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

23

- P

- 597

COMMONWEALTH

vs
.

MICHAEL CAMERON

.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury

- waived trial in the District Court , t he

defendant was convicted of operating a motor vehicle while under

the influence of intoxicating liquor , third offense

. 1 On appeal ,

he argues that the judge improperly permitted a police officer

to give an opinion on the ultimate issue , namely , whether his

consumption of alco hol impaired his abilit y to drive . He

1 The defendant pleaded guilty to the subsequent offense portion of the charge following the judge ' s verdict. In addition , he was acquitted of negligent operation of a motor vehicle stemm ing from the same incident and found responsible for a civil infraction for driving after sunset without the

car ' s headlights illuminated.2

further contends that another police officer offered an improper

opinion regarding the level of his impairment. We affirm. 2

Background

. We summarize the facts as the judge could have

found the m
. On November 2 , 2020 , at a round 5:35 P

. M

. , Officer

Austin Buttrick of the Yarmouth p olice department was on patrol

when he saw a brown Ford Fusion with out its headlights

illuminated. Because t he sun ha d set approximately thirty

minutes earlier , Officer Buttrick stopped the vehicle. The

defendant was the driver and sole occupant of the c ar. Officer

Buttrick approached and asked the defendant for his license

. Initially , t he defendant could not retrieve his license , which

was in his pocket amon g some cash. Officer Buttrick saw the

license as the defendant was fumbling with the cash and , a fter

some prompting , the defendant handed it over. During this

exchange , Officer Buttrick observed blood and mucus on the

defendant ' s sweater

. T he defendant ' s breath smelled of alcohol

and his eyes were glossy , wet , and bloodshot

. In response to

the officer ' s question , t he defendant said that he had consumed

" a couple of " beers.

2 A single justice of this court deem ed the defendant ' s notice of appeal from the denial of his motion for a new trial as timely filed . However , the defendant makes no arguments challenging the denial of the motion in his brief. We therefore affirm the order denying the new trial motion.3

Officer Buttrick then asked the defendant to perform field

sobriety te sts. When he stepped out of the vehicle , t he

defendant stumbl ed and twice Officer Buttrick had to assist him

so that he would not fall into traffic. Prior to administering

any of the field sobriety tests , Officer Buttrick asked the

defendant whether he had any physical or mental impairments that

would prevent him from performing the tests. The defendant

replied that he was able to take the tests and stated , " I can do

that ," but , at the same time , he told the officer that " his

bones [had been] fractured in the past. " Although the defendant

indicated that he could perform the tests , he was not able to do

so safely as he was unable to maintain his balance

. C oncerned

that the defendant could fall and injure himself , Officer

Buttrick decided to end the testing

. He arrested the defendant

and transported him to the police station

. Sergeant Brian Carchedi was the supervisor on duty that

evening and conducted the booking procedure. During his

interaction with the defendant , Sergeant Carchedi detected a

strong odor of alcohol and observed that the defendant was
unsteady on his feet. He also noted that the defendant ' s eyes

were bloodshot , his speech was slurred , and his answers to bas ic

questions were very confusing. Sergeant Carchedi also saw what

appeared to be vomit on the defendant ' s sweater and smelled what4

he believed to be fec es. In response to a question , t he

defendant admitted that he had consumed three Coors Li ght beers

.

There was also evidence that the re was a case of beer ,

which was half full , and five or six empty beer cans in the

rear - hatch area of the defendant ' s car
. In addition , at some

point after he transported the defendant to the police station ,

Officer Buttric k returned to his cruiser and saw what he

described as " fecal matter " on the seat where the defendant had

been sitting.

Discussion

. 1. Officer Buttrick ' s testimony

. During

direct examination , Officer Buttrick answered the prosecutor ' s
questions regardi ng the defendant ' s sobriety as follows.

Q : " And based on your investigation and your opinion , what was the cause of his inability to even stand in the instructional phase and attempt to perform field sobriety testing? "

A : " I believe based off my observations , he was intoxicated

. "

Q : " As a result of your observations of driving , your interactions with the defendant , and his inability to even participate in field sobriety testing , what did you elect to do? "

A : " Placed him under arrest

. "

Relying on Commonwealth v. Canty , 466 Mass. 535 , 540

- 5 44 (2013) ,

the defendant argues that Of ficer Buttrick ' s testimony was

improper because he opined that the defendant had been driving

while under the influence of alcohol. The defendant did not5

object or move to strike the testimony ; therefore our review is

limited to whether there was error , and if so , whether th at

error created a substantial risk of a miscarriage of justice.

See Commonwealth v. Saulnier , 84 Mass. App. Ct. 603 , 607 (2013)

. It is well settled that an opinion regarding a defendant ' s

sobriet y is a lay opinion and , as such , is admissible. See

Canty , 466 Mass. at 540

- 541. However , while lay witnesses ,
including police officers , may testify as to a defendant ' s

apparent intoxication , they may not offer an opinion on whether

the defendant was op erating a motor vehicle while under the

influence of alcohol. See id

. at 542

- 543.

T he defendant argu es that because Officer Buttrick

testified both that the defendant was intoxicated and that he

had been operating a vehicle , the testimony was the equivalent

of an opinion on the ultimate issue of whether the defendant was

driving under the influence of alcohol. We do not agree that

this sequence in the testimony amounted to an opinion on the

ultimate issue

. Officer Buttrick did not testify that , as a

result of his intoxication , the defendant ' s ability to drive was

diminished as was deemed improper in Canty , 466 Mass. at 543

-

544. Rather , he described his observations of the defendant and

then properly stated that based on those observations , he6

believed the defendant was intoxicated

. S ee id

. at 54 2

. As

such , t here was no error. 3

2. Sergeant Carchedi ' s testimony . Sergeant Carchedi

testified that during the booking procedure , he typically forms

an opinion about the effects he believes alcohol is having on

the arrestee. He stated that his " options " are " slightly

impaired , impaired , [or] greatly impaired. " Based on his

observations , Sergeant Carchedi believed the def endant was

" greatly impaired. " The defendant argues that by using a

" scientific[

- ]seeming rubri c ," Sergeant Carchedi improperly

inject ed an " aura of scientific validity " in to his opinion about

the defendant ' s level of intoxication that effectively

transformed a lay opinion into an expert opinion

. T he defendant

did not object or move to strike this testimony either , and

therefore we review the alleged error under the same substantial

risk of a miscarriage of justice standard. We di scern no error.

B y describing his options as " slightly impaired , impaired ,
[or] greatly impaired ," Sergeant Carchedi did not suggest that

he had any scientific , technical , or specialized training in

3 We also reject the defendant ' s related argument that the testimony was improper because Officer Buttrick , who is not a medical expert , implied that he considered the defendant ' s medical history in giving his opinion that the defendant was intoxicated. Contrary to the defen dant ' s assertion , there was nothing in the testimony that went beyond a permissible lay opinion.7

evaluating an individual ' s level of intoxication

. Indeed , an

officer ' s testimony regarding a defendant ' s " level " of

intoxication is admissible. Canty , 466 Mass. at 542 , 54 4

. W e

view the s ergeant ' s testimony as consistent with a lay opinion

based on his observations of the defendant and , t herefore , we

discern no error

. See Commonwealth v. Moreno , 102 Mass. App.

Ct. 321 , 325 (2023). Furthermore , a lthough there was no error ,

we note that to the extent there was any risk that the

s ergeant ' s testimony was imbued with an " aura of scientific

validity ," we assume , as we must , " that the judge did not give

inappropriate weight to [Sergeant Carchedi ' s ] statement , because

judges in jury

- waived trials are presumed to know and correctly

apply the law. " Commonwealth v. Watkins , 63 Mass. App. Ct. 69 ,
75 ( 2005).

Finally , because the evidence of the defendant ' s

intoxication was strong , even if we were to conclude that any of

the challenged testimony was improper , there was no substantial

risk of a miscarr iage of justice. See Saul nier , 84 Mass. App.

Ct. at 607

. As noted , the defendant had a strong odor of

alcohol on his breath , was unsteady on his feet , had bloodshot8

and gl o ssy eyes , had slurred speech , smelled of vomit and feces ,

had several empty beer cans in the car , and admitted that he had

consumed a few beers

. Judgment affirmed

. Order denying motion for new trial affirmed

. By the Court (Vuono , Massing & Toone , JJ. 4 ) ,

Assistant Clerk

Ente red: June 5 , 2024.

4 The panelists are listed in order of seniority.