Heard: March 8, 2019.
received and sworn to in the Worcester Division of the
District Court Department on September 28, 2015.
case was heard by Paul F. Loconto, J.
J. Mondou for the defendant.
Michelle R. King, Assistant District Attorney, for the
Present: Hanlon, Agnes, & Sullivan, JJ.
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.
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
Motion in limine.
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. 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, the trooper who conducted the roadside assessments
offered the following testimony which, as is discussed in
more detail, in ...