Commonwealth v. Jack N. Keverian.

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

21-P-275

COMMONWEALTH

vs.

JACK N. KEVERIAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jack N. Keverian, appeals from his

conviction after a jury trial of operating under the influence

of intoxicating liquor (OUI), second offense.1 The defendant

argues that a State police trooper's testimony opining that the

defendant "was under the influence of alcohol and marijuana"

violated Commonwealth v. Gerhardt, 477 Mass. 775, 785 (2017),

decided six days after this trial, which held that a police

officer not qualified as an expert may not opine that a

defendant was intoxicated by marijuana. The defendant contends

that, although the jury acquitted him of operating under the

1 After the jury trial on the underlying charge, the second

offense portion of the charge was heard by the judge, who also

found the defendant not responsible for a civil marked lanes

infraction.

influence of marijuana (OUI-marijuana), the trooper's opinion as

to marijuana intoxication infected the conviction for OUI. We

affirm.

Background. At about 2:30 A.M. on February 27, 2016,

Trooper Matthew Clark responded to Soldiers Field Road in

Brighton, where the defendant's rented Chevrolet Cruze and

another car (second car) had collided. When the trooper

arrived, both drivers were standing between the vehicles. The

trooper asked if they were injured, and the driver of the second

car replied that he was not. The defendant just stood there

with a dazed look, then said, "No." Because of his dazed look,

the trooper thought the defendant might be injured, and asked

the question again. The defendant repeated that he was not

injured.

The trooper told both drivers to return to their vehicles,

and the driver of the second car complied. The defendant began

walking toward the Cruze, but walked into the travel lane of the

roadway, and so the trooper redirected him to the Cruze. The

Cruze was still running, and there was no passenger in it.

After the trooper asked for the defendant's license and

registration, the defendant handed the trooper his license and

an expired rental agreement that pertained to a different

vehicle.

2

A State police trooper for ten years, Trooper Clark had

been trained to perform field sobriety tests and to recognize

the symptoms of alcohol impairment. During their conversation,

Trooper Clark smelled strong odors of both alcohol and marijuana

emanating from the interior of the Cruze.2 He also noticed that

the defendant had a slack, droopy facial expression and

bloodshot eyes with reddened rims. Questioned by the trooper,

the defendant admitted he had consumed two beers, but said that

he did not remember the brand of beer. He said he was headed

home, which he said was "close"; when the trooper asked where he

lived, he named a town well over twenty miles away. The

defendant's speech was not so slurred as to be unintelligible,

but he spoke with a "thick tongue."

At the trooper's request, the defendant got out of the

Cruze and stood in the breakdown lane while the trooper

instructed him on how to perform field sobriety tests.3 At this

2 Trooper Clark was trained in how to recognize the odor of

marijuana; he had smelled it "[w]ell over a hundred times"

during motor vehicle stops, and also while at the State police

academy. See Commonwealth v. MacDonald, 459 Mass. 148, 158

(2011) (trained police officer may identify odor of marijuana).

3 The prosecutor, the trooper, and defense counsel all referred

to the tests as "field sobriety tests." In Gerhardt, 477 Mass.

at 785, the court directed that in the context of marijuana

intoxication the term "roadside assessments" should be used

instead. Gerhardt did not discuss what term should be used

where, as here, there is evidence of consumption of both alcohol

and marijuana. The defendant does not raise the issue on

appeal, and so we do not reach it.

3

point, the defendant was swaying back and forth. Asked if he

had taken any drugs or medication during the day, the defendant

replied that he had taken his medically prescribed marijuana

"this morning." The trooper again smelled a strong odor of

alcohol and a strong smell of marijuana. The trooper asked why,

if the defendant had smoked marijuana that morning, the odor was

still strongly emanating from his clothing; the defendant

replied that he did not know. Although the temperature was

about thirty degrees, the defendant, who was wearing a "winter

jacket" over a shirt and sweater, was "profusely sweating," and

the arteries on the sides of his neck were visibly palpitating.

When the trooper asked what time it was, the defendant said he

thought it was about 12:30 to 1 A.M.; in fact, it was about 2:30

A.M.

The defendant had difficulty with two of the three field

sobriety tests. As to the one-legged stand, on his first

attempt he held his foot up for only ten seconds, rather than

the required thirty seconds, before he began hopping; on his

second attempt, he kept his foot up for thirty seconds, but had

to use his arms to maintain balance. During the nine-step walk-

and-turn, he used his arms for balance, walked ten steps instead

of nine, and did not count the steps aloud as instructed. The

defendant did pass the alphabet test.

4

The trooper arrested the defendant, placed him in the back

seat of the police cruiser, and radioed for a tow truck. The

trooper went to the Cruze, turned off the ignition, and secured

the defendant's wallet and cell phone. On the front passenger

seat was a cigarette lighter, and wedged next to the center

console was a large glass water bong containing green leafy

vegetable matter that smelled like marijuana.4 In the center

console were seven small bottles labeled with the defendant's

name, each containing green leafy vegetable matter that smelled

like marijuana. At booking, the trooper found in the

defendant's wallet a medical marijuana card, which was valid.

At the close of evidence, defense counsel moved for a

required finding of not guilty, arguing that the Commonwealth

had not proven which substance -- alcohol or marijuana -- caused

the defendant's impairment. The judge denied the motion, noting

that he would instruct the jury to consider the two charges

separately, and then did so. The jury convicted the defendant

of OUI and acquitted him of OUI-marijuana. After trial, the

defendant moved pursuant to Mass. R. Crim. P. 25 (b) (2), as

amended, 420 Mass. 1502 (1995), for a required finding of not

guilty, which the judge denied. This appeal followed.

4 The judge struck the trooper's testimony opining that the

substance was marijuana.

5

Discussion. 1. Opinion testimony. The defendant argues

that the trooper improperly testified that the defendant "was

under the influence of alcohol and marijuana." The defendant

contends that because the Commonwealth presented no expert

testimony explaining "which of the two disjunctively enumerated

substances . . . caused the alleged impairment . . . or whether

both operated in tandem," the OUI conviction "cannot stand." He

asserts that because the necessity for expert testimony is a

question of law, our review should be "de novo." However, the

defendant did not raise that question of law at trial, and thus

he did not preserve it for appellate review.

Before trial, defense counsel informed the judge, "There

was no . . . motion in limine just because it's hard for me to

anticipate exactly what the trooper is going to say, but I will

give your Honor the head's up that I probably will lodge a fair

number of objections to the trooper's testimony about the OUI

drugs portion." On direct examination, after describing the

defendant's performance on field sobriety tests, the trooper

testified:

THE PROSECUTOR: "So at that point did you form an opinion

as to the defendant's sobriety?"

TROOPER CLARK: "Yes, I did."

THE PROSECUTOR: "And what is that opinion?"

TROOPER CLARK: "I formed the opinion that [the defendant]

was under the influence of alcohol and marijuana. I placed

him under arrest."

6

DEFENSE COUNSEL: "Objection."

THE COURT: "No, it will be overruled. The jury may

consider that." (Emphasis added.)

Defense counsel did not specify the grounds for his objection

and did not argue -- then or at any point before or during

trial -- that the trooper should not be permitted to opine that

the defendant was under the influence of marijuana. Contrast

Commonwealth v. Smith, 95 Mass. App. Ct. 437, 438 (2019)

(defendant moved in limine to preclude police from opining as to

whether he was under influence of marijuana). Instead, his

subsequent argument on the required findings motion -- which he

reiterates on appeal -- was that the trooper's opinion was

inadmissible because it was based on the "intermingling" of

intoxicants. In these circumstances, it is doubtful that the

defendant preserved for appellate review the admissibility of

the trooper's opinion that the defendant was under the influence

of marijuana. Cf. Commonwealth v. Grady, 474 Mass. 715, 720-721

(2016) (defendant's motion in limine to preclude substitute drug

analyst from testifying did not preserve objection to specific

question as to weight of substance). Even were we to consider

the issue preserved and review for prejudicial error, we would

find none. Because the jury acquitted the defendant of OUI-

marijuana, he was not prejudiced by the trooper's inclusion of

the words "and marijuana" in his opinion.

7

Since this trial, Gerhardt has made clear that it is

impermissible for a police officer not qualified as an expert5 to

testify that a defendant was under the influence of marijuana,

or that certain symptoms evidenced marijuana use. 477 Mass. at

785-787. Contrast Commonwealth v. Morse, 468 Mass. 360, 377

(2014) (drug recognition expert "testified to the typical

physical and cognitive consequences of ingesting marijuana and

alcohol"). We trust that, after Gerhardt, the Commonwealth

would not offer a police officer's lay opinion that an

individual was "under the influence of . . . marijuana," as

Trooper Clark testified here, nor would it offer a nonexpert's

testimony attempting to explain the physiological effects of

marijuana use.6

5 Trooper Clark testified that he was trained in how to recognize

the symptoms of marijuana usage and impairment, but did not

assert that he was qualified as a drug recognition expert.

6 For example, over the defendant's objection, Trooper Clark

testified that "in some cases the THC . . . draws blood out to

the capillaries that cause that red, rosy . . . facial look and

the red bloodshot eyes," and that the defendant's carotid artery

was "palpitating back and forth at a high rate of speed . . .

indicative of there being . . . control[led] substances on board

. . . causing that reaction along with the profuse sweating."

That testimony was impermissible. See Gerhardt, 477 Mass. at

786 ("Where there is no scientific consensus on what, if any,

physical characteristics indicate marijuana intoxication, no lay

opinion can be admissible as common knowledge or understanding

on that subject"). Cf. Commonwealth v. Frangipane, 433 Mass.

527, 535 (2001) (social worker not qualified to testify about

how trauma victim stores memory, which involved physical

functioning of brain). See Mass. G. Evid. § 702 (2022). The

defendant does not find fault on appeal with that specific

8

Gerhardt made clear, however, that a police officer may

testify to observations of a defendant's performance on the one-

legged stand and the walk-and-turn "as evidence of [his]

balance, coordination, ability to retain and follow directions,

and ability to perform tasks requiring divided attention, and

the presence or absence of other skills necessary for the safe

operation of a motor vehicle." 477 Mass. at 783. Contrast id.

at 783 n.18. "[T]hat marijuana can cause impairment of skills

necessary to driving, such as coordination, concentration, and

the ability to divide one's attention among multiple tasks, is

within the common experience and knowledge of jurors." Id. at

784. The officer may not, however, opine that the defendant's

performance on the one-legged stand or walk-and-turn showed that

he was under the influence of marijuana. Id. at 784 & n.19.

Here, Trooper Clark permissibly testified that the one-legged

stand and the walk-and-turn were "divided-attention tests" that

were designed to assess a person's physical ability to perform

certain actions, and also the person's mental ability to listen

to and follow instructions. Trooper Clark also permissibly

described "his observation of what the defendant did." Smith,

95 Mass. App. Ct. at 439.

testimony, and so we do not reach the issue raised in Smith, 95

Mass. App. Ct. at 441-442, as to whether Gerhardt applies

retroactively.

9

As to the argument that the OUI conviction cannot stand

because the trooper's opinion did not specify whether alcohol,

marijuana, or both caused the defendant's impairment, it is

unavailing. As a matter of law, the Commonwealth was not

required to prove that alcohol was "the sole or exclusive cause"

of a defendant's impairment, but only that it was "one

contributing cause of the diminished ability." Commonwealth v.

Stathopoulos, 401 Mass. 453, 457 (1988). See Commonwealth v.

Bishop, 78 Mass. App. Ct. 70, 75 (2010) ("to find guilt, the

jury need only . . . find that the liquor contributed to the

defendant's impairment" [quotation omitted]). At defense

counsel's request, the judge declined to give a model jury

instruction pertaining to cases where there is evidence of both

alcohol and drug use.7 Merely because the judge did not give

7 That model jury instruction states:

"If the Commonwealth has proved beyond a reasonable doubt

that the defendant's ability to operate safely was

diminished by alcohol, then he (she) has violated the law

even if some other factor tended to magnify the effect of

the alcohol or contributed to his (her) diminished capacity

to operate a vehicle safely. Alcohol need not be the only

exclusive cause. It is not a defense that there was a

second contributing cause so long as alcohol was one of the

causes of the defendant's diminished capacity [to] operate

safely."

Criminal Model Jury Instructions for Use in the District Court

5.310 (2019), supplemental instruction 5, citing Bishop, 78

Mass. App. Ct. at 74-75. See Stathopoulos, 401 Mass. at 456

n.4.

10

that instruction did not mean that the Commonwealth was required

to prove which substance caused the defendant's impairment. We

presume that the jury followed the judge's instruction on the

OUI charge that the Commonwealth was required to prove that the

defendant's "ability to drive safely was diminished by alcohol."

Beyond that, because the effects of marijuana "vary greatly

amongst individuals," Gerhardt, 477 Mass. at 786, it may not be

possible for even a medical expert to parse which symptoms

exhibited by a defendant are attributable to alcohol

intoxication and which to marijuana intoxication. Nor, after

Gerhardt, would it be permissible for a police witness to do so.

We conclude that the trooper's testimony opining that the

defendant "was under the influence of . . . marijuana" did not

create a substantial risk of a miscarriage of justice. That

opinion did not prejudice the defendant because the jury

acquitted him of OUI-marijuana. The evidence proving OUI was

"very strong, if not overwhelming." Commonwealth v. Moreno, 102

Mass. App. Ct. 321, 328 (2023). See id. at n.9. The defendant

collided with another car, had a dazed expression, smelled of

alcohol, admitted he had drunk two beers, did not know how far

he was from home or what time it was, and could not perform the

one-legged stand and walk-and-turn.

2. "Constructive amendment" of complaint. The defendant

argues that, by permitting the trooper to testify that the

11

defendant "was under the influence of alcohol and marijuana,"

the judge constructively amended the complaint. He contends

that because one count alleged that he was under the influence

of "intoxicating liquor," and the other alleged that he was

under the influence of "mari[j]uana," "the two substances were

mutually exclusive," but the Commonwealth impermissibly advanced

a theory that the defendant's impairment resulted from the

"combined ingestion of both substances -- alcohol and

marijuana." We are not persuaded.

Here, the trooper's single-sentence opinion that the

defendant was under the influence of "alcohol and marijuana" did

not equate to advancing a new theory of culpability. As

explained above, Stathopoulos, 401 Mass. at 457, makes clear

that the defendant's impairment by alcohol was not "mutually

exclusive" of his possible impairment by marijuana. The

defendant knew in advance of trial that the Commonwealth was

charging him with both OUI and OUI-marijuana: the complaint set

forth each of those crimes in separate counts. Contrast

Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 75-76 & n.7

(2005) (vague reference in medical record to unquantified amount

of amphetamine in defendant's system was "surprise" prosecution

theory, and did not provide basis to prove it impaired

defendant's ability to drive). See Commonwealth v. Williams, 73

Mass. App. Ct. 833, 836 (2009) (after bench trial, judge

12

improperly amended count charging operating motor vehicle so as

to endanger to motor vehicle homicide by negligent operation).

Cf. Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 347 (2005)

(instruction that jury could convict even if alcohol was only

contributing cause of the defendant's impairment, or its effect

was magnified by another cause, did "not equate to charging the

jury on a separate theory of culpability").

Judgment affirmed.

By the Court (Neyman,

Desmond & Grant, JJ.8),

Clerk

Entered: March 28, 2023.

8 The panelists are listed in order of seniority.

13