Commonwealth v. Giancarlo D. Mazariegos-Perez.

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

22-P-114

COMMONWEALTH

vs.

GIANCARLO D. MAZARIEGOS-PEREZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Giancarlo D. Mazariegos-Perez, was convicted of

operating a motor vehicle while under the influence of liquor

(OUI). 1 On appeal, he contends that the admission of a trooper's

opinion testimony, and the prosecutor's use of that testimony in

closing argument, constituted reversible error. We affirm.

Background. On January 29, 2021, at approximately 12:19

A.M., Massachusetts State Police Trooper Harold Sousa was

dispatched to a two-car crash on Route 16 in Everett. On

arrival he observed a Toyota Corolla "with substantial front-end

damage" located behind a Ford Fusion "with substantial rear-end

1 The defendant was also charged with negligent operation of a
motor vehicle. Prior to the start of trial, the judge dismissed
that charge. The defendant was found not responsible for a
civil motor vehicle infraction.
damage." The front of the hood on the Toyota "was bent in; the

grill was severely damaged." Trooper Sousa noticed that the

operator of the Toyota, later identified as the defendant, "was

emitting the odor of an alcoholic beverage, and his eyes were

bloodshot and glassy." He further noted that the defendant "was

difficult to understand because his speech was slurred." The

defendant admitted that "he had two drinks to celebrate . . .

graduating IT School."

After speaking with the operators of both vehicles, Trooper

Sousa asked the defendant to perform field sobriety tests.

Trooper Sousa first explained and then physically demonstrated

for the defendant the nine-step walk and turn test. The

defendant took the test. He walked sixteen steps instead of

nine, "missed heel-to-toe on every step, essentially taking

normal strides" in contravention of Trooper Sousa's instructions

and demonstration, shuffled his feet on the turn, took twelve

steps instead of nine on the return, and "missed heel-to-toe on

every step" again. Next, Trooper Sousa explained and

demonstrated for the defendant the one-leg stand test. The

defendant "raised his right foot six inches above the ground,

counted to three, and then put it down forward, taking somewhat

of a step, and then raised his left foot, and . . . started to

count again." After three attempts, the defendant "finally did

complete the test as instructed," but "he swayed side-to-side,

2
and put his foot down twice," and "almost fell over." Based on

his observations of the defendant, including the performance on

the field sobriety tests, Trooper Sousa formed the opinion that

the defendant was under the influence of alcohol. He then

placed the defendant in the police cruiser and transported him

to the police barracks. On opening the door to the cruiser to

escort the defendant to the booking room, Trooper Sousa noted an

odor of an alcoholic beverage that was not present "before the

defendant got in the car."

During the booking process, the defendant became angry,

cursed at Trooper Sousa, told Trooper Sousa that "this is taking

way too long," and asked "[a]re you doing this on purpose, or

are you just an idiot?" He then stated, "[y]ou're probably just

an idiot." Later during the booking process, the defendant

cried and stated that "he knew he had messed up, but he only had

two beers." "During booking," Trooper Sousa continued to note

an odor of an alcoholic beverage coming from the defendant, as

well as other signs of impairment.

Discussion. On direct examination, Trooper Sousa testified

that while at the State police academy, he received one week of

training related to field sobriety testing and the investigation

of people suspected of driving under the influence of alcohol.

The testimony was brief, and the defendant did not object to it.

Later in the trial, Trooper Sousa was asked whether he had

3
formed an opinion regarding the defendant's sobriety. Over the

defendant's objection, Trooper Sousa responded that based on his

observations of the defendant at the scene as well as the

defendant's performance on the field sobriety tests, he formed

the opinion that the defendant "was under the influence of an

alcoholic beverage."

The defendant argues, for the first time, that in eliciting

Trooper Sousa's specialized training and experience in the field

of OUI investigations, the prosecutor effectively transformed

the trooper into an expert witness in the eyes of the jury. 2 He

further contends that the judge did not provide the jury with

adequate instructions on the proper use of the trooper's

"expert" opinion, and thus the conviction must be vacated.

Where the defendant did not raise the issue of improper expert

testimony at trial, and did not object to the judge's jury

instructions at trial, we review to determine if there was

error, and if so, whether it created a substantial risk of a

2 The defendant did not object to Trooper Sousa's testimony
regarding his training and experience, did not state the basis
for his objection to Trooper Sousa's opinion as to the
defendant's sobriety, and did not move to strike Trooper Sousa's
testimony. The objection to the question and testimony now
challenged on appeal did not preserve the issue of alleged
"improper expert testimony," raised for the first time on
appeal. See Commonwealth v. Bonds, 445 Mass. 821, 828 (2006)
("We have consistently interpreted Mass. R. Crim. P. 22, 378
Mass. 892 [1979], to preserve appellate rights only when an
objection is made in a form or context that reveals the
objection's basis").

4
miscarriage of justice. See Commonwealth v. Moreno, 102 Mass.

App. Ct. 321, 324 (2023), citing Commonwealth v. Bonds, 445

Mass. 821, 828 (2006).

"In a prosecution for operating a motor vehicle while under

the influence of alcohol, lay witnesses, including police

officers, may not opine as to the ultimate question whether the

defendant was operating while under the influence, but they may

testify to his apparent intoxication." Commonwealth v. Canty,

466 Mass. 535, 541 (2013), quoting Commonwealth v. Jones, 464

Mass. 16, 17 n.1 (2012). Here, the question called for Trooper

Sousa to offer an admissible lay opinion, and thus the testimony

was permissible. See Moreno, 102 Mass. App. Ct. at 325-326.

Cf. Canty, supra.

As to the defendant's claim that the judge's instructions

were somehow inadequate, the defendant did not object to any

jury instructions, including the judge's thorough instructions

regarding opinion testimony and field sobriety testing. We

further note that the defendant made no request for any

instructions regarding expert witness testimony. Trooper Sousa

was certainly permitted to testify about his training and

experience so that the jury could conclude that the field

sobriety tests were administered properly by someone who knew

how to administer them. Had the defendant requested an

instruction to the effect that the officer's opinion regarding

5
the defendant's level of sobriety or intoxication was not an

expert opinion based on scientific, technical, or other

specialized knowledge, but, rather, was a lay opinion that the

jury could accept, accept in part, or reject -- as with any

other admissible lay opinion testimony -- the judge would have

been warranted in providing it. Nonetheless, the judge's

failure to give one sua sponte did not create a substantial risk

of a miscarriage of justice because the case against the

defendant was strong: It included his rear-ending another car,

smelling of alcohol, having glassy eyes and slurred speech, and

failing two field sobriety tests; as well as his swaying, almost

falling down, and labile moods. We further note that any risk

of prejudice to the defendant was diminished by the judge's

explicit final instruction to the jury that they ultimately must

determine whether the defendant was under the influence of

alcohol, and that they may consider any opinion they heard about

the defendant's sobriety "and accept it or reject it." See

Canty, 466 Mass. at 545.

As to the prosecutor's closing argument, even assuming

arguendo that the prosecutor should not have referenced Trooper

Sousa's training and experience, we discern no substantial risk

of a miscarriage of justice. 3 Again, the evidence in the case

3 The defendant did not object to the prosecutor's reference in
closing argument to Trooper Sousa's training and experience.

6
was strong. See Commonwealth v. Saulnier, 84 Mass. App. Ct.

603, 607 (2013). In addition, the judge repeatedly and properly

instructed the jury to rely on their own common sense and

experience, including their common sense and experience

concerning the effects of alcohol. See Commonwealth v. Sands,

424 Mass. 184, 188 (1997) ("A lay juror understands that

intoxication leads to diminished balance, coordination, and

mental acuity from common experience and knowledge"). Finally,

the judge instructed the jury four separate times that closing

arguments are not evidence and cannot be considered when the

jury is weighing evidence. The instructions were comprehensive

and clear, and we presume the jury followed them. See

Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013).

Accordingly, there was no substantial risk of a miscarriage of

justice based on the alleged improper opinion testimony.

Judgment affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ. 4),

Clerk

Entered: October 19, 2023.

4 The panelists are listed in order of seniority.

7