Commonwealth v. Emer Robles.

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-333

COMMONWEALTH

vs.

EMER ROBLES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant, Emer Robles, appeals

from his conviction of operating under the influence of

intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1) (OUI).1 The

defendant argues that (1) a State police trooper improperly

opined on the ultimate issue before the jury by testifying that

the defendant "was under the influence of intoxicating liquor"

and "unsuccessful" in completing field sobriety tests (FSTs),

and (2) trial counsel provided the defendant with ineffective

assistance of counsel by failing to object to the trooper's

testimony or to request a curative instruction. We affirm.

1 A finding that the defendant was responsible for possessing an
open container of alcohol in a motor vehicle, G. L. c. 90,
§ 24I, was placed on file with the defendant's consent, and so
is not before the court on appeal. See Commonwealth v. McCravy,
430 Mass. 758, 759 n.1 (2000).
Background. At about 10:30 P.M. on April 20, 2018, Trooper

Christopher Amate conducted a routine check of the registration

of a motor vehicle being driven on Western Avenue in Lynn,

learned that its registered owner was unlicensed, and activated

the blue lights of his marked cruiser. The vehicle pulled over.

The defendant was the driver, and a passenger was in the

front seat. When the trooper approached the vehicle, he

"immediately smelt an odor of alcohol." The trooper saw an open

can and asked the defendant what it was; the defendant handed it

to the trooper. It was a half-full can of beer, and there were

four more empty beer cans in the front passenger's seat. As the

defendant spoke, the trooper noticed an odor of alcohol on his

breath. Asked if he had been drinking, the defendant responded

that he had a couple of beers that night. The defendant "looked

exhausted," as if he could not keep his eyelids open, and had

"bloodshot, glassy eyes." Based on these observations, the

trooper asked the defendant to get out of the vehicle. As the

defendant did so, he was swaying and used the car door to

maintain his balance.

Asked if he understood English, the defendant replied that

he "absolutely could," and responded appropriately to the

trooper's questions. The trooper instructed the defendant twice

on how to perform the nine-step walk-and-turn test, and the

defendant said that he understood. During that test, the

2
defendant swayed back and forth, did not count out loud, did not

keep his hands by his side, and stopped after the first nine

steps and put his hands up in the air. The trooper considered

that an "unsuccessful completion" of the nine-step walk-and-turn

test.

The trooper then described how to perform the one-leg stand

test, telling the defendant he could choose which foot to stand

on and could count in Spanish if he chose. The defendant said

that he understood the instructions. During that test, the

defendant was unable to keep his foot off the ground for more

than two seconds. The defendant tried doing it on the other

foot, and could not perform the test on that foot either. In

the trooper's opinion, that was an "unsuccessful completion" of

the one-leg stand test.

The trooper testified that based on all of his

observations, he "thought [the defendant] was under the

influence of an intoxicating liquor." When questioned further,

the trooper stated, "I didn't think he was sober." The

defendant was placed under arrest and taken to a nearby sobriety

checkpoint to start the booking process.

Through an interpreter, the defendant testified that on

April 20, 2018 he worked all day and was at home with his

children when his friend, who had been drinking, asked for a

ride. The defendant testified that he only drank "half a beer,"

3
and that the empty beer cans in the vehicle belonged to the

vehicle's owner. The defendant testified that he did not

understand the instructions for the FSTs and was never offered a

Spanish interpreter. He admitted that he was tired and that he

grabbed the car door, but denied that he was swaying.

Discussion. 1. Opinion testimony. The defendant argues

that the trooper improperly testified that he "thought [the

defendant] was under the influence of an intoxicating liquor."

The defendant contends that this testimony improperly opined on

the "ultimate question" of whether the defendant was operating

while under the influence, citing Commonwealth v. Canty, 466

Mass. 535, 541 (2013). The defendant further argues that the

trooper improperly testified that the defendant was

"unsuccessful" in completing both FSTs, citing to Commonwealth

v. Gerhardt, 477 Mass. 775, 786-787 (2017).

The defendant did not object to the trooper's testimony,

and so we review to determine if there was error, and, if so,

whether any such error created a substantial risk of a

miscarriage of justice. See Commonwealth v. Moreno, 102 Mass.

App. Ct. 321, 324 (2023). There was no error. Like any lay

witness, the officer could opine based on his observations about

the defendant's level of intoxication. See Canty, 466 Mass. at

540; Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012) (police

officer may testify to defendant's "apparent intoxication" in

4
OUI prosecution). See also Mass. G. Evid. § 701 (2023). The

trooper did not opine on the "ultimate question" of whether the

defendant's intoxication impaired his ability to drive. See

Canty, 466 Mass. at 541.

As for the trooper's testimony that the defendant was

"unsuccessful" in completing the FSTs, it did not amount to

error creating a substantial risk of a miscarriage of justice.

A police officer may testify to observations of a defendant's

performance on FSTs. See Commonwealth v. Brown, 83 Mass. App.

Ct. 772, 774 n.1 (2013) ("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. Gerhardt, 477 Mass. at 787 ("[p]olice

officers may not testify to the administration and results of

FSTs [in OUI marijuana prosecutions] as they do in [OUI] alcohol

prosecutions"). The trooper's testimony that defendant was

"unsuccessful" in completing the FSTs was proper observation

testimony that Gerhardt explicitly allows. Id. at 783 ("a

police officer may testify, as a lay witness, to his or her

observations of the defendant's performance" on FSTs).

Moreover, the judge's instructions ensured that the jurors

would use the trooper's opinion testimony as to both the

defendant's intoxication and his unsuccessful performance on the

FSTs for their proper purpose. Paraphrasing the Criminal Model

5
Jury Instructions for Use in the District Court 5.310 (2009),

the judge instructed the jurors that it was for "[them] and

[them] alone" to decide whether the defendant was under the

influence of alcohol, and that they could "accept or reject" the

trooper's testimony about the defendant's performance on the

FSTs. Cf. Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390

(2017) (similar instruction diminished prejudice from trooper's

improper opinion testimony that defendant's intoxication

impaired ability to operate motor vehicle).

2. Ineffective assistance of counsel. The defendant

argues that he was deprived of effective assistance of counsel

because his attorney failed to object to the trooper's testimony

and failed to request a specific curative jury instruction. In

assessing whether counsel's performance deprived the defendant

of his right to effective assistance of counsel, we apply the

Saferian standard: whether that performance fell "measurably

below that which might be expected from an ordinary fallible

lawyer," and "whether it has likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The

defendant's raising of his claim of ineffective assistance for

the first time on direct appeal makes it the "weakest form" of

such a claim, "because 'it is bereft of any explanation by trial

counsel for his actions and suggestive of strategy contrived by

6
a defendant viewing the case in hindsight.'" Commonwealth v.

Diaz, 448 Mass. 286, 289 (2007), quoting Commonwealth v.

Peloquin, 437 Mass. 204, 210 n.5 (2002). In those

circumstances, we may resolve it only where "the factual basis

of the [ineffective assistance] claim appears indisputably on

the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811

(2006), quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339,

344 (1994). Based on our review of the trial record, we discern

nothing manifestly unreasonable about counsel's tactical

decisions.2 Because the trooper's testimony did not create a

substantial risk of a miscarriage of justice, trial counsel was

not ineffective for failing to object to that testimony. See

Commonwealth v. Kirwan, 448 Mass. 304, 315 (2007).

Judgment affirmed.

By the Court (Neyman, Grant &
Hershfang, JJ.3),

Clerk

Entered: June 12, 2023.

2 As for the defendant's claim that his trial counsel should have
requested "a specific curative instruction that might have
lessened the impact" of the trooper's opinion testimony, as
mentioned above, the judge gave such an instruction.
3 The panelists are listed in order of seniority.

7