State v. Cunningham
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 1997 ME 60
Docket:  PEN-96-78
Submitted on briefs January 16, 1997
Decided April 2. 1997

Panel:  WATHEN, C.J.,  GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

STATE OF MAINE

v.

DALE CUNNINGHAM

CLIFFORD, J.

	[¶1]  Dale Cunningham appeals from judgments entered in the
Superior Court (Penobscot, Kravchuk, J.) following jury verdicts finding him
guilty of operating a motor vehicle after the revocation of his license as a
habitual offender (Class C) in violation of 29-A M.R.S.A § 2557 (1996){1}  and
operating a motor vehicle under the influence of alcohol (Class D) in
violation of 29-A M.R.S.A. 2411 (1996).{2}  On appeal, Cunningham argues that
the court erred in admitting certain opinion testimony of the arresting
officer and challenges the sufficiency of the evidence to support the
verdicts.  Although we agree with Cunningham that the court erred in
admitting the opinion evidence of the arresting officer, we conclude that the
error is harmless.  We disagree with Cunningham's additional contention
that the evidence is insufficient to support the verdict.  Accordingly, we
affirm the judgments.
	[¶2]  Officer Randy Dellaire of the Dexter Police department was on
patrol with another officer{3} on October 1, 1995.  At approximately 12:15
a.m., a vehicle approached from the opposite direction with its lights on
high beam.  When the vehicle passed without dimming its headlights,
Dellaire decided to stop the vehicle and turned around to do so.  After
turning his cruiser around, Dellaire observed the vehicle turning left into
the parking lot of a gas station.  Dellaire testified that something obstructed
his view for one to two seconds.  When the officer arrived in the lot, he saw
the car about sixty to seventy feet in front of him, and one individual was
standing beside the driver's side door with the door open.  As Dellaire
approached the individual, he appeared unsteady on his feet.  The individual
pointed behind the gas station and told Dellaire to "go get the driver."  The
man, who was later identified as Cunningham, told the officer that another
man named Jackson had run behind the building, but the officers were
unable to find anyone after briefly searching.  Dellaire, believing Cunningham
to be the operator of the car and observing his slurred speech, had
Cunningham perform field sobriety tests.  Cunningham subsequently was
placed under arrest and charged with operating after habitual offender
revocation and OUI.
	[¶3]  Before trial, Cunningham moved in limine to exclude any opinion
from Dellaire as to whether Cunningham could have gotten from the
passenger side of the car to outside the driver's side in the time that the
vehicle was out of the officer's sight.  The court concluded that testimony as
to whether Dellaire believed that Cunningham was the operator of the
vehicle would be improper but that the officer could give a lay opinion as to
his observations and what could be done in a certain amount of time.  At
trial, Dellaire testified that "it just is impossible for somebody to -- to exit
the vehicle, close the door, run around the front of the vehicle and back to
the driver's side and start walking back the other way in just a couple
seconds."  In a non-responsive answer, Dellaire also said that it was plausible
to him that Cunningham was operating the vehicle.  The court struck this
answer, however, Cunningham did not request the court to give a limiting
instruction to the jury.  Cunningham testified and denied that he was the
operator of the vehicle.{4}  The jury subsequently found Cunningham guilty of
both charges.

I.

	[¶4]  Cunningham contends that the court abused its discretion in
admitting the officer's opinion as to whether Cunningham could have gotten
out of the passenger side and moved to the opposite side of the car in the
span of time that the officer's view was obstructed.  Cunningham argues that
the officer's opinion invaded the province of the jury.  We review questions
of opinion testimony for an abuse of discretion.  Stanley v. DeCesere, 540
A.2d 767, 770 (Me. 1988); Pierce v. State, 463 A.2d 756, 760 (Me. 1983).
	M.R. Evid. 701 provides: 

	If the witness is not testifying as an expert, his testimony
in the form of opinions or inferences is limited to those opinions
or inferences which are (a) rationally based on the perception of
the witness and (b) helpful to a clear understanding of his
testimony or the determination of a fact in issue.

An opinion is only admissible if it is based on the witness's perception and is
helpful to the jury.  Opinion evidence deemed helpful "has traditionally been
admitted out of necessity as 'short-hand rendering of the facts.'  Speed,
identity, age, size, quantity, etc., under appropriate circumstances fall
within this rule."  State v. Bowen, 366 A.2d 174, 177 (Me. 1976).  These
opinions are frequently admitted "because there is no way to convey to the
jury what the witness observed except in the form of an opinion."  Field &
Murray, Maine Evidence § 701.1 at 7-2 (1992).  "It may be necessary to
allow such evidence in order not to risk its loss."  State v. Gray, 731 S.W.2d
275, 285 (Mo. Ct. App. 1987).  Thus, we have allowed the admission of
opinion evidence relating to the speed of a car, a person's appearance, or
what a defendant appeared to be doing under certain circumstances.  See
State v. Berube, 669 A.2d 170, 172 (Me. 1995) (court permitted three eye
witnesses to testify as to speed of motorcycle when they viewed it from
stationary vantage points in relation to car following it, all had previously
viewed speeding motorcycles, and each had familiarity with motorcycles);
State v. Lagasse, 410 A.2d 537, 543-44 (Me. 1980) (testimony that young
woman's face looked like it had been slapped); State v. Pottle, 384 A.2d 55,
56 (Me. 1978) (testimony that witness saw defendant carrying what looked
like a gun).  Admission of lay opinion testimony may be proper because, in
some situations, the only way that the witness can describe to the jury what
factually happened is to give an opinion.    
	[¶5]  In this instance, the opinion went beyond the ambit of the rule
and was unhelpful to the jury.  A lay opinion is inadmissible when "by the
mere words and gestures of the witness the data he has observed can be so
reproduced that the jurors have those data as fully and exactly as the witness
had them at the time he formed his opinion." VII John Henry Wigmore,
Wigmore on Evidence § 1924 at 32 (1978 Chadbourne Rev.).{5}  We have said
that "ordinarily a lay witness cannot, under the guise of an opinion, give his
deductive conclusion from what he saw and found on visiting the scene of an
accident after the accident has happened."  Emery Waterhouse Co. v. Lea,
467 A.2d 986, 992 (Me. 1983).  
	[¶6]  Here, Dellaire was unable to testify based on his own knowledge
that Cunningham was the operator of the car because the officer never
actually saw the driver.  The evidentiary rules allowed Dellaire to testify as to
the approximate speed of the vehicle, the time span in which his view was
obstructed, and what he observed after the car came back into view.  The
testimony as to whether Cunningham could have gotten out of one side of
the car and traveled to the other in the time span specified, however, was
not helpful to the jury.  On this point, Dellaire's testimony indeed was
superfluous and did not aid the jury in any way.  The jury could have made
the same determination as Dellaire did based on the exact same facts as
those on which the officer relied.  The opinion added nothing to the purely
factual evidence already presented by Dellaire, who drew that inference for
the jury.  
	[¶7]  We conclude, however, that the admission of the evidence was
harmless in the circumstances of this case.  An error is harmless if "it is
highly probable that the error did not affect the jury's verdict," State v.
Phillipo, 623 A.2d 1265, 1268 (Me. 1993); State v. True, 438 A.2d 460, 467
(Me. 1981).  The critical issue for the jury was whether the officer was
correct in his testimony about losing sight of the defendant for only about
two seconds.  In his own testimony, the defendant agreed that he could not
possibly have done what he said he had done within two seconds:
 
	Q.That police cruiser was right behind you; is that a fair
statement?
	A.When I piled out -- when I knew it was behind me?
	Q.As you were pulling -- as you and Jackson are pulling into
this parking lot and stopping, that police cruiser is coming
in virtually right behind you?
	A.No.
	Q.A couple of seconds?
	A.Because I didn't know -- couldn't have been that long
because, as drunk as I was, I couldn't have got out of the
car in two seconds.

Moreover, there were many inconsistencies and implausible elements in
Cunningham's account of the events leading up to the stop by the officer and
the reasons for his conduct at the scene of the stop.  Under these
circumstances, it is highly probable that Dellaire's opinion testimony did not
affect the verdict.

II.

	[¶8]  Cunningham's contention that the evidence is insufficient to
support the verdicts and cannot justify a finding that he was operating the
vehicle is without merit.  In reviewing a challenge to the sufficiency of the
evidence, we view the evidence in a light most favorable to the State to
determine whether a factfinder rationally could find, beyond a reasonable
doubt, every element of the offense charged.  State v. Marden, 673 A.2d
1304, 1311 (Me. 1996).  The same standard applies to a conviction based on
circumstantial evidence.  State v. Caouette, 462 A.2d 1171, 1176 (Me.
1983).  A factfinder could have relied on the officer's testimony and
rationally concluded beyond a reasonable doubt that Cunningham was the
operator of the vehicle.
	The entry is:
									Judgments affirmed.
                                                               
Attorneys for State:

R. Christopher Almy, District Attorney
C. Daniel Wood, Asst. Dist. Atty.
97 Hammond Street
Bangor, ME 04401

Attorney for defendant:

Julio V. DeSanctis, Esq.
Downeast Law Offices, P. A.
P O Box 190
Orrington, ME 04474

FOOTNOTES******************************** {1} 29-A M.R.S.A. § 2557 (1996) provides in part: § 2557. Operating after habitual offender revocation 1. Crime. A person commits a crime as defined in subsection 2 if that person operates a motor vehicle on a public way, as defined in Title 17-A, section 505, subsection 2, when that person's license to operate a motor vehicle has been revoked under this subchapter and that person: A. Has received written notice of the revocation from the Secretary of State; B. Has been orally informed of the revocation by a law enforcement officer; C. Has actual knowledge of the revocation or D. Is a person to whom written notice was sent in accordance with section 2482 or former Title 29, section 2241, subsection 4. 2. Offense; penalty. Violation of this section is: . . . B. A Class C crime if: (1) The person has one or more convictions for operating after revocation under this section or under former Title 29, section 2298 within the previous 5 years . . . . {2} 29-A M.R.S.A. § 2911 (1996) provides in part: § 2411. Criminal OUI 1. Offense. A person commits OUI, which is a class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. {3} The second officer did not testify at trial. {4} Cunningham testified that he spent the evening with Richard Jackson and Jackson's family at their home, and Jackson was driving the vehicle. Cunningham said that Jackson had been in a fight earlier that day with Jackson's brother, police officers had broken it up, and Jackson and Cunningham thought that when the cruiser began to follow them, it might have been the brother. Cunningham testified that Jackson pulled into the parking lot, got out of the car, and ran. Cunningham initially was going to run but then stayed because he did not feel that he had done anything wrong. Cunningham readily admitted at the trial that he was intoxicated. {5} Wigmore stated that "[i]t is not that there is any fault to find with the witness himself or the sufficiency of the sources of knowledge or the positiveness of his impression; but simply that his testimony, otherwise unobjectionable, is not needed, is superfluous." Wigmore on Evidence, § 1918 at 11. Other commentators agree. See Charles McCormick, McCormick on Evidence § 11 at 44-45 (John William Strong, ed., 4th ed. 1992) (noting the acceptance of Wigmore's principle by trial courts). Moreover, the Advisory Committee Notes to the analogous federal rule states that if "attempts are made to introduce meaningless assertions which amount to nothing more than choosing up sides, exclusion for lack of helpfulness is called for by the rule." 56 F.R.D. 183, 281 (1972). See also Whittington v. State, 523 So.2d 966, 982 (Miss. 1988) (Lee, J., dissenting) (suggesting that opinion not helpful to the jury "merely told the jury how the case should be decided, thereby shifting responsibility for decision from the jury to the witness."); Gross v. State, 730 S.W.2d 104, 106 (Tex. Ct. App. 1987) (testimony of minor in punishment phase of conviction for indecency with the minor was of little value "because the witnesses are in no better position to form an opinion than the jury itself, and [its] allowance . . . would tend to suggest that the jurors may shift their responsibility to the witnesses.").