Commonwealth v. Saulnier
Commonwealth v. Saulnier
Opinion of the Court
After a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while
Background. The judge heard the following facts. On August 23, 2010, at approximately 7 p.m., the defendant was involved in a motor vehicle accident on Main Street in Waltham. A witness testified that she saw the defendant drive a vehicle away from Gordon’s Liquor Store and then travel diagonally across two lanes of traffic and into her lane, where it “smashed into the driver’s side headlight area of [her] car.” Afterwards, her car was inoperable. The witness’s boyfriend, who had been driving her car, called the police; the witness saw the defendant “rocking back and forth,” saying, “I’m so fucked, I’m so fucked.”
Waltham police Officer Anthony Scichilone responded to the scene and observed the witness’s motor vehicle stopped in traffic. He spoke with the defendant, who told him that the witness’s car had struck him; however, according to the officer, the witness’s car was in the proper lane. During the conversation, the officer noticed that the defendant had “a moderate odor of alcohol coming from his breath, his eyes were bloodshot and glassy, he had slurred speech, and to me he looked impaired. ... He was unsteady on his feet and when he approached the sidewalk he stumbled off the sidewalk.” Believing that the defendant was “impaired and intoxicated,” Scichilone placed him under arrest. Thomas Moran, a Waltham police sergeant who booked the defendant, essentially corroborated Scichilone’s testimony regarding the defendant’s sobriety.
Improper opinion testimony. The defendant first argues that Sergeant Moran erroneously was permitted to testify to his opinion that the defendant’s ability to operate a motor vehicle safely had been impaired due to the consumption of alcohol. Moran first testified that the defendant had trouble spelling his own name, was confused about whether he lived in an apart
The prosecutor: “And after those observations that you made about his physical appearance, the smell, and the statements, did you come to any conclusions about his level of sobriety?”
The witness: “I did.”
The prosecutor: “And what conclusion did you come to?”
The witness: “I —”
Defense counsel: “Objection, Your Honor.”
The court: “I’ll sustain it to the form of the question as opposed to a conclusion . . . .”
The prosecutor: “What opinion did you form?”
The witness: “I formed the opinion that he was intoxicated and that his ability to safely operate a motor vehicle had been impaired due to the consumption of an alcoholic beverage.”
Defense counsel: “Objection, Your Honor.”
The court: “Well, [even to] the rendering of the opinion, right, noted and overruled.”
Counsel did not clarify the objection, and the trial proceeded.
The prosecutor’s question was proper: the officer’s opinion about the defendant’s level of sobriety was admissible. The officer’s additional response, including his opinion about the defendant’s ability to drive safely and the cause of any impairment, was not admissible, because, in so responding, the officer spoke directly to one of the ultimate issues in the case. See Commonwealth v. Jones, 464 Mass. 16, 17 n.l (2012) (“In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was
In this case, however, defense counsel did not explain to the judge the basis for her objection, and looking at the context, it is clear that the judge understood the objection to go to the form of the question and to the fact that the officer’s answer was harmful to the defendant.
We are persuaded that there was no substantial risk of a miscarriage of justice here. The impermissible portion of the officer’s testimony was very brief, and the Commonwealth’s case was very strong. In our view, it is highly unlikely that the booking sergeant’s opinion on the ultimate issue was a decisive factor in the judge’s finding. “A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as a factfinder.” Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). See Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 580 (1998).
Jury waiver, a. Background. The defendant next argues that the judge’s failure to conduct a second jury waiver colloquy or to procure a second written waiver from the defendant for the subsequent offense phase of the trial constitutes reversible error. Before the trial on the underlying offense began, the judge conducted a thorough colloquy with the defendant, explaining to him his right to have his case tried by a jury. In the colloquy, the judge began with the words, “I understand you wish to give up your absolute right to have a jury trial in this case” (emphasis added). The defendant submitted a written waiver, giving up his right to a jury trial. The waiver carried the docket number of the complaint. The complaint itself listed only one criminal charge along with two civil motor vehicle infractions.
Later that same day, after the judge found the defendant guilty of the underlying offense, the judge said to defense counsel, “And how are we going to proceed next?” Counsel responded, “We’re going to do a bifurcated trial.” The judge then inquired, “And satisfied with the prior waiver with the gentleman?” and counsel answered, “[Y]es.” What followed, the evidentiary portion of the subsequent offense phase of the trial, occupies six pages of transcript. The arresting officer was recalled
The judge then offered to take a recess so that defense counsel could consult with her client. After a time, when defense counsel stated that she was ready, both the prosecutor and defense counsel gave closing arguments. Defense counsel reiterated her Sixth Amendment objections and also noted what she alleged were various infirmities in the authentication of the documents offered. The judge responded with questions, and considerable exchange took place among both counsel and the judge, most of it relating to the admissibility of the documents. The judge then stated that he was satisfied that the Commonwealth had proved “beyond a reasonable doubt three prior admissions to or convictions for operating under the influence of alcohol or comparable offenses.”
b. Discussion. “Under G. L. c. 278, § 11A, a defendant ‘charged with a crime for which more severe punishment is provided for second and subsequent offenses’ who pleads guilty or is found guilty after trial, ‘shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint. . . alleging that the crime charged is a second or subsequent of
The issue here is what is required of the judge when the defendant wishes a trial in both phases of the bifurcated proceeding, but waives his right to a jury. There are no reported cases directly on point. We are guided, however, by the reasoning of the Supreme Judicial Court in Commonwealth v. Pelletier, supra, and by our own analysis in Commonwealth v. Hernandez, 42 Mass. App. Ct. 780 (1997). In Commonwealth v. Pelletier, supra at 397-398, the court stated, “Where a defendant is pleading guilty, we do not read the statute as requiring that a judge conduct an entirely new plea colloquy during the second step of the bifurcated proceeding. The preliminary questioning conducted at the outset of the plea hearing on the underlying offense need not be repeated, so long as the judge makes clear, and the defendant understands, that the preliminary questioning applies equally to the plea on the subsequent offense portion of the charge as well.”
In Commonwealth v. Hernandez, supra, there were in fact two separate trials, on two separate complaints, where each complaint charged the defendant with possession with intent to distribute a class A substance and with distribution of a class A substance within 1,000 feet of a school. See id. at 781. Under
We also have in mind that the initial colloquy was complete and the defendant does not challenge it. At the end of the first phase of the trial, the judge inquired about the second phase and the jury waiver. In response, counsel explicitly waived the jury for that second part of the trial. We are satisfied that this procedure was adequate to safeguard the defendant’s rights in this case.
Moreover, the defendant here did not file a motion for a new trial and presented nothing, in affidavit form or otherwise, to indicate that he did not understand that he had a right to a jury trial on the subsequent offense portion of the charge, or that he would have chosen such a trial, or what he might have hoped to accomplish in such a trial. It is difficult to see that a jury trial might have made a difference for him. The nature of the subsequent offense portion of the trial that took place, which was largely a legal argument about the rules of evidence and the defendant’s Sixth Amendment right to confrontation, would not have lent itself to credibility or other arguments one would expect to make to a jury. Therefore, even if there was error, we are persuaded that it was harmless beyond a reasonable doubt. See Commonwealth v. Nwachukwu, 65 Mass. App. Ct. 112, 118-119 (2005).
The published cases cited by the defendant do not help him.
Judgment affirmed.
The Commonwealth moved to amend the complaint to reduce the fifth offense charge to a fourth offense, and the motion was allowed.
Defense counsel had objected earlier when Scichilone was asked to give an opinion about the defendant’s sobriety.
None of the exhibits is included in the record before this court, and the defendant raises no issue as to any of them.
One trial immediately followed the other, and the first trial was very short. Id. at 786.
In the future, the better practice would be to require an explicit acknowledgment on the record from the defendant that he understands that he has a right to a trial by jury in each part of the bifurcated trial, and that he understands that he is waiving that jury trial right for both parts.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.