Commonwealth v. Keverian

1

COMMONWEALTH v. JACK N. KEVERIAN.

No. 21-P-275

Appeals Court of Massachusetts

March 28, 2023

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

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 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.

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 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.

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.

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."

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.

Since this trial, Gerhardt has made clear that it is impermissible for a police officer not qualified as an expert^[5] 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...