Commonwealth v. Moreno

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
22-P-330 Appeals Court
COMMONWEALTH vs. FELIX S. MORENO.
No. 22-P-330.
Middlesex. December 13, 2022. – February 23, 2023.
Present: Green, C.J., Meade, & Blake, JJ.
Motor Vehicle, Operating under the influence, Operating to
endanger. Reckless Endangerment of a Child. Alcoholic
Liquors, Motor vehicle. Evidence, Field sobriety test,
Opinion. Practice, Criminal, New trial, Assistance of
counsel, Question by jury, Instructions to jury, Witness.
Witness, Expert.
Complaint received and sworn to in the Concord Division of
the District Court Department on August 29, 2016.
The case was tried before Lynn C. Brendemuehl, J., and a
motion for a new trial was heard by her.
MarySita Miles for the defendant.
Chia Chi Lee, Assistant District Attorney, for the
Commonwealth.
MEADE, J. After a jury trial, the defendant was convicted
of operating a motor vehicle while under the influence of
2
intoxicating liquor (OUI), third offense,1 and child endangerment
while OUI. On appeal from the judgments and from the order
denying his motion for a new trial, the defendant claims that
(1) the judge erred by permitting the arresting officer to use
the phrase "sobriety test" during his testimony and for
permitting the officer to describe his training and experience
in administering those tests, and (2) his trial counsel provided
ineffective assistance by not objecting to a jury instruction on
the lack of breathalyzer evidence. We affirm.
Background. We summarize the facts as the jury could have
found them. See Commonwealth v. Sands, 424 Mass. 184, 185
(1997). At approximately 12:30 A.M. on August 28, 2016,
Sergeant Kevin Monahan of the Concord police department saw a
Jeep Cherokee and a GMC Yukon pulled over in a breakdown lane on
Route 2 in Concord. Seeing that the Jeep's hazard lights were
on, Sergeant Monahan stopped and discovered that the two
vehicles had collided. The defendant was the driver of the
Yukon, his girlfriend was a passenger, and their two year old
daughter was in the back seat. The collision happened when the
defendant stopped behind the Jeep at a red light. When the
light turned green, the Jeep did not move immediately, but the
1 After a jury trial on the underlying charge, the third
offense portion of the charge was heard by the judge.
3
defendant accelerated anyway, and the Yukon collided with the
rear passenger side of the Jeep.
Sergeant Monahan asked the defendant where his car was
damaged, and the defendant pointed to the wrong side of the car.
The sergeant noticed the defendant's eyes were bloodshot and
glassy, he walked unsteadily, and his breath had an odor of
alcohol. He then asked the defendant to complete three field
sobriety tests. Before the tests, the defendant stated that he
understood English, and that he was not impaired by any
medication or physical condition. Nevertheless, the defendant
failed all three tests: he listed only five letters when asked
to recite the alphabet,2 he could not stand with one foot raised
while counting to thirty, and he was unable to walk nine steps
heel-to-toe without stumbling. The defendant did not explain
why he could not recite the alphabet, but he did state that he
had a bad hip that caused him to fail the one-legged stand test.
Before trial, the defendant filed a motion in limine to
prevent the Commonwealth's witnesses from using the phrase
"sobriety test," arguing that it transforms a lay opinion into
an expert opinion. The judge denied the motion. During the
trial, Sergeant Monahan testified that he had been trained in
OUI investigations at the police academy, including in
2 The defendant could only recite five letters -- A, B, C,
T, and Z -- and then stopped.
4
administering field sobriety tests. He explained that he was
trained to look for physical signs that a person is impaired by
alcohol, such as bloodshot or glassy eyes, slurred speech, an
odor of alcohol, and poor balance. Sergeant Monahan also
described what field sobriety tests are, his experience in
administering them, and how the defendant performed on the
tests. He testified that he formed the opinion that the
defendant was intoxicated based on the defendant striking
another car, failing to complete the field sobriety tests, and
having physical symptoms such as slurred speech, poor balance,
and bloodshot eyes.3
On the first day of deliberations, the jury sent a question
to the judge inquiring why there had been no breathalyzer test
evidence. The judge told defense counsel and the Commonwealth
that she intended to respond with two instructions: a reminder
to the jury to decide the facts solely based on the evidence at
trial,4 and an instruction pursuant to Commonwealth v. Downs, 53
Mass. App. Ct. 195, 198 (2001) (Downs instruction), on the
3 The defendant also testified at trial, in English, having
declined an interpreter. He testified that he did not study the
alphabet as a child, could only read a little, and was unable to
write.
4 The judge told the jury to imagine all the trial evidence
in a box and that they should remain inside that box when
deciding the case, and to avoid guesswork, speculation, or
conjecture.
5
absence of breathalyzer evidence. Both defense counsel and the
Commonwealth agreed to the judge's proposed response. The judge
delivered the Downs instruction as follows:
"You are not to mention or consider in any way whatsoever,
either for or against either side, that there is no
evidence of a breathalyzer. You may not speculate or guess
about it because there is no evidence about it. Do not
consider that in any way. Do not mention it and put it
completely out of your mind."
The defendant moved for a new trial, claiming his trial
counsel provided ineffective assistance by failing to consult
him before agreeing to the Downs instruction. The motion judge,
who was also the trial judge, denied the motion.
Discussion. 1. Sobriety test testimony. We review the
judge's decision to permit the sergeant to use the phrase
"sobriety test" for prejudicial error because the defendant's
motion in limine preserved the issue. See Commonwealth v.
Canty, 466 Mass. 535, 544-545 (2013). However, the defendant's
claim relative to the sergeant's testimony regarding his
training and experience was not properly preserved, so we review
to determine if there was error, and if so, whether it created a
substantial risk of a miscarriage of justice.5 See Commonwealth
v. Bonds, 445 Mass. 821, 828 (2006) (issue not preserved where
5 The defendant's motion in limine did not mention testimony
about the sergeant's training and experience. Defense counsel
objected to the testimony during trial but did not specify the
grounds for the objection. This did not preserve the claim.
See Commonwealth v. Almele, 474 Mass. 1017, 1018 (2016).
6
testimony was objected to at trial but on different grounds than
those asserted on appeal). As discussed below, we conclude
there was no error.
The defendant claims the phrase "sobriety test," when
combined with an officer's description of his training and
experience, transforms the officer's testimony from a lay
opinion to an expert opinion. We disagree. "[A]n opinion
regarding a defendant's sobriety is a lay opinion," and a police
officer may testify as a non-expert witness to a defendant's
"apparent intoxication" (citation omitted). Canty, 466 Mass. at
541. "[T]ypical field sobriety tests do not supply the basis
for a scientific opinion about whether a person is under the
influence of alcohol or the level of intoxication."
Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353 n.5 (2015).
Instead, field sobriety tests permit an officer to observe
whether a person has lost or diminished balance, coordination,
or mental acuity due to intoxication. See Commonwealth v.
Brown, 83 Mass. App. Ct. 772, 774 n.1 (2013). Because a lay
juror understands the effects of intoxication, an officer's
observations of a defendant's behavior during a sobriety test
remain within the realm of common experience. See id., citing
Sands, 424 Mass. at 188. See also Mass. G. Evid. § 701 (2022)
(non-expert testimony admissible if based on witness
perceptions, helpful to jury's understanding of facts, and "not
7
based on scientific, technical, or other specialized
knowledge").
In Canty, the Supreme Judicial Court observed that "a
prosecutor who elicits from a police officer his or her special
training or expertise in ascertaining whether a person is
intoxicated risks transforming the police officer from a lay
witness to an expert witness on this issue." Canty, 466 Mass.
at 541 n.5. Here, however, the prosecutor properly elicited the
sergeant's testimony regarding his training and experience in
OUI investigations, including field sobriety tests. Indeed, the
sergeant's opinion was based on his observations that the
defendant collided with another car and showed several physical
signs of intoxication. Relative to the field sobriety tests,
the defendant could not recite the alphabet, could not stand
with one foot raised while counting to thirty, and could not
walk nine steps heel-to-toe without stumbling. What the
sergeant observed, both before and during the sobriety tests,
was within the scope of a juror's common experience of
intoxication. See Rarick, 87 Mass. App. Ct. at 353 n.5. See
also Brown, 83 Mass. App. Ct. at 774 n.1 ("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"). Cf. Commonwealth v.
Matta, 483 Mass. 357, 366 n.8 (2019) ("ordinarily, when an
8
officer relies on his or her training and experience to draw an
inference or conclusion about an observation made, the officer
must explain the specific training and experience that he or she
relied on and how that correlates to the observations made").
The observations therefore do not form the basis for scientific
conclusions, and this is not a case where the sergeant's
description of his training and experience transformed his
testimony into an expert opinion. Cf. Canty, supra.
Relying on a dissenting opinion from one of our prior
decisions, the defendant asserts that the judge should have done
more to ensure that the jury did not mistake the lay testimony
for expert testimony. See Commonwealth v. Gallagher, 91 Mass.
App. Ct. 385, 399 (2017) (Agnes, J., dissenting). However, a
dissent is just that, and it lacks any binding precedential
value. In any event, other than both cases involving OUI
charges, this case is not similar to Gallagher. There, we
concluded that an officer's testimony that the defendant "was
impaired to operate a motor vehicle" was improper because it
commented on the defendant's guilt or innocence. Id. at 389.
In Canty, the Supreme Judicial Court similarly concluded that an
officer improperly commented on the ultimate issue in the case
by stating that alcohol diminished the defendant's ability to
drive. See Canty, 466 Mass. at 544. However, both the Supreme
Judicial Court in Canty and this court in Gallagher reasoned
9
that the improper testimony did not prejudice the defendant, in
part because in each case the judge adequately instructed the
jury that they alone were to determine the defendant's guilt or
innocence. See Canty, supra at 545; Gallagher, supra at 390.
In this case, the testimony was proper, and the judge provided
the appropriate instructions to the jury.6 No further guidance
on the distinction between lay and expert opinion evidence was
required. There was no error.7
2. Ineffective assistance. We review the denial of a
motion for a new trial "to determine whether there has been a
6 The judge instructed the jury that they should decide
whether to accept, reject, or assign any weight to the opinion
testimony and the sobriety test evidence, and ultimately, that
they alone were to decide whether the defendant was intoxicated.
7 For the first time on appeal, the defendant also claims
that the prosecutor's unobjected-to closing argument, which
described the sergeant's training and experience in
administering field sobriety tests, transformed the sergeant's
opinion into that of an expert. We disagree. The prosecutor's
argument merely laid out how the sergeant was trained in the
administration of field sobriety tests, what the indicators of
intoxication may be, and that the sergeant had nineteen years of
experience. This was especially appropriate after defense
counsel attempted to discredit the sergeant's credibility by
arguing that the sergeant had seen a late-night accident,
smelled alcohol, and simply made "an assumption" regarding the
defendant's intoxication. See Commonwealth v. Kee, 449 Mass.
550, 560 (2007). See also Commonwealth v. Thomas, 401 Mass.
109, 116 (1987) ("Where credibility is at issue, it is certainly
proper for counsel to argue from the evidence why a witness
should be believed"). At bottom, the prosecutor's argument did
not risk transforming the sergeant from a lay witness to an
expert witness. See Canty, 466 Mass. at 541 n.5. There was no
error, and thus, no risk that justice miscarried.
10
significant error of law or other abuse of discretion."
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We give
particular deference to the decision of a motion judge who was
also the trial judge. See id. Where the defendant claims
ineffective assistance of counsel, a new trial is warranted only
if the defendant shows that "there has been serious
incompetency, inefficiency, or inattention of counsel --
behavior of counsel falling measurably below that which might be
expected from an ordinary fallible lawyer -- and, if that is
found, then, typically, whether it has likely deprived the
defendant of an otherwise available, substantial ground of
defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Regarding the second prong of the Saferian analysis, "the
defendant is entitled to a new trial if there is a substantial
risk of a miscarriage of justice arising from counsel's
failure." Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
The defendant claims that his trial counsel was ineffective
by failing to consult him before the judge provided the Downs
instruction to the jury. In Commonwealth v. Wolfe, 478 Mass.
142, 149-150 (2017), as an exercise of its superintendence
power, the court held that "the better practice is for a judge
to refrain from giving a Downs-type instruction absent a request
by the defendant or some rare set of facts that specifically
directs the jury's attention to the absence of alcohol-test
11
evidence." Animating the court's concern was that the Downs
instruction could implicate the defendant's protection against
self-incrimination under art. 12 of the Massachusetts
Declaration of Rights because it draws the jury's attention to
the lack of alcohol-test evidence, suggesting that the defendant
may have refused a test or feared an unfavorable result. See
id. at 147-148. See also Opinion of the Justices, 412 Mass.
1201, 1209 (1992) (refusal evidence may be used to show
defendant feared failing alcohol test and thus held to violate
privilege against self-incrimination under art. 12 of
Massachusetts Declaration of Rights).
In this case, during the first day of deliberations, the
jury asked for clarification on why there was no breathalyzer
test evidence. A footnote in Wolfe specifically addressed this
situation, stating that "it is the better practice to simply
reiterate the general instruction not to speculate about matters
not in evidence and, to the extent possible, refrain from
reinforcing the jury's focus on items not in evidence by
mentioning the lack of alcohol-test evidence." Wolfe, 478 Mass.
at 150 n.13. In response to the jury's question here, the judge
provided both the Downs instruction and a general instruction.
Although the judge did more than merely reiterate the general
instruction as the court in Wolfe had recommended, the defendant
has not shown that the response was improper for two reasons.
12
First, the judge consulted defense counsel before
delivering the Downs instruction, and defense counsel agreed
that it was appropriate. Therefore, although defense counsel
did not affirmatively request the instruction, the judge
complied with Wolfe by giving defense counsel the opportunity to
elect whether the jury should receive it. See Wolfe, 478 Mass.
at 149 ("we conclude that typically a defendant should be able
to elect whether the jury are instructed about the absence of
alcohol-test evidence"). In fact, Wolfe does not prohibit a
judge from having a discussion with defense counsel about
whether to give the Downs instruction.
Second, Wolfe addressed the art. 12 concern that the jury
will speculate about why alcohol-test evidence is missing. This
concern is diminished where, as in this case, the jury has
independently asked for an explanation. Accordingly, although
the court in Wolfe stated that it is the better practice to
respond to a jury question with a general instruction only, the
court did not state that it is error to deliver the Downs
instruction as well. See Wolfe, 478 Mass. at 150 n.13. Rather,
in Wolfe, the court stated that it was error to instruct the
jury on the absence of alcohol-test evidence against the
defendant's wishes. See id. at 149. See also Commonwealth v.
Waite, 422 Mass. 792, 807 n.11 (1996) (judge has broad
discretion in responding to jury questions).
13
The defendant also claims that his trial counsel provided
ineffective assistance by failing to obtain his consent to the
Downs instruction. In support of the defendant's motion for a
new trial, his trial counsel admitted that he was unaware of the
Wolfe decision, and that if he had been aware, he would have
advised the defendant not to agree to the Downs instruction.
Even if counsel's performance was deficient in this manner,
given our conclusion that providing the Downs instruction was
not error in the circumstances of this case, the defendant
cannot establish prejudice to meet the second prong of an
ineffective assistance of counsel claim. See Commonwealth v.
Keon K., 70 Mass. App. Ct. 568, 574 n.4 (2007), citing
Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) (if
counsel's omission does not present substantial risk of
miscarriage of justice, no basis for ineffective assistance of
counsel claim under either Federal or State Constitution).8
8 The defendant relies on Commonwealth v. Spring, 94 Mass.
App. Ct. 310, 320-321 (2018), to support his claim that
counsel's unawareness of relevant case law was manifestly
unreasonable. We concluded in Spring that counsel's
unfamiliarity with the law and failure to request an essential
jury instruction fell below expectations of an ordinary lawyer.
See id. However, in Spring, the jury instructions did not
properly set out all elements of the charged offense. See id.In the present case, the jury instruction correctly addressed
all elements of the charged offense, and the defendant has not
shown that there was a substantial risk that the result of the
jury's deliberations would have been different had the judge not
administered the Downs instruction. See Commonwealth v.
Satterfield, 373 Mass. 109, 115 (1977) (defendant's burden to
14
Further diminishing any concerns of unfair prejudice was that
the Commonwealth's case against the defendant was very strong,
if not overwhelming: the defendant collided with another car
and misidentified where his car was damaged; he had bloodshot
eyes, walked unsteadily, and his breath had an odor of alcohol;
and he failed three field sobriety tests.9 Compare Commonwealth
v. Bryer, 398 Mass. 9, 10, 17 (1986) (evidence "substantial and
overwhelming" where defendant was observed speeding, was unable
to balance, and was acting belligerently, with red, glassy eyes,
and odor of alcohol). We are therefore not left with serious
doubt that the jury's verdicts would have been different if the
defendant had been consulted and they had not heard the Downs
instruction, and there was no miscarriage of justice warranting
a grant of the new trial motion. See Millien, 474 Mass. at 432;
Grace, 397 Mass. at 307.
Judgments affirmed.
show that "better work might have accomplished something
material for the defense").
9 The defendant claims that tiredness and distraction caused
the collision and that he failed the field sobriety tests
because of his lack of fluency in English and a hip injury.
Because of these alternative explanations, he asserts the
Commonwealth's evidence was not overwhelming. We disagree.
"Merely offering the possibility of another scenario, based on
an incomplete accounting of the evidence, is insufficient to
meet the defendant's burden to show that the proffered evidence
'was likely to have influenced the jury's conclusion.'"
Commonwealth v. Don, 483 Mass. 697, 710 (2019), quoting
Commonwealth v. Barnett, 482 Mass. 632, 638 (2019).
15
Order denying motion for a
new trial affirmed.