DocketNumber: 17–P–1003
Citation Numbers: 104 N.E.3d 684, 93 Mass. App. Ct. 1116
Filed Date: 6/22/2018
Status: Precedential
Modified Date: 7/24/2022
After a jury trial, the defendant, Sean Welenc, was found guilty of operating a motor vehicle while under the influence of liquor, second offense, G. L. c. 90, § 24(1)(a )(1), and found responsible for a marked lanes violation, G. L. c. 89, § 4A.
At trial, the Commonwealth's sole eyewitness was a police officer who testified to his observations of the defendant before, during, and after the officer conducted field sobriety tests. At the close of evidence, the trial judge instructed the jury in accordance with Instruction 5.310 of the Criminal Model Jury Instructions for Use in the District Court (2013). This instruction informed the jury that it was for them "to determine whether to rely on" the evidence of the defendant's performance during the field sobriety tests. Counsel for the defense did not object to the jury instruction. The defendant now argues on appeal that the judge should have sua sponte cautioned the jury that the officer's testimony was lay opinion, and that the judge's failure to do so constituted an error.
In the absence of a valid objection, the sole question before us is whether the instruction as given was an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Wood,
The defendant's reliance on Commonwealth v. Gerhardt,
Judgment affirmed.
The marked lanes violation was filed with the defendant's consent.
After the jury posed a question about the weight to be given to the field sobriety tests, the judge charged them again with the same model instruction. "We presume that a jury follow all instructions given to it." Commonwealth v. Watkins,