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Commonwealth v. Smith

Appeals Court of Massachusetts, Worcester

June 5, 2019

COMMONWEALTH
v.
TYEMIKE SMITH.

          Heard: March 8, 2019.

         Complaint received and sworn to in the Worcester Division of the District Court Department on September 28, 2015.

         The case was heard by Paul F. Loconto, J.

          Darla J. Mondou for the defendant.

          Michelle R. King, Assistant District Attorney, for the Commonwealth.

          Present: Hanlon, Agnes, & Sullivan, JJ.

          SULLIVAN, J.

         The defendant, Tyemike Smith, appeals from his conviction of operating a motor vehicle under the influence (OUI) of marijuana in violation of G. L. c. 90, § 24 (1) (a.) (1), following a jury-waived trial in the District Court. Relying on Commonwealth v. Gerhardt, 477 Mass. 775, 776-777 (2017), the defendant claims he is entitled to a new trial because of errors in the admission of evidence regarding impairment due to marijuana consumption. The trial judge's treatment of the evidence fully anticipated the holding in Gerhardt. We therefore affirm the conviction.

         Background.

         On September 27, 2015, at approximately 12:25 A.M., a gray Volvo driven by the defendant stopped at a sobriety checkpoint operated by State troopers on Chandler Street in front of Foley Stadium in Worcester. The defendant lowered his car window, releasing a strong odor of burning or freshly burnt marijuana. His eyes were red, and Trooper Donald Pillsbury, the initial screening officer, asked him if he had been smoking marijuana. The defendant replied that he had recently smoked marijuana. The defendant was diverted to a secondary screening area in the stadium parking lot. Based on his statements to two troopers and performance on two roadside assessments, he was arrested for OUT of marijuana.[1]

          Motion in limine.

         At the outset of the jury-waived trial, the defendant moved in limine pursuant to Gerhardt, 477 Mass. at 777, then pending before the Supreme Judicial Court, to preclude witnesses from testifying to the ultimate conclusion whether the defendant was under the influence of marijuana while operating the motor vehicle.[2] The judge ruled that the witnesses could testify to "impairment generally" but not to the ultimate conclusion whether the defendant's ability to operate a motor vehicle safely was affected by his consumption of marijuana. The defendant argued that there was no established basis for determining impairment due to marijuana consumption from which a witness could render an opinion. The judge withheld ruling on whether he would permit the troopers to offer an opinion until he heard the evidence.

         Trial.

         At trial, the trooper who conducted the roadside assessments offered the following testimony which, as is discussed in more detail, in ...


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