Com. v. Adams

• Decision Date: 09 November 1995
• Citation: 657 N.E.2d 455,421 Mass. 289
• Parties: COMMONWEALTH v. Steven J. ADAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 455

657 N.E.2d 455

421 Mass. 289

COMMONWEALTH v. Steven J. ADAMS.

Supreme Judicial Court of Massachusetts Essex.

Argued Sept. 11, 1995.

Decided Nov. 9, 1995.

Douglas J. Beaton, Salem, NH, for defendant.

S. Jane Haggerty, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

The defendant, Steven J. Adams, was charged by complaint with operating a motor vehicle while under the influence of intoxicating liquor, G.L. c. 90, § 24(1)(a )(1) (1994 ed.), and operating a motor vehicle after suspension of his license to operate. G.L. c. 90, § 23 (1994 ed.). The defendant's motion for a required finding of not guilty on both charges, Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), filed at the close of the Commonwealth's case and renewed at the close of all the evidence, was denied, and a jury in the District Court convicted the defendant of both offenses. The defendant has appealed, and we allowed his application for direct appellate review. The defendant, who is represented by new counsel on appeal, contends (1) that his motion for a required finding of not guilty should have been allowed at the close of the Commonwealth's case, and, if unsuccessful on this point, (2) that the constitutional prohibition announced in Commonwealth v. Zevitas, 418 Mass. 677, 683, 639 N.E.2d 1076 (1994), against instructing a jury on the availability of blood alcohol testing, when there is no evidence of such testing presented at trial, must be applied retroactively to his case, requiring a new trial. We reject both arguments and affirm the defendant's convictions.

The charges arose as the result of an accident that occurred around 11:30 P.M. on February 14, 1992, when a Chevrolet Corvette automobile driven by Gary Abate collided with a Nissan Sentra automobile on the Lynn Fells Parkway in Saugus. State Trooper James Walsh arrived at the scene about ten minutes after the accident had occurred and conducted an investigation. As a result of his investigation, which included the administration of four field sobriety tests to the defendant, Trooper Walsh concluded that the defendant had been operating the Nissan Sentra while under the influence of intoxicating liquor. At the State police barracks Walsh learned that the defendant's license to operate had been suspended.

1. The defendant argues that the evidence presented by the Commonwealth was insufficient, as a matter of law, to warrant a finding by the jury that he was the operator of the Nissan Sentra involved in the accident. The test governing the required finding issue is the familiar one stated in Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), and, in satisfying that test, the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence. Commonwealth v. Marquetty, 416 Mass. 445, 452-453, 622 N.E.2d 632 (1993).

Trooper Walsh testified that the defendant had told him at the scene of the accident that he had been driving the Nissan Sentra. The admission of operation by the defendant would not be enough to warrant a finding by the jury on the element of operation without some corroborative evidence that he was the driver of the Nissan Sentra. See Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), quoting Commonwealth v. Forde, 392 Mass. 453, 458, 466 N.E.2d 510 (1984) (corroborative evidence needed in an operating while under the influence prosecution to support defendant's admission of operation to investigating police officers when the issue of operation is contested; that evidence would be "some evidence, besides the [admission] ... that the crime was real and not imaginary"). See also Commonwealth v. Costello, 411 Mass. 371, 374-375, 582 N.E.2d 938 (1991).

Adequate corroboration was furnished in the form of a statement by the operator of the Corvette, Gary Abate, that the accident had been caused by the manner in which the defendant operated the Nissan Sentra. Abate did not testify, but his identification of the defendant as the operator came in through testimony by Trooper Walsh without objection or limitation and, as a result, was received for its full probative value. See Commonwealth v. Errington, 390 Mass. 875, 881-882, 460 N.E.2d 598 (1984). Additional corroboration was provided by testimony which placed both drivers outside of their respective vehicles when Trooper Walsh arrived; in the explanation given by the defendant about how the accident occurred; in the fact that the defendant was asked his driver's license number at the scene and provided a number which corresponded with the number on the suspension record; and in the failure of bystanders at the accident scene to dispute the operators' identities when the investigating officer clearly was treating Abate and the defendant as the operators of the two vehicles involved in the accident. The fact that there were other persons present at the scene, unsupported by evidence tending to suggest that someone other than the defendant was operating the Nissan Sentra, cannot serve to undermine the probative value of the corroborative evidence previously discussed. Contrast Commonwealth v. Leonard, supra, 401 Mass. at 472, 517 N.E.2d 157 (at scene, defendant and his wife were observed struggling over keys; at trial, defendant's estranged wife testified that she was driving). There was enough to support the defendant's admission, and, as a result, to warrant the jury finding that he had been driving the Nissan Sentra.

2. There was no evidence that the defendant had the level of his blood alcohol tested. At the conclusion of the evidence, the judge instructed the jury as required by G.L. c. 90, § 24(1)(e ) (1994 ed.). ¹ The defendant's trial counsel made no objection to the instruction. The instruction was held in Commonwealth v. Zevitas, 418 Mass. 677, 683, 639 N.E.2d 1076 (1994), to violate the self-incrimination provision of art. 12 of the Declaration of Rights of the Massachusetts Constitution. The Zevitas decision was released on September 23, 1994. This case was tried in May, 1994. The defendant argues that the Zevitas decision should be applied retroactively, and that, under the Zevitas rule, the instruction constituted error which cannot be found to be harmless.

"Retroactive application of a rule of criminal law is indicated if (1) a case is on direct appeal or as to which time for direct appeal has not expired when the new rule is announced, and (2) the issue was preserved at trial." Commonwealth v. Libran, 405 Mass. 634, 645, 543 N.E.2d 5 (1989), quoting Commonwealth v. Bellamy, 391 Mass. 511, 515, 461 N.E.2d 1215 (1984). See also Commonwealth v. Figueroa, 413 Mass. 193, 202, 595 N.E.2d 779 (1992), and cases cited. The defendant, as has been mentioned, made no objection to the instruction at trial, but argues that one was not necessary because the Zevitas ruling is constitutionally based and the constitutional theory "was [not] sufficiently developed at the time of [his] trial ... to afford [him] a genuine opportunity to raise his claim." DeJoinville v. Commonwealth, 381 Mass. 246, 248, 408 N.E.2d 1353 (1980).

Wh...