Commonwealth v. Tariq R. Sabree.

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-881

COMMONWEALTH

vs.

TARIQ R. SABREE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Tariq R. Sabree, appeals from his conviction

in the District Court of operating a motor vehicle while under

the influence of intoxicating liquor (OUI), second offense.1 On

appeal, the defendant argues that there was reversible error

(1) where a police officer testified, over objection, that the

defendant was "operating under the influence," (2) where the

trial judge did not sua sponte instruct the jury as to the

proper use of the officer's opinion testimony, and (3) where the

prosecutor misstated critical evidence and engaged in improper

vouching in his closing argument. We affirm.

1After a jury trial on the underlying charge, the defendant
entered a guilty plea to the second offense portion. "With the
parties' consent," the judge found the defendant not responsible
for a marked lanes violation and improper use of a mobile phone.
Background. a. The incident. Witness David Feeney

testified at trial to the following facts. At approximately

12:30 P.M. on December 14, 2020, Feeney was driving on Center

Street in Easton. A vehicle on a side street failed to stop at

a stop sign and took a wide turn onto Center Street in front of

Feeney. The vehicle, later identified as a black Nissan Maxima,

crossed over the double yellow line before correcting itself to

drive within the lane. About a mile later, the Maxima failed to

negotiate a turn in the road and crashed into a large traffic

island called "the monument." The driver was the only person in

the Maxima, which remained in gear with the front propped up and

the tires spinning. Feeney attempted to speak with the Maxima

driver, but the driver just stared forward blankly. At trial,

Feeney identified the defendant as the Maxima driver.

An Easton police officer testified that on the day and time

in question, he observed a black Nissan Maxima with front-end

damage that had gone up and over the curb at the monument. The

officer spoke with the defendant, who was still sitting in the

driver's seat. The officer detected an odor of alcohol and

noticed the defendant had bloodshot and glassy eyes, slurred

speech, and delayed responses.

The defendant told the officer that he had been texting

while driving when he crashed the Maxima. The defendant also

admitted that he had been drinking, telling the officer that "he

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drank approximately one-quarter of a handle of vodka" and that

his last beverage was at 11 A.M., one hour and forty minutes

before the crash. The officer later found a bottle of one

hundred proof vodka that was approximately sixty percent empty

in the Maxima.

The officer administered field sobriety assessments. On

the nine-step walk-and-turn, the defendant was not touching his

heel to his toe and he did not complete the turn as demonstrated

by the officer. On the return, the defendant stepped off the

line, missed touching his heel to toe on four of the return

steps, raised his arms, and "would not complete all of the nine

steps." The defendant also attempted the one leg stand, during

which he swayed, raised his arms, and placed his foot down on

the ground. The officer permitted the defendant to try again

and the defendant almost fell over while waiting to restart. On

the second attempt, the defendant kept his hands in his pockets,

placed his foot down, swayed, and almost fell over. The officer

discontinued the second attempt for the defendant's safety. The

officer also asked the defendant to recite the alphabet from the

letter C to M. The defendant sang rather than recited and did

not stop at M, instead singing the last five letters "L-M-N-O-P"

as one word. Based on these observations, the officer placed

the defendant under arrest.

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b. Jury instructions. After the prosecutor's closing

argument, defense counsel requested a sidebar conference during

which she raised concerns that the prosecutor had improperly

bolstered the credibility of the testifying officer. The judge

agreed and immediately instructed the jury that:

"[W]hen you're considering the testimony you are to put no
more weight on the evidence of the testimony presented by a
police officer simply by virtue of that person's role as a
police officer than you would have a lay witness. All
right?

"So you would put no higher weight on the testimony offered
by the police officer simply because of the role that he
plays."

During his final charge to the jury, the judge instructed the

jury:

"Your function as the jury is to determine the facts of the
case. You alone determine what evidence you believe, how
important any evidence is that you do believe, and what
conclusions to draw from that evidence."

The judge also instructed the jury that "[i]n evaluating a

witness'[s] testimony you have to decide what testimony to

believe and how much weight to give it."

As part of that charge, the judge instructed the jury on

what they could and could not consider as evidence, including

that opening and closing statements are not evidence and are

"only intended to assist [the jury] in understanding the

evidence and the contentions of each party." The judge also

instructed the jury that it was for the jury to decide whether

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to rely on the field sobriety tests, reject them, or give them

the weight the jury thought they deserved.

At the end of the charge, the judge asked both attorneys

whether they were satisfied with the instructions or whether

they wanted any further instruction. Both attorneys declined.

Discussion. 1. The officer's opinion testimony. The

Commonwealth correctly concedes that the officer's testimony

that the defendant was "operating under the influence" is

prohibited. See Commonwealth v. Canty, 466 Mass. 535, 536

(2013) ("[W]e conclude that a police officer who observed the

defendant may offer an opinion as to the defendant's level of

intoxication arising from the consumption of alcohol, but may

not offer an opinion as to whether the defendant's intoxication

impaired his ability to operate a motor vehicle"); Commonwealth

v. Jones, 464 Mass. 16, 17 n.1 (2012) (same for "lay witnesses,

including police officers"). However, because we conclude that

the error did not prejudice the defendant, we affirm.2

2 The parties disagree as to the applicable standard of
review. Through a discussion at sidebar, defense counsel
articulated the basis of the objection to the officer's
testimony. Considering the adequacy of the objection "in the
context of the trial as a whole," we assume, without deciding,
that the issue was properly preserved for appeal. Jones, 464
Mass. at 19 n.4, quoting Commonwealth v. Koney, 421 Mass. 295,
299 (1995).

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In Canty, the Supreme Judicial Court concluded that a

similar error was not prejudicial3 where there was overwhelming

evidence of the defendant's guilt and the judge explicitly

instructed "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.'" 466 Mass. at 545. This

court similarly concluded in Commonwealth v. Gallagher, 91 Mass.

App. Ct. 385, 389-391 (2017), that the prejudice from improper

trooper opinion testimony that "the defendant's level of

intoxication rendered her impaired to operate her vehicle . . .

would be relatively modest given what must have been obvious to

the jury, i.e., that the arresting trooper believed that the

defendant's ability to operate her car was impaired by alcohol

consumption," and in light of an appropriate limiting

instruction.

Here, any risk of prejudice was diminished by the jury

instructions. The judge instructed the jury that they were to

put no higher weight on testimony of a police officer and that

it was the jury's job alone to determine the facts. Moreover,

as in Canty and Gallagher, the evidence of the defendant's

3 "An error is not prejudicial, if it did not influence the
jury, or had but very slight effect . . ." (quotation and
citation omitted). Canty, 466 Mass. at 545.

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intoxication while operating a motor vehicle was "compelling, if

not overwhelming, . . . apart from the improper opinion

testimony." Gallagher, 91 Mass. App. Ct. at 390. The defendant

admitted to drinking approximately one-quarter of a handle of

vodka and to last drinking approximately an hour and one-half

before he crashed his Maxima. A partially-consumed bottle of

vodka was in the Maxima. Another driver described the

defendant's erratic driving just before the crash. An officer

observed an odor of alcohol emanating from the defendant, that

his speech was slurred, and that his responses were delayed.

The officer also observed that the defendant's eyes were

bloodshot and glassy. The defendant's performance during three

field sobriety exercises also indicated impairment, including an

inability to follow instructions and poor balance and

coordination. Accordingly, we conclude that the admission of

the officer's testimony was not prejudicial and therefore does

not warrant reversal.

2. Jury instruction. The defendant next argues that the

judge's failure to, sua sponte, give an additional jury

instruction regarding proper use of the police officer's opinion

testimony constituted reversible error. The defendant argues

that this instruction was particularly necessary as the jury

could have understood the officer's testimony as expert opinion

rather than lay opinion. We are unpersuaded, and we have

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repeatedly concluded that a judge need not give such an

instruction where it was not requested and that the lack of such

an instruction does not create a substantial risk of a

miscarriage of justice. See, e.g., Commonwealth v. Waite, 102

Mass. App. Ct. 578, 581-582 (2023) (trooper's lay testimony need

not require instruction sua sponte as to jury's treatment of

said testimony); Commonwealth v. Moreno, 102 Mass. App. Ct. 321,

325-326 (2023) (officer's opinion regarding defendant's sobriety

is lay opinion and no further instruction required). Further,

following an objection to the prosecutor's closing argument, the

judge instructed the jury "to put no more weight on the evidence

of the testimony presented by a police officer simply by virtue

of that person's role as a police officer than you would have a

lay witness."

3. Prosecutor's closing argument. Remarks in a

prosecutor's closing argument "are considered in the context of

the whole argument, the evidence admitted at trial, and the

judge's instructions to the jury." Commonwealth v. Walters, 472

Mass. 680, 703 (2015). The defendant argues that the

prosecutor's closing argument was improper in two respects and

that the cumulative effect of those errors deprived him of a

fair trial. We disagree.

First, the defendant argues for the first time on appeal

that the prosecutor misstated the evidence when he argued in

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closing that the defendant said "that he had just consumed

approximately one-quarter of a handle of vodka, approximately

recently being within an hour and a half" of the accident. The

arresting officer's testimony was that the defendant admitted he

had drunk one-quarter of a handle of vodka, and said he consumed

his last drink an hour and one-half before the accident.

Although the prosecutor could have more artfully phrased the

point, even assuming that the prosecutor misstated the evidence,

we discern no substantial risk of a miscarriage of justice.4 See

Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 326-327 (2016).

The defendant admitted to consuming approximately one-quarter of

a handle of vodka the day of the crash, which was around 12:40

P.M.; he admitted his last drink was at about 11 A.M.; and there

was a bottle of vodka in the car that was sixty percent

consumed. As already described, other evidence of his

intoxication was significant. Also, the judge instructed the

jury that closing arguments are not evidence. See Commonwealth

4 The defendant also claims that trial counsel was
ineffective for failing to object. "[W]hen a defendant alleges
that his failure to preserve an issue for appeal stems from
ineffective assistance of counsel, as this defendant has, we do
not evaluate the ineffectiveness claim separately."
Commonwealth v. Randolph, 438 Mass. 290, 296 (2002). Instead,
"[if] we determine that an error has been committed, . . .
ineffectiveness is presumed if the attorney's omission created a
substantial risk, and disregarded if it did not." Id. As the
prosecutor's presumed misstatement of the record did not create
a substantial risk of a miscarriage of justice, the defendant
has failed to prove ineffective assistance.

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v. Cifizzari, 397 Mass. 560, 578 (1986) (where prosecutor

referred to facts not in evidence, "the judge corrected any

possible error by instructing the jury that arguments of counsel

were not evidence").

Second, the defendant contends that the prosecutor's

closing constituted improper vouching when he argued, "Finally,

I'd ask you to consider the opinion of an experienced police

officer. We all know what someone [who has] had too much to

drink looks like, but a police officer . . . might have a couple

of advantages . . . . They have special training." Because the

defendant timely objected, "we evaluate whether the defendant

was prejudiced thereby, considering the remarks in the context

of the entire argument, the trial testimony, and the judge's

instructions to the jury." Commonwealth v. Beaudry, 445 Mass.

577, 584 (2005).

Assuming that the prosecutor's statement was improper, we

discern no reversible error. After defense counsel objected,

the judge gave a limiting instruction. Specifically, as

indicated above, the judge instructed the jury that a police

officer's testimony is not entitled to more weight than a lay

witness simply by virtue of that person's role as a police

officer. Defense counsel did not request a stronger

instruction. The judge then gave sufficient instructions in his

final charge, to which defense counsel did not object, that

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closing arguments "are not a substitute for evidence" and that

the jurors "are the sole judges of the credibility of these

witnesses." Considering "the context of the whole argument, the

evidence admitted at trial, and the judge's instructions to the

jury," Walters, 472 Mass. at 703, the prosecutor's statements

were not prejudicial. See Commonwealth v. Akara, 465 Mass. 245,

262 (2013) (error in prosecutor's closing not prejudicial where

judge gave charge "following shortly after closing argument and

responding to the prosecutor's improper argument").

Judgment affirmed.

By the Court (Massing,
Henry & Grant, JJ.5),

Clerk

Entered: July 1, 2024.

5 The panelists are listed in order of seniority.

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