Appeals Court, December 6, 2013
Improper Opinion Testimony:
In accordance with Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012) and Commonwealth v. Canty, 466 Mass. 535, 544 (2013), a police officer could opine about the defendant’s level of sobriety, i.e., “he was intoxicated.” However, the officer could not opine that the defendant’s “ability to safely operate a motor vehicle had been impaired due to the consumption of an alcoholic beverage.” Nevertheless, the impermissible portion of the officer’s testimony did not rise to a substantial risk of a miscarriage of justice, as the testimony was very brief and the Commonwealth’s evidence of intoxication was very strong.
Because the Judge conducted a jury waiver colloquy and the defendant submitted a written waiver of his right to a jury trial on the underlying Operating Under the Influence offense, the Judge was not required to conduct a colloquy and obtain a written jury trial waiver before a bench trial commenced on the subsequent offense portion of the complaint, charging the defendant with OUI, (Fourth Offense).
The difference being, in Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 543 (2008), the defendant was tried by a jury on the underlying OUI offense and thus there was never a jury waiver for the subsequent offense portion. In Saulnier, the defendant waived his right to a jury trial on the underlying offense, and thus, the Court did not have to repeat the jury waiver colloquy or procure a written waiver from the defendant for the subsequent offense portion.