Motor vehicles – OUI – Trooper – Opinion testimony

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Where, during the defendant’s trial for operating while under the influence of intoxicating liquor (OUI), the judge improperly admitted a state trooper’s testimony concerning her impairment to operate a motor vehicle, reversal is not required because the error was not prejudicial.

As the defendant’s conviction is supported by substantial evidence, it will be upheld.

“Here, Trooper Haidousis testified that after observing the defendant and administering the field sobriety tests, he ‘formed the opinion that [the defendant] was under the influence of alcohol.’ When asked if he made a determination as to the defendant’s ‘level of impairment,’ Trooper Haidousis stated that he determined that the defendant ‘was impaired to operate a motor vehicle.’ The first portion of this testimony, i.e., the opinion that the defendant was under the influence of alcohol, was proper. … However, the second portion, where the trooper opined that the defendant’s level of intoxication rendered her impaired to operate her vehicle, is the type of evidence that was prohibited in [Commonwealth v. Canty, 466 Mass. 535 (2013)]. This type of testimony comes close to an opinion on the ultimate issue of guilt or innocence, and presents a danger of unfair prejudice. … At the same time, in view of the whole case, the prejudice flowing from this opinion would be relatively modest given what must have been obvious to the jury, i.e., that the arresting trooper believed the defendant’s ability to operate her car was impaired by alcohol consumption.

“Here, the judge gave a specific instruction regarding Trooper Haidousis’s opinion relative to the defendant’s level of impairment. The instruction told the jury that it was for them, and them alone, to determine whether the defendant was under the influence of alcohol, and that the jury were free to accept or reject any opinion on the issue. The instruction was nearly verbatim of that given in Canty, where the Supreme Judicial Court found no prejudicial error in the opinion testimony of the officer. … The inclusion of this instruction greatly diminished the risk of any prejudicial effect the improper opinion testimony may have had on the jury. …

“Furthermore, there was compelling, if not overwhelming, evidence that supported the jury’s conclusion — apart from the improper opinion testimony — that the defendant’s intoxication impaired her ability to operate a motor vehicle. …

“The defendant also claims that there was insufficient evidence to support her conviction. We disagree. …

Dissenting judge’s comments

Agnes, J. “I write separately not because the evidence heard by the jury was insufficient to support the jury’s verdict that the defendant, Judith A. Gallagher, was operating her motor vehicle on a public way while under the influence of alcohol (OUI) in violation of G.L.c. 90, section24. The evidence of the defendant’s guilt was sufficient. The question before us, however, is different. We are asked to determine whether prejudice resulted from the judge’s error in allowing the State police Trooper John Haidousis, the sole witness at trial, to give his opinion about the defendant’s guilt, over the defendant’s objection and in violation of Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013), by stating that she was ‘impaired to operate a motor vehicle.’ The standard we must follow requires that we consider what effect, if any, the error had on the minds of the jurors, not on our own, in relation to the evidence as a whole. …

“One way to measure whether the error in admitting lay witness opinion testimony, like that involved in this case, was prejudicial error is to compare the facts in the instant case to those in Canty, where the Supreme Judicial Court concluded that the error was nonprejudicial. … The comparison, in my view, does not assist the Commonwealth. … In the present case, … the evidence, while sufficient to support a jury verdict of guilty, was not overwhelming. …

“There is no precise formula for measuring what effect, if any, erroneously admitted evidence has on the minds of jurors. However, using the facts in Canty as a guide, the present case is not one in which there was overwhelming evidence that the defendant operated her vehicle while impaired by alcohol. Considering that the evidence portion of the trial consisted of only thirty-seven pages of transcript, made up entirely of the testimony of Trooper Haidousis, I am unable to say with conviction that his erroneously admitted opinion that the defendant was ‘impaired to operate a motor vehicle’ either had no effect or only a slight effect on the minds of the jury.”

Commonwealth v. Gallagher (Lawyers Weekly No. 11-046-17) (26 pages) (Meade, J.) (Agnes, J., dissenting) Case heard by Sanabria-Vega, J., in District Court. Colin Caffrey for the defendant; Kelsey A. Baran for the commonwealth (Docket No. 16-P-192) (April 21, 2017).