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-1198

COMMONWEALTH

vs.

CHARLES A. MORSE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant was convicted of

operating a motor vehicle while under the influence of

intoxicating liquor (OUI). We discern in the defendant's 

various claims of error no cause to disturb the judgment, and 

affirm.

1. Sufficiency of the evidence. In a brief filed pursuant 

to Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981), the 

defendant argues that the evidence introduced at trial was 

insufficient to prove that he operated his vehicle on a public 

way or in a public place.1 The law is settled, however, that "a

parking lot that members of the public may use to visit a 

1 The defendant does not challenge the sufficiency of the 

evidence that he operated the vehicle and that he was under the 

influence of intoxicating liquor, the other two elements of OUI. 

See G. L. c. 90, § 24 (1) (a) (1).
2

restaurant, bar, shop, and beach, all open to the public, is a 

public way or place." Commonwealth v. Tsonis, 96 Mass. App. Ct. 

214, 214 (2019). In the present case, the defendant operated 

his vehicle in the parking lot of Kennedy's Restaurant, which 

was open for business at the time. Accordingly, the evidence 

was sufficient to establish that he was in a public place during 

the charged incident.

2. Hearsay. The defendant claims that certain testimony 

of the restaurant manager, Michael Kennedy, and the police 

officers who responded to the scene amounted to inadmissible 

hearsay that deprived him of a fair trial. As the defendant did 

not object to any of the now-challenged testimony at trial,2 we 

"consider whether the evidence was admissible and, if not, 

whether its admission created a substantial risk of a 

miscarriage of justice." Commonwealth v. Steed, 95 Mass. App. 

Ct. 463, 469 (2019).

When asked about the circumstances surrounding his call to 

the police, Kennedy testified that "[his] staff was attending to 

the issue that they reported to [him]" and that he was "calling 

under their direction."3 The defendant challenges Kennedy's 

2 The defendant raised a general hearsay issue before trial 

without specifying the statements he challenged.

3 Though Kennedy affirmed that the call was regarding the 

defendant, defense counsel objected to this answer, and the

judge sustained the objection.
3

testimony as improper hearsay.4 To the contrary, the challenged

statements were not hearsay, as they were based on Kennedy's 

personal observation and did not convey any content of his 

staff's "report" or "direction." See Commonwealth v. OrtizSoto, 49 Mass. App. Ct. 645, 647 n.2 (2000) (testimony based on 

personal observation not hearsay).

The officers' testimony regarding their arrival at the 

restaurant parking lot was likewise not hearsay. Contrary to 

the defendant's assertion, Officer Alex Sleeper did not testify 

about the call he received regarding the defendant; rather, he 

testified that he "responded to the scene and located a vehicle 

in the parking lot."5 Officer Kyle Skagerland testified that he 

and Officer Sleeper "were alerted to a certain vehicle to be 

looking for." This testimony merely provided context for the 

officers' arrival at the restaurant parking lot and was 

admissible to show "the state of police knowledge which impelled 

the approach to the defendant" (citation omitted). Commonwealth

4 In his brief, the defendant mischaracterizes the testimony by 

arguing that "[s]tatements by the bartender to Kennedy that 

prompted the latter to call the police on the patron (Morse) and 

direct the police to where Morse was parked" were inadmissible 

hearsay. Kennedy, however, did not testify to any of these 

statements. Moreover, as the Commonwealth points out, nothing 

in the record indicates that Kennedy directed the police to the 

defendant; in fact, Kennedy testified that he did not "remember 

speaking directly with the police."

5 Though Officer Sleeper confirmed that he saw a vehicle that 

matched the report he received, defense counsel objected to this 

answer, and the judge sustained the objection.
4

v. Cohen, 412 Mass. 375, 393 (1992). See id. ("an arresting or 

investigating officer should not be put in the false position of 

seeming just to have happened upon the scene; he should be 

allowed some explanation of his presence and conduct" [citation 

omitted]). None of the now-challenged statements contained 

details of the underlying events that led to the police 

response. They were not hearsay and were thus admissible.

3. Testimony regarding field sobriety tests. The 

defendant contends that Officer Sleeper's description of his 

training and experience and his determination that the defendant 

"failed" the field sobriety tests (FSTs) transformed his 

testimony into an expert opinion, and that the judge thus erred 

in precluding defense counsel's questions to Officer Sleeper 

about the scientific reliability of FSTs.6 As the defendant did 

not object to the judge's ruling, we review for a substantial 

risk of a miscarriage of justice.7 See Commonwealth v. Delaney, 

425 Mass. 587, 597 (1997).

6 The defendant also claims that the judge should have allowed 

defense counsel's questions about the scientific reliability of 

FSTs because the answers are in the FST training manual he 

appended to his brief. As the Commonwealth points out, however, 

this manual was never admitted in evidence, and the defendant 

further failed to establish any foundation as to whether Officer 

Sleeper was familiar with or trained on the manual. 7 When defense counsel asked Officer Sleeper about the scientific 

reliability of FSTs, the prosecutor objected, and the judge 

sustained the objection. Defense counsel did not object to this 

ruling.
5

A police officer may testify "regarding his training and 

experience in OUI investigations, including field sobriety 

tests." Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 325 

(2023). Moreover, "[t]he testimony of a police officer about 

the results of ordinary field sobriety tests . . . is lay 

witness testimony, not expert witness testimony." Commonwealth

v. Brown, 83 Mass. App. Ct. 772, 774 n.1 (2013).

Officer Sleeper's testimony did not transform him from a 

lay witness to an expert witness. He properly testified as to 

his training and experience, explaining that he was trained to 

look for physical signs of intoxication such as slurred speech,

bloodshot or glassy eyes, and unsteadiness on feet. See Moreno, 

102 Mass. App. Ct. at 323. In addition, Officer Sleeper opined 

that the defendant "failed" the walk-and-turn test and the onelegged stand test, based on his training and experience and his 

observations of the defendant's diminished balance and 

coordination.8 See id. at 324. On this record, and in the 

absence of findings based on expert testimony discrediting the 

validity of FSTs to detect impairment based on alcohol 

8 Officer Sleeper described that during the walk-and-turn test, 

the defendant missed heel-to-toe on some of the steps and swayed 

back and forth, and during the one-legged stand test, the 

defendant did not raise his leg straight and "at some point he 

had to put both feet back on the ground to save himself from 

falling." What Officer Sleeper saw during these tests was 

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

intoxication." Moreno, supra at 325.
6

consumption, Officer Sleeper's use of the word "fail" to 

describe the defendant's performance on the FSTs was not 

improper. There was thus nothing in Officer Sleeper's testimony

that risked transforming him into an expert witness, cf.

Commonwealth v. Canty, 466 Mass. 535, 541 n.5 (2013), and no 

substantial risk of a miscarriage of justice in the judge's 

preclusion of questions about the scientific reliability of 

FSTs.

The defendant's claim that the judge erred in allowing 

Officer Sleeper to testify how he typically administers the onelegged stand test is also unavailing. As the defendant objected 

to this testimony, we review for prejudicial error. See 

Commonwealth v. Hobbs, 482 Mass. 538, 558 (2019). Contrary to 

the defendant's contention, Officer Sleeper's testimony was not 

"habit evidence." Cf. Mass. G. Evid. § 406(b) (2023) 

("[e]vidence of an individual's personal habit is not admissible 

to prove action in conformity with the habit on a particular 

occasion"). Officer Sleeper stated that he could not recall how 

long he asked the defendant to hold up his leg during the onelegged stand test. His testimony that he typically conducts the 

test for thirty seconds did not create an inference that he did 

so in the instant case. There was thus no prejudicial error.

4. Ineffective assistance of counsel. The defendant 

claims that defense counsel was ineffective for failing to (i) 
7

object to inadmissible hearsay and (ii) impeach Officer 

Sleeper's credibility with a FST training manual. He raises 

this claim in its weakest form, having failed to file a motion 

for new trial in which he could have laid a foundation for 

admission of the manual.9 See Commonwealth v. Zinser, 446 Mass. 

807, 810-811 (2006).

Since (as we have explained) the testimony that the 

defendant challenges was admissible, we conclude that defense 

counsel was not ineffective for failing to object. Assuming, 

without deciding, that defense counsel could have laid the 

proper foundation to impeach Officer Sleeper's credibility with 

the FST manual, counsel's failure to do so also was not 

ineffective. As explained above, the record provides no 

indication that Officer Sleeper was familiar with or trained on 

the manual. Furthermore, "[g]enerally, failure to impeach a 

witness does not amount to ineffective assistance of counsel," 

and "absent counsel's failure to pursue some obviously powerful 

form of impeachment available at trial, it is speculative to 

conclude that a different approach to impeachment would likely 

have affected the jury's conclusion." Commonwealth v. Fisher, 

433 Mass. 340, 357 (2001). Here, defense counsel cross-examined 

9 We again note, see note 6, supra, that the copy of the manual 

appended to the defendant's brief, dated December 1, 2006, was 

not offered in evidence at trial and is not part of the record 

in this appeal.
8

Officer Sleeper regarding the FSTs he administered, including 

his lack of memory of the exact purpose of FSTs and some of the 

specifics of the walk-and-turn test and the one-legged stand 

test. Defense counsel was not required to "present expert or 

documentary evidence to support [her] argument" that Officer 

Sleeper incorrectly administered the FSTs. Commonwealth v. 

Hensley, 454 Mass. 721, 736 (2009).

5. Admission of photograph. The defendant argues that the 

judge erred in admitting a photograph depicting a case of beer 

and a makeshift cooler in the front passenger seat of the 

defendant's vehicle, as it was not relevant to any issue before 

the jury. Since the defendant did not object to the admission 

of the photograph, we review for a substantial risk of a 

miscarriage of justice. See Steed, 95 Mass. App. Ct. at 469.

We conclude that the photograph was relevant because the 

presence of beer in the defendant's vehicle may be understood as 

a "sign of alcohol use." Commonwealth v. Flanagan, 76 Mass. 

App. Ct. 456, 458 n.3 (2010). See Commonwealth v. Arroyo, 442 

Mass. 135, 144 (2004) ("The relevance threshold for the 

admission of evidence is low"). The defendant does not make any 

argument that the photograph was unfairly prejudicial, but in 

any event, the fact that Officer Sleeper could not recall 

finding any empty container of alcohol in the defendant's

vehicle significantly mitigated the potential for improper 
9

prejudice to the defendant.10 The photograph was admissible, and

thus, there was no substantial risk that justice miscarried.

6. Jury instructions regarding opinion and FST evidence. 

We also are unpersuaded by the defendant's argument that the 

judge's failure to give, sua sponte, supplemental jury 

instructions on the assessment of (i) opinion testimony 

concerning a defendant's sobriety and (ii) evidence of a 

defendant's performance on FSTs, created a substantial risk of a 

miscarriage of justice.11 See Instruction 5.310 of the Criminal 

Model Jury Instructions for Use in the District Court (2019).12 

A trial judge has "considerable discretion in framing jury 

instructions, both in determining the precise phraseology used 

and the appropriate degree of elaboration." Commonwealth v. 

Newell, 55 Mass. App. Ct. 119, 131 (2002). In reviewing jury

instructions, we evaluate them "as a whole" (citation omitted). 

Commonwealth v. Vargas, 475 Mass. 338, 349 (2016).

Here, the judge properly instructed the jury on their role

to decide whether to credit the evidence they heard, and on 

their discretion to disbelieve some or all of a witness's 

10 Officer Sleeper also testified that he did not know whether 

the beer cans in the case were opened or closed. 11 As the defendant did not object to the omission of these 

instructions, we review for a substantial risk of a miscarriage 

of justice. See Commonwealth v. Washington, 449 Mass. 476, 488 

(2007).

12 The defendant relies on the 2019 version of Instruction 5.310

that was in effect at the time of trial.
10

testimony. The supplemental jury instructions the defendant now 

asserts the judge should have administered would have largely 

repeated these general admonitions to the jury. We thus discern 

no substantial risk of a miscarriage of justice.13

7. Jury instruction regarding breathalyzer. When the jury 

asked whether the defendant was given a breathalyzer test, the 

judge, as requested by defense counsel, (i) reminded the jury to 

decide the facts solely based on the evidence at trial,14 and

(ii) gave an instruction, pursuant to Commonwealth v. Downs, 53 

Mass. App. Ct. 195, 198-199 (2001), on the absence of

breathalyzer evidence. On appeal, the defendant maintains that 

instead of responding with these instructions, the judge sua 

sponte should have instructed the jury that the defendant took a 

breathalyzer test, but "for reasons the jury may not speculate 

about, the result is not before them." The defendant further

invites us to give "future similarly situated defendants" the 

option of requesting the instruction he suggests.

13 We also note that during the jury charge conference, the judge 

asked defense counsel if she was requesting any jury 

instructions on FSTs, and defense counsel responded in the 

negative. "[I]n the absence of any request by the defendant for 

such an instruction, . . . the judge was not required to give 

the instruction sua sponte." Commonwealth v. Tavares, 471 Mass. 

430, 439 (2015).

14 The judge told the jury to imagine all the evidence in a box, 

that their verdict must be based on what was inside the box, and 

that they must avoid speculation, conjecture, or guesswork.
11

We reject this invitation, as it is beyond this panel's 

authority to establish a new rule regarding jury instructions.15 

In any event, the defendant's proposed instruction is based on a 

fact not in evidence. As the defendant concedes, the fact that 

the defendant may have taken a breathalyzer test was not adduced 

at trial. See Commonwealth v. Willard, 53 Mass. App. Ct. 650, 

658 (2002) ("There is no requirement that a judge charge on 

factual situations . . . which are unsupported by evidence"

[citation omitted]). See also Commonwealth v. Derosier, 103 

Mass. App. Ct. 518, 524 n.9 (2023) (claim of error in giving of 

Downs instruction not preserved by proposal of own "unique" 

version). There was thus no substantial risk of a miscarriage 

of justice.

Judgment affirmed.

By the Court (Green, C.J., 

Milkey & Grant, JJ.16),

Clerk

Entered: November 27, 2023.

15 The Supreme Judicial Court "retain[s] as part of [its]

superintendence power the authority to regulate the presentation 

of evidence in court proceedings[,]" including mandating jury 

instructions. Commonwealth v. DiGiambattista, 442 Mass. 423, 

444-445 & 448 (2004). 16 The panelists are listed in order of seniority.