COMMONWEALTH VS. EVENS FLEURANCIN
[Sufficiency of Impairment Evidence & Opinion Testimony]
After a jury-waived trial, a judge convicted Evens Fleurancin of operating a motor vehicle while under the influence of marijuana. On appeal to the Massachusetts Court of Appeals, the defendant argued:
The Court ruled that although the evidence of intoxication was sufficient to support a conviction, it was not strong enough to overcome the prejudice stemming from the inadmissible opinion testimony. The Court consequently reversed the judgment and set aside the finding.
Sufficiency of Impairment Evidence
All questions on the sufficiency of evidence require a judge or jury to rationally find that essential elements of the crime were satisfied beyond a reasonable doubt. The elements of OUI marijuana are:
The phrase “under the influence” is another way of saying “impairment”.
The Commonwealth elicited testimony that the defendant drove past two police officers without stopping while the officers, who were conducting traffic control in a construction site, gestured and yelled for the defendant to stop. The defendant ultimately stopped for a traffic light shortly after passing the officers. One officer smelled the odor of burnt marijuana. The defendant admitted to smoking the substance one hour earlier.
The defendant was ordered to exit the vehicle. He struggled to get out of the car, forgetting to unbuckle his seatbelt. Outside the car, the police observed that the defendant was moving lethargically and had difficulty answering basic questions regarding his date of birth or where he was coming from. Police furthermore conducted four field sobriety tests (FSTs) on the defendant and later testified that the defendant poorly performed on all of these.
The Court determined that the defendant’s demeanor, his responses to questions posed by the officers, and his performance on the roadside assessments was sufficient evidence of impairment to sustain conviction.
The Court did note however that the officers testifying to these tests as an accurate gauge of marijuana intoxication was inappropriate. The Court cited Commonwealth v. Gerhardt (2017):
“[A] witness testifying to the performance of FSTs in the context of marijuana intoxication should refer to a driver’s performance on ‘roadside assessments’, so as not to suggest that they function as scientific validation of a defendant’s sobriety or intoxication”.
The defendant challenged the admission of six statements. During trial, Counsel for the defendant objected to all but one statement made by police:
The Court reasoned that as is true for any lay witness, police can provide opinion on a defendant’s level of intoxication from alcohol consumption. However, that exception does not extend to marijuana consumption. The Court added that when it comes to marijuana, police “may [indisputably] testify concerning a defendant’s observable appearance, behavior, and demeanor, but [they] may not[,] offer an opinion as to the defendant’s sobriety or intoxication.”
The Court determined that because the officers’ testimony exceeded the bounds of permissible lay opinion testimony, it was an error for the judge to allow it.
The Court continued on to explain the prejudicial effect of allowing this testimony.
It argued that firstly, the challenged testimony was repeated several times and referenced by the Commonwealth in its closing statement. Additionally, the Court argued that evidence in the case was far from overwhelming. Much of the defendant’s incriminating behavior had reasonable explanations.
The Court provided several examples of this latter point. The defendant explained that he failed to see police waving to him, because he was focused on the stoplight. The defense plausibly argued that the defendant appeared confused and experienced difficulty getting out of the car, because he was perplexed as to why police were stopping him. The defense’s explanation that the defendant’s unfamiliarity with the English language can be attributed to his missteps in answering some of the questions asked by the officers was also deemed plausible.
The Court determined that given the above-mentioned plausible explanations for the defendant’s behavior and the absence of stronger evidence of impairment, it cannot say that the impermissible opinion testimony of the two veteran police officers had only a minimal effect on the judge.
Judgment REVERSED and finding SET ASIDE.
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Source: Commonwealth vs. Evens Fleurancin, 18-P-448