Commonwealth v. Jack N. Keverian.

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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-275
COMMONWEALTH
vs.
JACK N. KEVERIAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jack N. Keverian, appeals from his
conviction after a jury trial of operating under the influence
of intoxicating liquor (OUI), second offense.1 The defendant
argues that a State police trooper's testimony opining that the
defendant "was under the influence of alcohol and marijuana"
violated Commonwealth v. Gerhardt, 477 Mass. 775, 785 (2017),
decided six days after this trial, which held that a police
officer not qualified as an expert may not opine that a
defendant was intoxicated by marijuana. The defendant contends
that, although the jury acquitted him of operating under the
1 After the jury trial on the underlying charge, the second
offense portion of the charge was heard by the judge, who also
found the defendant not responsible for a civil marked lanes
infraction.
influence of marijuana (OUI-marijuana), the trooper's opinion as
to marijuana intoxication infected the conviction for OUI. We
affirm.
Background. At about 2:30 A.M. on February 27, 2016,
Trooper Matthew Clark responded to Soldiers Field Road in
Brighton, where the defendant's rented Chevrolet Cruze and
another car (second car) had collided. When the trooper
arrived, both drivers were standing between the vehicles. The
trooper asked if they were injured, and the driver of the second
car replied that he was not. The defendant just stood there
with a dazed look, then said, "No." Because of his dazed look,
the trooper thought the defendant might be injured, and asked
the question again. The defendant repeated that he was not
injured.
The trooper told both drivers to return to their vehicles,
and the driver of the second car complied. The defendant began
walking toward the Cruze, but walked into the travel lane of the
roadway, and so the trooper redirected him to the Cruze. The
Cruze was still running, and there was no passenger in it.
After the trooper asked for the defendant's license and
registration, the defendant handed the trooper his license and
an expired rental agreement that pertained to a different
vehicle.
2
A State police trooper for ten years, Trooper Clark had
been trained to perform field sobriety tests and to recognize
the symptoms of alcohol impairment. During their conversation,
Trooper Clark smelled strong odors of both alcohol and marijuana
emanating from the interior of the Cruze.2 He also noticed that
the defendant had a slack, droopy facial expression and
bloodshot eyes with reddened rims. Questioned by the trooper,
the defendant admitted he had consumed two beers, but said that
he did not remember the brand of beer. He said he was headed
home, which he said was "close"; when the trooper asked where he
lived, he named a town well over twenty miles away. The
defendant's speech was not so slurred as to be unintelligible,
but he spoke with a "thick tongue."
At the trooper's request, the defendant got out of the
Cruze and stood in the breakdown lane while the trooper
instructed him on how to perform field sobriety tests.3 At this
2 Trooper Clark was trained in how to recognize the odor of
marijuana; he had smelled it "[w]ell over a hundred times"
during motor vehicle stops, and also while at the State police
academy. See Commonwealth v. MacDonald, 459 Mass. 148, 158
(2011) (trained police officer may identify odor of marijuana).
3 The prosecutor, the trooper, and defense counsel all referred
to the tests as "field sobriety tests." In Gerhardt, 477 Mass.
at 785, the court directed that in the context of marijuana
intoxication the term "roadside assessments" should be used
instead. Gerhardt did not discuss what term should be used
where, as here, there is evidence of consumption of both alcohol
and marijuana. The defendant does not raise the issue on
appeal, and so we do not reach it.
3
point, the defendant was swaying back and forth. Asked if he
had taken any drugs or medication during the day, the defendant
replied that he had taken his medically prescribed marijuana
"this morning." The trooper again smelled a strong odor of
alcohol and a strong smell of marijuana. The trooper asked why,
if the defendant had smoked marijuana that morning, the odor was
still strongly emanating from his clothing; the defendant
replied that he did not know. Although the temperature was
about thirty degrees, the defendant, who was wearing a "winter
jacket" over a shirt and sweater, was "profusely sweating," and
the arteries on the sides of his neck were visibly palpitating.
When the trooper asked what time it was, the defendant said he
thought it was about 12:30 to 1 A.M.; in fact, it was about 2:30
A.M.
The defendant had difficulty with two of the three field
sobriety tests. As to the one-legged stand, on his first
attempt he held his foot up for only ten seconds, rather than
the required thirty seconds, before he began hopping; on his
second attempt, he kept his foot up for thirty seconds, but had
to use his arms to maintain balance. During the nine-step walk-
and-turn, he used his arms for balance, walked ten steps instead
of nine, and did not count the steps aloud as instructed. The
defendant did pass the alphabet test.
4
The trooper arrested the defendant, placed him in the back
seat of the police cruiser, and radioed for a tow truck. The
trooper went to the Cruze, turned off the ignition, and secured
the defendant's wallet and cell phone. On the front passenger
seat was a cigarette lighter, and wedged next to the center
console was a large glass water bong containing green leafy
vegetable matter that smelled like marijuana.4 In the center
console were seven small bottles labeled with the defendant's
name, each containing green leafy vegetable matter that smelled
like marijuana. At booking, the trooper found in the
defendant's wallet a medical marijuana card, which was valid.
At the close of evidence, defense counsel moved for a
required finding of not guilty, arguing that the Commonwealth
had not proven which substance -- alcohol or marijuana -- caused
the defendant's impairment. The judge denied the motion, noting
that he would instruct the jury to consider the two charges
separately, and then did so. The jury convicted the defendant
of OUI and acquitted him of OUI-marijuana. After trial, the
defendant moved pursuant to Mass. R. Crim. P. 25 (b) (2), as
amended, 420 Mass. 1502 (1995), for a required finding of not
guilty, which the judge denied. This appeal followed.
4 The judge struck the trooper's testimony opining that the
substance was marijuana.
5
Discussion. 1. Opinion testimony. The defendant argues
that the trooper improperly testified that the defendant "was
under the influence of alcohol and marijuana." The defendant
contends that because the Commonwealth presented no expert
testimony explaining "which of the two disjunctively enumerated
substances . . . caused the alleged impairment . . . or whether
both operated in tandem," the OUI conviction "cannot stand." He
asserts that because the necessity for expert testimony is a
question of law, our review should be "de novo." However, the
defendant did not raise that question of law at trial, and thus
he did not preserve it for appellate review.
Before trial, defense counsel informed the judge, "There
was no . . . motion in limine just because it's hard for me to
anticipate exactly what the trooper is going to say, but I will
give your Honor the head's up that I probably will lodge a fair
number of objections to the trooper's testimony about the OUI
drugs portion." On direct examination, after describing the
defendant's performance on field sobriety tests, the trooper
testified:
THE PROSECUTOR: "So at that point did you form an opinion
as to the defendant's sobriety?"
TROOPER CLARK: "Yes, I did."
THE PROSECUTOR: "And what is that opinion?"
TROOPER CLARK: "I formed the opinion that [the defendant]
was under the influence of alcohol and marijuana. I placed
him under arrest."
6
DEFENSE COUNSEL: "Objection."
THE COURT: "No, it will be overruled. The jury may
consider that." (Emphasis added.)
Defense counsel did not specify the grounds for his objection
and did not argue -- then or at any point before or during
trial -- that the trooper should not be permitted to opine that
the defendant was under the influence of marijuana. Contrast
Commonwealth v. Smith, 95 Mass. App. Ct. 437, 438 (2019)
(defendant moved in limine to preclude police from opining as to
whether he was under influence of marijuana). Instead, his
subsequent argument on the required findings motion -- which he
reiterates on appeal -- was that the trooper's opinion was
inadmissible because it was based on the "intermingling" of
intoxicants. In these circumstances, it is doubtful that the
defendant preserved for appellate review the admissibility of
the trooper's opinion that the defendant was under the influence
of marijuana. Cf. Commonwealth v. Grady, 474 Mass. 715, 720-721
(2016) (defendant's motion in limine to preclude substitute drug
analyst from testifying did not preserve objection to specific
question as to weight of substance). Even were we to consider
the issue preserved and review for prejudicial error, we would
find none. Because the jury acquitted the defendant of OUI-
marijuana, he was not prejudiced by the trooper's inclusion of
the words "and marijuana" in his opinion.
7
Since this trial, Gerhardt has made clear that it is
impermissible for a police officer not qualified as an expert5 to
testify that a defendant was under the influence of marijuana,
or that certain symptoms evidenced marijuana use. 477 Mass. at
785-787. Contrast Commonwealth v. Morse, 468 Mass. 360, 377
(2014) (drug recognition expert "testified to the typical
physical and cognitive consequences of ingesting marijuana and
alcohol"). We trust that, after Gerhardt, the Commonwealth
would not offer a police officer's lay opinion that an
individual was "under the influence of . . . marijuana," as
Trooper Clark testified here, nor would it offer a nonexpert's
testimony attempting to explain the physiological effects of
marijuana use.6
5 Trooper Clark testified that he was trained in how to recognize
the symptoms of marijuana usage and impairment, but did not
assert that he was qualified as a drug recognition expert.
6 For example, over the defendant's objection, Trooper Clark
testified that "in some cases the THC . . . draws blood out to
the capillaries that cause that red, rosy . . . facial look and
the red bloodshot eyes," and that the defendant's carotid artery
was "palpitating back and forth at a high rate of speed . . .
indicative of there being . . . control[led] substances on board
. . . causing that reaction along with the profuse sweating."
That testimony was impermissible. See Gerhardt, 477 Mass. at
786 ("Where there is no scientific consensus on what, if any,
physical characteristics indicate marijuana intoxication, no lay
opinion can be admissible as common knowledge or understanding
on that subject"). Cf. Commonwealth v. Frangipane, 433 Mass.
527, 535 (2001) (social worker not qualified to testify about
how trauma victim stores memory, which involved physical
functioning of brain). See Mass. G. Evid. § 702 (2022). The
defendant does not find fault on appeal with that specific
8
Gerhardt made clear, however, that a police officer may
testify to observations of a defendant's performance on the one-
legged stand and the walk-and-turn "as evidence of [his]
balance, coordination, ability to retain and follow directions,
and ability to perform tasks requiring divided attention, and
the presence or absence of other skills necessary for the safe
operation of a motor vehicle." 477 Mass. at 783. Contrast id.at 783 n.18. "[T]hat marijuana can cause impairment of skills
necessary to driving, such as coordination, concentration, and
the ability to divide one's attention among multiple tasks, is
within the common experience and knowledge of jurors." Id. at
784. The officer may not, however, opine that the defendant's
performance on the one-legged stand or walk-and-turn showed that
he was under the influence of marijuana. Id. at 784 & n.19.
Here, Trooper Clark permissibly testified that the one-legged
stand and the walk-and-turn were "divided-attention tests" that
were designed to assess a person's physical ability to perform
certain actions, and also the person's mental ability to listen
to and follow instructions. Trooper Clark also permissibly
described "his observation of what the defendant did." Smith,
95 Mass. App. Ct. at 439.
testimony, and so we do not reach the issue raised in Smith, 95
Mass. App. Ct. at 441-442, as to whether Gerhardt applies
retroactively.
9
As to the argument that the OUI conviction cannot stand
because the trooper's opinion did not specify whether alcohol,
marijuana, or both caused the defendant's impairment, it is
unavailing. As a matter of law, the Commonwealth was not
required to prove that alcohol was "the sole or exclusive cause"
of a defendant's impairment, but only that it was "one
contributing cause of the diminished ability." Commonwealth v.
Stathopoulos, 401 Mass. 453, 457 (1988). See Commonwealth v.
Bishop, 78 Mass. App. Ct. 70, 75 (2010) ("to find guilt, the
jury need only . . . find that the liquor contributed to the
defendant's impairment" [quotation omitted]). At defense
counsel's request, the judge declined to give a model jury
instruction pertaining to cases where there is evidence of both
alcohol and drug use.7 Merely because the judge did not give
7 That model jury instruction states:
"If the Commonwealth has proved beyond a reasonable doubt
that the defendant's ability to operate safely was
diminished by alcohol, then he (she) has violated the law
even if some other factor tended to magnify the effect of
the alcohol or contributed to his (her) diminished capacity
to operate a vehicle safely. Alcohol need not be the only
exclusive cause. It is not a defense that there was a
second contributing cause so long as alcohol was one of the
causes of the defendant's diminished capacity [to] operate
safely."
Criminal Model Jury Instructions for Use in the District Court
5.310 (2019), supplemental instruction 5, citing Bishop, 78
Mass. App. Ct. at 74-75. See Stathopoulos, 401 Mass. at 456
n.4.
10
that instruction did not mean that the Commonwealth was required
to prove which substance caused the defendant's impairment. We
presume that the jury followed the judge's instruction on the
OUI charge that the Commonwealth was required to prove that the
defendant's "ability to drive safely was diminished by alcohol."
Beyond that, because the effects of marijuana "vary greatly
amongst individuals," Gerhardt, 477 Mass. at 786, it may not be
possible for even a medical expert to parse which symptoms
exhibited by a defendant are attributable to alcohol
intoxication and which to marijuana intoxication. Nor, after
Gerhardt, would it be permissible for a police witness to do so.
We conclude that the trooper's testimony opining that the
defendant "was under the influence of . . . marijuana" did not
create a substantial risk of a miscarriage of justice. That
opinion did not prejudice the defendant because the jury
acquitted him of OUI-marijuana. The evidence proving OUI was
"very strong, if not overwhelming." Commonwealth v. Moreno, 102
Mass. App. Ct. 321, 328 (2023). See id. at n.9. The defendant
collided with another car, had a dazed expression, smelled of
alcohol, admitted he had drunk two beers, did not know how far
he was from home or what time it was, and could not perform the
one-legged stand and walk-and-turn.
2. "Constructive amendment" of complaint. The defendant
argues that, by permitting the trooper to testify that the
11
defendant "was under the influence of alcohol and marijuana,"
the judge constructively amended the complaint. He contends
that because one count alleged that he was under the influence
of "intoxicating liquor," and the other alleged that he was
under the influence of "mari[j]uana," "the two substances were
mutually exclusive," but the Commonwealth impermissibly advanced
a theory that the defendant's impairment resulted from the
"combined ingestion of both substances -- alcohol and
marijuana." We are not persuaded.
Here, the trooper's single-sentence opinion that the
defendant was under the influence of "alcohol and marijuana" did
not equate to advancing a new theory of culpability. As
explained above, Stathopoulos, 401 Mass. at 457, makes clear
that the defendant's impairment by alcohol was not "mutually
exclusive" of his possible impairment by marijuana. The
defendant knew in advance of trial that the Commonwealth was
charging him with both OUI and OUI-marijuana: the complaint set
forth each of those crimes in separate counts. Contrast
Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 75-76 & n.7
(2005) (vague reference in medical record to unquantified amount
of amphetamine in defendant's system was "surprise" prosecution
theory, and did not provide basis to prove it impaired
defendant's ability to drive). See Commonwealth v. Williams, 73
Mass. App. Ct. 833, 836 (2009) (after bench trial, judge
12
improperly amended count charging operating motor vehicle so as
to endanger to motor vehicle homicide by negligent operation).
Cf. Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 347 (2005)
(instruction that jury could convict even if alcohol was only
contributing cause of the defendant's impairment, or its effect
was magnified by another cause, did "not equate to charging the
jury on a separate theory of culpability").
Judgment affirmed.
By the Court (Neyman,
Desmond & Grant, JJ.8),
Clerk
Entered: March 28, 2023.
8 The panelists are listed in order of seniority.
13