because -- assuming arguendo it did -- the defendant cannot show sufficient prejudice to warrant a new trial.
Unlike in McGrail, Ranieri, and Grenier, the defendant raised no objection to the relevant testimony, and he therefore is left to argue that the introduction of the evidence caused a substantial risk of a miscarriage of justice. See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 774 (2013). He cannot make that showing on the facts of this case. Indeed, by introducing an alternative explanation for why the defendant might do poorly on the test, the testimony was quite arguably in the defendant's favor. In addition, the other evidence of the defendant's intoxication recounted above was robust. In short, we are confident that the introduction of any refusal evidence, even if error, did not affect the jury's verdict.
This may explain why no objection was lodged. The defendant also derived some benefit from MacPherson's recounting of his initial efforts to be cooperative.
We are unpersuaded by the defendant's argument that the undisputed fact that he was watching a video while driving when MacPherson pulled him over significantly undercut the Commonwealth's inculpatory evidence. As the Commonwealth points out, the defendant's considering it acceptable to watch a video while driving itself could be taken as evidence of impaired judgment, and, thus, of inebriation.
The second error that the defendant claims involves MacPherson's explanation of the field sobriety tests as "divided attention tests that make you do two things at once to reveal if you're intoxicated or not." The defendant argues that this characterization of the role that field sobriety tests play is "overly simplistic and incorrect." However, no contemporaneous objection was lodged, and the defendant is therefore left to argue that MacPherson's characterization of the test caused a substantial risk of a miscarriage of justice. The defendant has not shown MacPherson's explanation to be substantially inaccurate, and the cases long have recognized the admissibility of field sobriety tests to help demonstrate intoxication by alcohol, including the labeling of such assessments as "tests" in this context. See, e.g., Commonwealth v. Gerhardt, 477 Mass. 775, 776 (2017) (characterizing field sobriety tests as "tests [that] were developed specifically to measure alcohol consumption," and noting that "there is widespread scientific agreement on the existence of a strong correlation between unsatisfactory performance [on such tests] and a blood alcohol level of at least .08%"). See also Brown, 83 Mass. App. Ct. at 774 n.1 ("A lay juror understands that intoxication leads to diminished balance, coordination, and mental acuity from common experience and knowledge" [quotation omitted]).
In addition, the judge specifically instructed the jury with respect to the evidence about field sobriety tests as follows:
"[I]t is for you to decide if th[e]se tests demonstrate the defendant's ability to operate a motor vehicle safely was diminished. It is for you to determine whether to rely on this evidence. You may accept it or reject it, and you may give it such weight as you believe it deserves. In making your assessment, you may consider the nature of the tests, the circumstances under which they were given and performed, and all of the other evidence in this case."We assume the jury followed those instructions. Finally, we note that during their deliberations, the jury asked a number of questions with respect to how they were to determine if the defendant had been inebriated. Those questions undercut the defendant's suggestion that the jurors were significantly swayed by MacPherson's testimony about the role played by field sobriety tests. We again are confident that even if the defendant could show that such testimony should not have been admitted, any error did not cause a substantial risk of a miscarriage of justice.
Specifically, the jury asked: "What are the objective means by which the state evaluates intoxication? Does the use of a breathalyzer test fall under the purview of the officer's role? Why wasn't this performed, if so? How exactly is intoxication defined?"
Judgment affirmed.
By the Court (Milkey, Massing & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 22, 2020.