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STATE v. CUNNINGHAM4/2/1997
[ 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) and operating a motor vehicle under the influence of alcohol (Class D) in violation of 29-A M.R.S.A. § 2411 (1996). 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 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
[ 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. 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 admi
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