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).
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.
2
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. Ortiz-
Soto, 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.
3
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.
4
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 one-
legged 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.
5
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 one-
legged 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 one-
legged 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)
6
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.
7
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
8
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.
9
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.
10
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.
11