In a horrible decision delivered today, a divided panel of the Massachusetts Appeals Court affirmed a woman’s conviction for operating under the influence of alcohol, despite an egregious error made by the trial judge. The name of the case is Commonwealth v. Gallagher.
On June 29, 2014, Massachusetts state troopers were conducting an OUI roadblock in Chicopee. When the 71-year-old defendant encountered the roadblock at just past midnight, she was directed to park her car in a marked spot. Instead, she stopped diagonally across two spots. A trooper initiated a conversation with the defendant, who smelled like alcohol and had bloodshot, glassy eyes. Her speech was a bit slurred when she told the trooper she recently drank three beers. The defendant agreed to submit to field sobriety tests. According to the trooper, the defendant was unable to walk in a straight line or lift one foot off the ground for 30 seconds. While the defendant was able to correctly recite the alphabet, the trooper concluded she was under the influence of alcohol and arrested her.
The defendant elected to have a jury trial in Chicopee District Court. At her trial, the trooper who administered the field sobriety tests testified he formed the opinion the defendant was under the influence of alcohol and “she was impaired to operate a motor vehicle.” The defense attorney properly objected to the trooper’s testimony, as his opinion that the defendant was impaired was unquestionably inadmissible. In Massachusetts, witnesses in criminal trials are prohibited from offering their opinions about defendants’ guilt or innocence. Witnesses can testify about their observations (for example, in this case the trooper could testify that the defendant smelled like alcohol and couldn’t keep her balance), but it is the jury’s responsibility to apply the evidence to the law and conclude whether the defendant has committed a crime. In this case, the issue was whether the defendant had consumed enough alcohol to impair her ability to drive. The trooper’s opinion on that very point invaded the province of the jury and was completely improper. Just one year before the defendant’s trial, the Supreme Judicial Court had explicitly ruled that a cop in an OUI case cannot offer the type of testimony that the trooper in this case was allowed to give.
And so, following her conviction based in part on clearly inadmissible testimony, the defendant asked the Appeals Court to reverse and award her a new trial. The Appeals Court had no choice but to conclude the trooper’s opinion about the defendant’s ability to drive was error. But instead of reversing the defendant’s conviction, the Court employed one of its favorite principles – the harmless error rule. Even if a criminal defendant can clearly establish an error at her trial, Massachusetts appellate courts also require her to prove her conviction was influenced by the error. In this case, the Appeals Court ruled the defendant had not been prejudiced by the prosecutor’s error in eliciting the testimony and the judge’s error in admitting it, and accordingly, the conviction can stand.
One justice dissented. The dissent points out that the evidence against the defendant, while sufficient to support her conviction, was not overwhelming. The dissenting justice wrote he could not conclude that the trooper’s erroneously admitted opinion had not influenced the jury. Often times, the Supreme Judicial Court will agree to review Appeals Court cases that are not unanimously decided. Hopefully this will be one of those cases and the SJC will reverse this terrible decision.