Commonwealth v. Moreno

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22-P-330 Appeals Court

COMMONWEALTH vs. FELIX S. MORENO.

No. 22-P-330.

Middlesex. December 13, 2022. – February 23, 2023.

Present: Green, C.J., Meade, & Blake, JJ.

Motor Vehicle, Operating under the influence, Operating to
endanger. Reckless Endangerment of a Child. Alcoholic
Liquors, Motor vehicle. Evidence, Field sobriety test,
Opinion. Practice, Criminal, New trial, Assistance of
counsel, Question by jury, Instructions to jury, Witness.
Witness, Expert.

Complaint received and sworn to in the Concord Division of
the District Court Department on August 29, 2016.

The case was tried before Lynn C. Brendemuehl, J., and a
motion for a new trial was heard by her.

MarySita Miles for the defendant.
Chia Chi Lee, Assistant District Attorney, for the
Commonwealth.

MEADE, J. After a jury trial, the defendant was convicted

of operating a motor vehicle while under the influence of
2

intoxicating liquor (OUI), third offense,1 and child endangerment

while OUI. On appeal from the judgments and from the order

denying his motion for a new trial, the defendant claims that

(1) the judge erred by permitting the arresting officer to use

the phrase "sobriety test" during his testimony and for

permitting the officer to describe his training and experience

in administering those tests, and (2) his trial counsel provided

ineffective assistance by not objecting to a jury instruction on

the lack of breathalyzer evidence. We affirm.

Background. We summarize the facts as the jury could have

found them. See Commonwealth v. Sands, 424 Mass. 184, 185

(1997). At approximately 12:30 A.M. on August 28, 2016,

Sergeant Kevin Monahan of the Concord police department saw a

Jeep Cherokee and a GMC Yukon pulled over in a breakdown lane on

Route 2 in Concord. Seeing that the Jeep's hazard lights were

on, Sergeant Monahan stopped and discovered that the two

vehicles had collided. The defendant was the driver of the

Yukon, his girlfriend was a passenger, and their two year old

daughter was in the back seat. The collision happened when the

defendant stopped behind the Jeep at a red light. When the

light turned green, the Jeep did not move immediately, but the

1 After a jury trial on the underlying charge, the third
offense portion of the charge was heard by the judge.
3

defendant accelerated anyway, and the Yukon collided with the

rear passenger side of the Jeep.

Sergeant Monahan asked the defendant where his car was

damaged, and the defendant pointed to the wrong side of the car.

The sergeant noticed the defendant's eyes were bloodshot and

glassy, he walked unsteadily, and his breath had an odor of

alcohol. He then asked the defendant to complete three field

sobriety tests. Before the tests, the defendant stated that he

understood English, and that he was not impaired by any

medication or physical condition. Nevertheless, the defendant

failed all three tests: he listed only five letters when asked

to recite the alphabet,2 he could not stand with one foot raised

while counting to thirty, and he was unable to walk nine steps

heel-to-toe without stumbling. The defendant did not explain

why he could not recite the alphabet, but he did state that he

had a bad hip that caused him to fail the one-legged stand test.

Before trial, the defendant filed a motion in limine to

prevent the Commonwealth's witnesses from using the phrase

"sobriety test," arguing that it transforms a lay opinion into

an expert opinion. The judge denied the motion. During the

trial, Sergeant Monahan testified that he had been trained in

OUI investigations at the police academy, including in

2 The defendant could only recite five letters -- A, B, C,
T, and Z -- and then stopped.
4

administering field sobriety tests. He explained that he was

trained to look for physical signs that a person is impaired by

alcohol, such as bloodshot or glassy eyes, slurred speech, an

odor of alcohol, and poor balance. Sergeant Monahan also

described what field sobriety tests are, his experience in

administering them, and how the defendant performed on the

tests. He testified that he formed the opinion that the

defendant was intoxicated based on the defendant striking

another car, failing to complete the field sobriety tests, and

having physical symptoms such as slurred speech, poor balance,

and bloodshot eyes.3

On the first day of deliberations, the jury sent a question

to the judge inquiring why there had been no breathalyzer test

evidence. The judge told defense counsel and the Commonwealth

that she intended to respond with two instructions: a reminder

to the jury to decide the facts solely based on the evidence at

trial,4 and an instruction pursuant to Commonwealth v. Downs, 53

Mass. App. Ct. 195, 198 (2001) (Downs instruction), on the

3 The defendant also testified at trial, in English, having
declined an interpreter. He testified that he did not study the
alphabet as a child, could only read a little, and was unable to
write.

4 The judge told the jury to imagine all the trial evidence
in a box and that they should remain inside that box when
deciding the case, and to avoid guesswork, speculation, or
conjecture.
5

absence of breathalyzer evidence. Both defense counsel and the

Commonwealth agreed to the judge's proposed response. The judge

delivered the Downs instruction as follows:

"You are not to mention or consider in any way whatsoever,
either for or against either side, that there is no
evidence of a breathalyzer. You may not speculate or guess
about it because there is no evidence about it. Do not
consider that in any way. Do not mention it and put it
completely out of your mind."

The defendant moved for a new trial, claiming his trial

counsel provided ineffective assistance by failing to consult

him before agreeing to the Downs instruction. The motion judge,

who was also the trial judge, denied the motion.

Discussion. 1. Sobriety test testimony. We review the

judge's decision to permit the sergeant to use the phrase

"sobriety test" for prejudicial error because the defendant's

motion in limine preserved the issue. See Commonwealth v.

Canty, 466 Mass. 535, 544-545 (2013). However, the defendant's

claim relative to the sergeant's testimony regarding his

training and experience was not properly preserved, so we review

to determine if there was error, and if so, whether it created a

substantial risk of a miscarriage of justice.5 See Commonwealth

v. Bonds, 445 Mass. 821, 828 (2006) (issue not preserved where

5 The defendant's motion in limine did not mention testimony
about the sergeant's training and experience. Defense counsel
objected to the testimony during trial but did not specify the
grounds for the objection. This did not preserve the claim.
See Commonwealth v. Almele, 474 Mass. 1017, 1018 (2016).
6

testimony was objected to at trial but on different grounds than

those asserted on appeal). As discussed below, we conclude

there was no error.

The defendant claims the phrase "sobriety test," when

combined with an officer's description of his training and

experience, transforms the officer's testimony from a lay

opinion to an expert opinion. We disagree. "[A]n opinion

regarding a defendant's sobriety is a lay opinion," and a police

officer may testify as a non-expert witness to a defendant's

"apparent intoxication" (citation omitted). Canty, 466 Mass. at

541. "[T]ypical field sobriety tests do not supply the basis

for a scientific opinion about whether a person is under the

influence of alcohol or the level of intoxication."

Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353 n.5 (2015).

Instead, field sobriety tests permit an officer to observe

whether a person has lost or diminished balance, coordination,

or mental acuity due to intoxication. See Commonwealth v.

Brown, 83 Mass. App. Ct. 772, 774 n.1 (2013). Because a lay

juror understands the effects of intoxication, an officer's

observations of a defendant's behavior during a sobriety test

remain within the realm of common experience. See id., citing

Sands, 424 Mass. at 188. See also Mass. G. Evid. § 701 (2022)

(non-expert testimony admissible if based on witness

perceptions, helpful to jury's understanding of facts, and "not
7

based on scientific, technical, or other specialized

knowledge").

In Canty, the Supreme Judicial Court observed that "a

prosecutor who elicits from a police officer his or her special

training or expertise in ascertaining whether a person is

intoxicated risks transforming the police officer from a lay

witness to an expert witness on this issue." Canty, 466 Mass.

at 541 n.5. Here, however, the prosecutor properly elicited the

sergeant's testimony regarding his training and experience in

OUI investigations, including field sobriety tests. Indeed, the

sergeant's opinion was based on his observations that the

defendant collided with another car and showed several physical

signs of intoxication. Relative to the field sobriety tests,

the defendant could not recite the alphabet, could not stand

with one foot raised while counting to thirty, and could not

walk nine steps heel-to-toe without stumbling. What the

sergeant observed, both before and during the sobriety tests,

was within the scope of a juror's common experience of

intoxication. See Rarick, 87 Mass. App. Ct. at 353 n.5. See

also Brown, 83 Mass. App. Ct. at 774 n.1 ("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. Commonwealth v.

Matta, 483 Mass. 357, 366 n.8 (2019) ("ordinarily, when an
8

officer relies on his or her training and experience to draw an

inference or conclusion about an observation made, the officer

must explain the specific training and experience that he or she

relied on and how that correlates to the observations made").

The observations therefore do not form the basis for scientific

conclusions, and this is not a case where the sergeant's

description of his training and experience transformed his

testimony into an expert opinion. Cf. Canty, supra.

Relying on a dissenting opinion from one of our prior

decisions, the defendant asserts that the judge should have done

more to ensure that the jury did not mistake the lay testimony

for expert testimony. See Commonwealth v. Gallagher, 91 Mass.

App. Ct. 385, 399 (2017) (Agnes, J., dissenting). However, a

dissent is just that, and it lacks any binding precedential

value. In any event, other than both cases involving OUI

charges, this case is not similar to Gallagher. There, we

concluded that an officer's testimony that the defendant "was

impaired to operate a motor vehicle" was improper because it

commented on the defendant's guilt or innocence. Id. at 389.

In Canty, the Supreme Judicial Court similarly concluded that an

officer improperly commented on the ultimate issue in the case

by stating that alcohol diminished the defendant's ability to

drive. See Canty, 466 Mass. at 544. However, both the Supreme

Judicial Court in Canty and this court in Gallagher reasoned
9

that the improper testimony did not prejudice the defendant, in

part because in each case the judge adequately instructed the

jury that they alone were to determine the defendant's guilt or

innocence. See Canty, supra at 545; Gallagher, supra at 390.

In this case, the testimony was proper, and the judge provided

the appropriate instructions to the jury.6 No further guidance

on the distinction between lay and expert opinion evidence was

required. There was no error.7

2. Ineffective assistance. We review the denial of a

motion for a new trial "to determine whether there has been a

6 The judge instructed the jury that they should decide
whether to accept, reject, or assign any weight to the opinion
testimony and the sobriety test evidence, and ultimately, that
they alone were to decide whether the defendant was intoxicated.

7 For the first time on appeal, the defendant also claims
that the prosecutor's unobjected-to closing argument, which
described the sergeant's training and experience in
administering field sobriety tests, transformed the sergeant's
opinion into that of an expert. We disagree. The prosecutor's
argument merely laid out how the sergeant was trained in the
administration of field sobriety tests, what the indicators of
intoxication may be, and that the sergeant had nineteen years of
experience. This was especially appropriate after defense
counsel attempted to discredit the sergeant's credibility by
arguing that the sergeant had seen a late-night accident,
smelled alcohol, and simply made "an assumption" regarding the
defendant's intoxication. See Commonwealth v. Kee, 449 Mass.
550, 560 (2007). See also Commonwealth v. Thomas, 401 Mass.
109, 116 (1987) ("Where credibility is at issue, it is certainly
proper for counsel to argue from the evidence why a witness
should be believed"). At bottom, the prosecutor's argument did
not risk transforming the sergeant from a lay witness to an
expert witness. See Canty, 466 Mass. at 541 n.5. There was no
error, and thus, no risk that justice miscarried.
10

significant error of law or other abuse of discretion."

Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We give

particular deference to the decision of a motion judge who was

also the trial judge. See id. Where the defendant claims

ineffective assistance of counsel, a new trial is warranted only

if the defendant shows that "there has been serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer -- and, if that is

found, then, typically, whether it has likely deprived the

defendant of an otherwise available, substantial ground of

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

Regarding the second prong of the Saferian analysis, "the

defendant is entitled to a new trial if there is a substantial

risk of a miscarriage of justice arising from counsel's

failure." Commonwealth v. Millien, 474 Mass. 417, 432 (2016).

The defendant claims that his trial counsel was ineffective

by failing to consult him before the judge provided the Downs

instruction to the jury. In Commonwealth v. Wolfe, 478 Mass.

142, 149-150 (2017), as an exercise of its superintendence

power, the court held that "the better practice is for a judge

to refrain from giving a Downs-type instruction absent a request

by the defendant or some rare set of facts that specifically

directs the jury's attention to the absence of alcohol-test
11

evidence." Animating the court's concern was that the Downs

instruction could implicate the defendant's protection against

self-incrimination under art. 12 of the Massachusetts

Declaration of Rights because it draws the jury's attention to

the lack of alcohol-test evidence, suggesting that the defendant

may have refused a test or feared an unfavorable result. See

id. at 147-148. See also Opinion of the Justices, 412 Mass.

1201, 1209 (1992) (refusal evidence may be used to show

defendant feared failing alcohol test and thus held to violate

privilege against self-incrimination under art. 12 of

Massachusetts Declaration of Rights).

In this case, during the first day of deliberations, the

jury asked for clarification on why there was no breathalyzer

test evidence. A footnote in Wolfe specifically addressed this

situation, stating that "it is the better practice to simply

reiterate the general instruction not to speculate about matters

not in evidence and, to the extent possible, refrain from

reinforcing the jury's focus on items not in evidence by

mentioning the lack of alcohol-test evidence." Wolfe, 478 Mass.

at 150 n.13. In response to the jury's question here, the judge

provided both the Downs instruction and a general instruction.

Although the judge did more than merely reiterate the general

instruction as the court in Wolfe had recommended, the defendant

has not shown that the response was improper for two reasons.
12

First, the judge consulted defense counsel before

delivering the Downs instruction, and defense counsel agreed

that it was appropriate. Therefore, although defense counsel

did not affirmatively request the instruction, the judge

complied with Wolfe by giving defense counsel the opportunity to

elect whether the jury should receive it. See Wolfe, 478 Mass.

at 149 ("we conclude that typically a defendant should be able

to elect whether the jury are instructed about the absence of

alcohol-test evidence"). In fact, Wolfe does not prohibit a

judge from having a discussion with defense counsel about

whether to give the Downs instruction.

Second, Wolfe addressed the art. 12 concern that the jury

will speculate about why alcohol-test evidence is missing. This

concern is diminished where, as in this case, the jury has

independently asked for an explanation. Accordingly, although

the court in Wolfe stated that it is the better practice to

respond to a jury question with a general instruction only, the

court did not state that it is error to deliver the Downs

instruction as well. See Wolfe, 478 Mass. at 150 n.13. Rather,

in Wolfe, the court stated that it was error to instruct the

jury on the absence of alcohol-test evidence against the

defendant's wishes. See id. at 149. See also Commonwealth v.

Waite, 422 Mass. 792, 807 n.11 (1996) (judge has broad

discretion in responding to jury questions).
13

The defendant also claims that his trial counsel provided

ineffective assistance by failing to obtain his consent to the

Downs instruction. In support of the defendant's motion for a

new trial, his trial counsel admitted that he was unaware of the

Wolfe decision, and that if he had been aware, he would have

advised the defendant not to agree to the Downs instruction.

Even if counsel's performance was deficient in this manner,

given our conclusion that providing the Downs instruction was

not error in the circumstances of this case, the defendant

cannot establish prejudice to meet the second prong of an

ineffective assistance of counsel claim. See Commonwealth v.

Keon K., 70 Mass. App. Ct. 568, 574 n.4 (2007), citing

Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) (if

counsel's omission does not present substantial risk of

miscarriage of justice, no basis for ineffective assistance of

counsel claim under either Federal or State Constitution).8

8 The defendant relies on Commonwealth v. Spring, 94 Mass.
App. Ct. 310, 320-321 (2018), to support his claim that
counsel's unawareness of relevant case law was manifestly
unreasonable. We concluded in Spring that counsel's
unfamiliarity with the law and failure to request an essential
jury instruction fell below expectations of an ordinary lawyer.
See id. However, in Spring, the jury instructions did not
properly set out all elements of the charged offense. See id.
In the present case, the jury instruction correctly addressed
all elements of the charged offense, and the defendant has not
shown that there was a substantial risk that the result of the
jury's deliberations would have been different had the judge not
administered the Downs instruction. See Commonwealth v.
Satterfield, 373 Mass. 109, 115 (1977) (defendant's burden to
14

Further diminishing any concerns of unfair prejudice was that

the Commonwealth's case against the defendant was very strong,

if not overwhelming: the defendant collided with another car

and misidentified where his car was damaged; he had bloodshot

eyes, walked unsteadily, and his breath had an odor of alcohol;

and he failed three field sobriety tests.9 Compare Commonwealth

v. Bryer, 398 Mass. 9, 10, 17 (1986) (evidence "substantial and

overwhelming" where defendant was observed speeding, was unable

to balance, and was acting belligerently, with red, glassy eyes,

and odor of alcohol). We are therefore not left with serious

doubt that the jury's verdicts would have been different if the

defendant had been consulted and they had not heard the Downs

instruction, and there was no miscarriage of justice warranting

a grant of the new trial motion. See Millien, 474 Mass. at 432;

Grace, 397 Mass. at 307.

Judgments affirmed.

show that "better work might have accomplished something
material for the defense").

9 The defendant claims that tiredness and distraction caused
the collision and that he failed the field sobriety tests
because of his lack of fluency in English and a hip injury.
Because of these alternative explanations, he asserts the
Commonwealth's evidence was not overwhelming. We disagree.
"Merely offering the possibility of another scenario, based on
an incomplete accounting of the evidence, is insufficient to
meet the defendant's burden to show that the proffered evidence
'was likely to have influenced the jury's conclusion.'"
Commonwealth v. Don, 483 Mass. 697, 710 (2019), quoting
Commonwealth v. Barnett, 482 Mass. 632, 638 (2019).
15

Order denying motion for a
new trial affirmed.