Commonwealth v. Patrick J. O'shea.

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

24-P-501

COMMONWEALTH

vs.

PATRICK J. O'SHEA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Patrick J. O'Shea, was convicted of operating a motor

vehicle under the influence of intoxicating liquor (OUI), G. L.

c. 90, § 24 (1) (a) (1). 1 On appeal, he argues that (1) the

evidence was insufficient, (2) errors in jury empanelment

deprived him of a fair trial, (3) certain testimony was admitted

1The defendant was charged with OUI, third offense, in
violation of G. L. c. 90, § 24 (1) (a) (1), operating with a
license suspended for OUI, in violation of G. L. c. 90, § 23,
and possession of an open container of alcohol in a motor
vehicle, in violation of G. L. c. 90, § 24I. After the jury
convicted the defendant of OUI, the judge convicted him of the
subsequent (third) offense portion of the OUI charge and
operating with a license suspended for OUI. The Commonwealth
dismissed the open container charge.
in error, (4) trial counsel was ineffective, and (5) the

cumulative effect of these errors requires reversal. We affirm.

Background. On August 19, 2022, at approximately 7:45

P.M., a Billerica police officer responded to a report about an

unconscious man in the parking lot of the Turnpike Market. On

arrival, the officer saw several people standing at the driver's

side window of a car that was positioned "awkwardly" and "not

directly straight in" the demarcated parking space. The

transmission was in park, the engine was running, and the keys

were in the ignition. The officer found the defendant

unconscious in the driver's side seat with "saliva coming out of

his mouth."

After unsuccessful attempts to rouse the defendant by

tapping his shoulder and calling out, the officer performed a

sternum rub. The defendant then awoke "dazed and confused," and

slurred his speech as the officer spoke with him. As the

defendant stepped out of the car, the officer noticed that he

was unsteady on his feet; the defendant held onto the car door

to keep himself upright as the officer guided him to the front

of the car. He had difficulty answering the officer's questions

about where he lived and how far he was from home. When the

officer asked what the defendant had been doing that day, the

defendant answered that he had been drinking earlier at work.

The officer noted an empty nip bottle of alcohol in the driver's

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side door panel and several unopened nip bottles on the

passenger's side seat and in the center console. The officer

arrested the defendant for OUI and transported him to the

Billerica police station.

During the booking process, the booking sergeant noted that

the defendant exhibited signs of being under the influence of

alcohol, including delayed responses to questioning, slurred

speech, and unsteadiness on his feet. The sergeant also

detected a slight odor of alcohol on the defendant.

Discussion. 1. Sufficiency of the evidence. We review a

challenge to the sufficiency of the evidence to determine

whether, after viewing the evidence in the light most favorable

to the Commonwealth, "any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt." Commonwealth v. Colas, 486 Mass. 831, 836 (2021),

quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To

support an OUI conviction, the Commonwealth must prove that the

defendant (1) operated a vehicle, (2) on a public way, (3) while

under the influence of alcohol. See Commonwealth v. Palacios,

90 Mass. App. Ct. 722, 728 (2016). The defendant challenges

only the third element, which required the Commonwealth to

"prove beyond a reasonable doubt that the defendant's

consumption of alcohol diminished [his] ability to operate a

motor vehicle safely" (emphasis omitted). Commonwealth v.

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Rarick, 87 Mass. App. Ct. 349, 352 (2015), citing Commonwealth

v. Connolly, 394 Mass. 169, 173 (1985). The defendant contends

that the Commonwealth failed to meet this burden. We are not

persuaded.

Here, the arresting officer testified that the defendant

was passed out in the driver's seat and had to be awoken by a

sternum rub; his speech was slurred; he had an empty nip bottle

of alcohol in the driver's side panel; he admitted that he had

been drinking earlier at work; he was so unsteady on his feet

that he needed to hold onto his car for support; and he had

parked his car "awkwardly" and "not directly straight in" the

lines of the parking space. Compare Commonwealth v. Gallagher,

91 Mass. App. Ct. 385, 392-393 (2017) (defendant showed "classic

symptoms of alcohol intoxication," including, inter alia,

slurred speech; parking "crooked[ly]" or "diagonally" across two

parking spaces; swaying and inability to stand straight; and

admitting to drinking three beers). Additionally, the booking

sergeant noted that the defendant slurred his speech during the

booking process, appeared disheveled and was unsteady on his

feet, and the sergeant could smell a mild odor of alcohol

emanating from the defendant. See Commonwealth v. Lavendier, 79

Mass. App. Ct. 501, 506-507 (2011) (noting "obvious" signs of

intoxication where defendant had, among other indicators,

"strong odor of alcohol, poor balance, and glassy, bloodshot

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eyes"). The totality of the evidence, viewed in the light most

favorable to the Commonwealth, sufficed beyond a reasonable

doubt to prove that the defendant was under the influence of

alcohol and that his intoxication diminished his ability to

safely operate a motor vehicle.

2. Jury empanelment. The defendant argues that it was

prejudicial error for the judge not to excuse for cause two

jurors (juror no. 77 and juror no. 86) who, the defendant

contends, "clearly demonstrated bias" against him (particularly

as compared to juror no. 76, who was removed for cause) and did

not unequivocally state that they could impartially evaluate the

evidence. 2 We disagree. As an initial matter, while the

defendant objected to the phrasing of a follow-up question to

juror no. 77, he did not expressly ask that the judge remove

either juror no. 77 or juror no. 86 for cause. Also, both

jurors unequivocally stated that they could be fair and

impartial.

In any event, even assuming, without deciding, that there

was error, we discern no prejudice. "A trial judge is accorded

considerable discretion in the jury selection process and his

2 The defendant's brief makes passing references to "three
jurors" who "remain[ed]" on the jury but discusses only two:
juror no. 77 and juror no. 86. To the extent the defendant is
raising a third challenge, any such challenge does not rise to
the level of adequate appellate argument and is waived.

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finding that a juror stands indifferent will not be disturbed

except where juror prejudice is manifest." Commonwealth v.

Clark, 446 Mass. 620, 629-630 (2006). When a defendant claims

that the trial judge erroneously failed to remove a juror for

cause, "prejudice generally is shown by the use of a peremptory

challenge to remove [that] juror . . . together with evidence

that the defendant later was forced to accept a juror he would

have challenged peremptorily but was unable to because his

peremptory challenges had been exhausted." Commonwealth v.

McCoy, 456 Mass. 838, 842 (2010).

Here, as to both contested jurors, the defendant had a

peremptory challenge available to him that he failed to exercise

and stated twice that he was satisfied with the jury. See

Commonwealth v. Morales, 440 Mass. 536, 543 (2003) (expression

of satisfaction with seated jurors and failure to exhaust

peremptory challenges belies claim of partiality); Commonwealth

v. Nelson, 91 Mass. App. Ct. 645, 647-648 (2017) (no prejudice

where defendant did not peremptorily challenge contested juror,

did not ask for additional peremptory challenges, and

affirmatively accepted jury). As the defendant chose not to

peremptorily challenge either juror, and ultimately did not

exhaust his peremptory challenges, "we are unable to conclude

that the defendant 'was forced to accept a juror whom he

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otherwise would have challenged peremptorily.'" Id. at 648,

quoting Commonwealth v. Susi, 394 Mass. 784, 789 (1985).

3. Evidentiary issues. a. Impairment testimony. The

defendant contends that the arresting officer improperly

testified to the ultimate issue of impairment to operate a motor

vehicle. Lay witnesses, such as police officers, testifying in

an OUI case may offer their opinion on "a defendant's level of

sobriety or intoxication but may not opine whether a defendant

operated a motor vehicle while under the influence of alcohol or

whether the defendant's consumption of alcohol diminished his

ability to operate a motor vehicle safely." Commonwealth v.

Canty, 466 Mass. 535, 544 (2013). The latter comes too close to

providing an opinion on the ultimate issue of guilt or

innocence. See id. at 542-543.

The defendant bases his argument on three statements:

first, on direct examination, the officer testified that

"slurred speech would be one of the [tell-tale] signs of someone

that's been operating under the influence"; second, in answer to

the prosecutor's question whether she had formed an opinion as

to the defendant's intoxication, the officer stated that based

on her observations, the defendant "was arrested for operating

under the influence"; and third, on cross-examination, the

officer noted that the defendant was "showing signs from [her]

training and experience of operating under the influence." None

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of these statements was the subject of an objection or a motion

to strike; accordingly, we review only to determine whether any

error gave rise to a substantial risk of a miscarriage of

justice. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603,

606-607 (2013).

Assuming that this was error, we are not persuaded that the

testimony created a substantial risk of a miscarriage of

justice. Here, as in Canty, several factors mitigate "the risk

of prejudice arising from the admission of an opinion that

closely touches on the ultimate issue of guilt." 466 Mass. at

545. The officer offered her opinion as a lay witness, which,

even when presented by a police officer, renders it "less likely

that a jury would forego independent analysis of the facts and

bow too readily to the opinion" (quotation and citation

omitted). Id. This risk was further diminished by the judge's

specific instruction that it was for the jury alone "to

determine whether the defendant was under the influence of

alcohol," and to accept or reject any opinion testimony they

heard -- an instruction mirroring that given in Canty. See id.

See also Commonwealth v. Dufresne, 489 Mass. 195, 208 (2022).

Moreover, as discussed supra, the Commonwealth presented

compelling evidence, beyond the improper opinion testimony,

"that the defendant's intoxication impaired [his] ability to

operate a motor vehicle." Gallagher, 91 Mass. App. Ct. at 390.

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And, while the defendant points to three lines of testimony

referencing operating under the influence, one was in the

context of identifying the underlying charge for the arrest, a

fact of which the jury were apprised during the initial jury

charge, and another was elicited by the defense attorney on

cross-examination, see Commonwealth v. Saunders, 75 Mass. App.

Ct. 505, 510 (2009) (no error where defendant "opened the door"

to unfavorable testimony during cross-examination). We discern

no risk that justice miscarried.

b. Expert testimony. The defendant additionally argues

that it was prejudicial error for the arresting officer to

testify that alcohol is odorless, a fact the officer testified

to during defense counsel's cross-examination, based on "what

[had] been explained [to her by] a doctor." He contends that

this statement amounted to impermissible expert testimony about

"scientific information [the officer] had garnered from an

unknown doctor." Because the defendant objected at trial, we

review for prejudicial error. See Commonwealth v. Cruz, 445

Mass. 589, 591 (2005).

An error is not prejudicial where it "did not influence the

jury, or had but very slight effect" (citation omitted).

Commonwealth v. Colina, 495 Mass. 13, 38 (2024). Here, the

challenged testimony was brief, the judge sustained defense

counsel's objection, and the judge instructed the jury during

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preliminary jury instructions that where an objection was

sustained, the jury "may not consider the answer in any way

whatsoever." As "'[w]e presume that the jury follow the judge's

instructions,' including instructions to disregard testimony,"

this mitigated any risk of prejudice. Dufresne, 489 Mass. at

208, quoting Commonwealth v. Cortez, 438 Mass. 123, 130 (2002).

4. Ineffective assistance of counsel. The defendant

claims that trial counsel was ineffective for (1) introducing

video footage of the booking process during cross-examination of

the booking sergeant, and (2) failing to exhaust his peremptory

challenges. Generally, to prevail on an ineffective assistance

of counsel claim a defendant must demonstrate that, but for his

counsel's "serious incompetency, inefficiency, or inattention,"

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), "the result

of the proceeding would have been different." Commonwealth v.

Mahar, 442 Mass. 11, 15 (2004), citing Strickland v. Washington,

466 U.S. 668, 694 (1984). Here, the claim is presented in its

"weakest form," as it is asserted for the first time on direct

appeal rather than through a motion for new trial, leaving us

without the benefit of an affidavit from trial counsel or

findings on the matter from the trial judge. Commonwealth v.

Peloquin, 437 Mass. 204, 210 n.5 (2002). We address such claims

on direct appeal only "when the factual basis of the claim

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appears indisputably on the trial record" (citation omitted).

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).

a. Booking video footage. The defendant contends that by

playing the booking video footage during cross-examination of

the booking sergeant, rather than during the defendant's case-

in-chief, trial counsel was ineffective because doing so

deprived the judge of "the opportunity to determine if the

Commonwealth's case had deteriorated." We are not persuaded.

The defendant fails to show that the outcome would have

been different. See Mahar, 442 Mass. at 15. "Deterioration

does not occur simply because the defendant presented evidence

that contradicted the Commonwealth's case." Commonwealth v.

Nhut Huynh, 452 Mass. 481, 485 (2008). Rather, the contrary

evidence must have been "so overwhelming that no rational jury

could conclude that the defendant was guilty." Commonwealth v.

O'Laughlin, 446 Mass. 188, 204 (2006). At most, the video

footage demonstrated to the jury that the defendant was able to

stand and walk unassisted during booking, in contrast to the

booking sergeant's testimony that the defendant was unsteady on

his feet. Even if counsel had elected to present the video

footage during the case-in-chief, based on the totality of the

evidence presented, this would not have shown the Commonwealth's

case to be "incredible or conclusively incorrect." Kater v.

Commonwealth, 421 Mass. 17, 20 (1995), S.C., 432 Mass. 404

11
(2000). Indeed, it was for the jury to resolve any discrepancy

in the evidence. See Commonwealth v. Lopez, 484 Mass. 211, 215

(2020).

b. Peremptory challenges. The defendant further asserts

that trial counsel was ineffective for failing to exhaust his

peremptory challenges. Acknowledging that this was a strategic

decision by counsel, the defendant argues that it was manifestly

unreasonable not to exercise the remaining peremptory challenge

on either of the two contested jurors discussed supra, because

"the evidence was weak and the [jurors'] bias potent." See

Commonwealth v. Kirkland, 491 Mass. 339, 348-349 (2023)

(strategic decisions by counsel evaluated based on whether

manifestly unreasonable when made).

Whether to exercise a peremptory challenge of a particular

juror is a tactical decision left to the judgment of counsel,

see Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 309 (2000),

and it is not manifestly unreasonable where the juror's stated

impartiality was accepted, on inquiry, by the judge. See

Commonwealth v. Torres, 453 Mass. 722, 731 (2009) (counsel not

ineffective for failing to exercise peremptory challenge on

either of two jurors who judge declared impartial, following

inquiry, and counsel confirmed he was satisfied). Here, the

judge conducted a detailed colloquy with both jurors regarding

their ability to impartially evaluate the evidence and follow

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the judge's instructions, during which he had the opportunity to

assess the jurors' inflection and demeanor, and ultimately found

both jurors indifferent. See Commonwealth v. Rios, 96 Mass.

App. Ct. 463, 470-472 (2019). And, as the defendant did not

submit an affidavit from trial counsel, we do not know counsel's

reasons for retaining the peremptory challenge following inquiry

into the jurors' alleged partiality. See Commonwealth v.

Gonzalez, 443 Mass. 799, 809 n.10 (2005) ("It is significant

that there is no affidavit from trial counsel to inform us of

his strategic reasons for these decisions"). We see no

indication on this record that the decision was manifestly

unreasonable.

5. Cumulative error. Finally, the defendant claims the

alleged errors cumulatively deprived him of a fair and impartial

trial. In the context of the evidence taken as a whole, we are

persuaded that "[a]ny cumulative error . . . was 'no more

prejudicial than any individual errors, which had minimal

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impact, if any." Commonwealth v. Lessieur, 488 Mass. 620, 632

(2021), quoting Commonwealth v. Duran, 435 Mass. 97, 107 (2001).

Judgments affirmed.

By the Court (Blake, C.J.,
Shin & Walsh, JJ. 3),

Clerk

Entered: June 23, 2025.

3 The panelists are listed in order of seniority.

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