Com. v. Durning

• Decision Date: 18 January 1990
• Citation: 548 N.E.2d 1242,406 Mass. 485
• Parties: COMMONWEALTH v. John A. DURNING, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1242

548 N.E.2d 1242

406 Mass. 485

COMMONWEALTH v. John A. DURNING, Jr.

Supreme Judicial Court of Massachusetts Bristol.

Argued Oct. 3, 1989.

Decided Jan. 18, 1990.

Andrew Silverman, Committee for Public Counsel Services, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant, John A. Durning, Jr., appeals from his conviction of motor vehicle homicide while operating under the influence of intoxicating liquor. The defendant claims error in the admission in evidence of the results of a blood alcohol test administered to him by the police. The defendant also challenges the trial judge's decision not to allow the defense to call a witness who was not listed on the pretrial conference report, and claims that a portion of the trial's judge's instructions to the jury was improper. For the reasons stated, we affirm the defendant's conviction.

We summarize the facts on which the jury could have based their verdict. At approximately 5 P.M. on Sunday, June 14, 1987, Dennis McMasters was operating his motor vehicle, proceeding east on West Main Street in Norton. Passengers in the pick-up truck were his wife, Linda McMasters, and their three children. As the McMasterses' vehicle proceeded, Dennis McMasters saw a maroon Pontiac Grand Prix automobile approaching, at an angle, from a parking lot on the north side of West Main Street. The Grand Prix, operated by the defendant, struck the McMasterses' pick-up truck, tipping it over. Linda McMasters was killed in the collision. Immediately after the accident, the defendant left the area, but returned to the scene three or four minutes later.

Norton police officer William Casassa arrived at the scene of the accident at some time between 6 and 6:16 P.M. He spoke with the defendant. Officer Casassa detected a strong odor of alcohol about the defendant, and observed that the defendant's eyes were glassy and bloodshot. Officer Casassa also noted that the defendant's speech was thick, slurred, and deliberate, and that the defendant was weaving and unstable on his feet. The defendant admitted to having four or five beers earlier in the day at a local tavern, and to driving at forty-five to fifty miles per hour just prior to the accident. There was testimony that the speed limit on West Main Street was forty miles an hour. Officer Casassa found an empty cooler and three empty beer cans on the floor of the defendant's automobile.

Detective Stanley Walasavage of the Norton police department arrived at the scene of the accident, and he also observed that the defendant was unsteady and smelled of alcohol. Officer Walasavage and Officer Casassa administered two field sobriety tests to the defendant, in which he was asked to close his eyes and place his fingertip on the tip of his nose, and to recite the alphabet. The defendant was able to place his finger on his nostril, but appeared unsteady while performing the test. The defendant recited the alphabet, but in a slow, slurred, and deliberate manner. At this point, Officer Walasavage placed the defendant under arrest. The defendant then requested a breathalyzer examination.

At approximately 7:30 P.M., Officer Casassa brought the defendant to the Norton police station. On learning that the Norton police department's breathalyzer machine was being repaired, Officer Casassa took the defendant to the Mansfield police station, arriving at 8 P.M. Sergeant Figueredo of the Mansfield police department, a certified breathalyzer operator, interviewed the defendant, advised him of his rights, and performed the breathalyzer examination. The breathalyzer machine, known as the Intoxilyzer, Model 4011-AS (Intoxilyzer), registered a blood alcohol level of .11. ¹ Sergeant Figueredo did not perform a second breath test or a simulator test. ²

Officer Casassa then brought the defendant back to the Norton police department, where the defendant made fifteen to twenty phone calls in an unsuccessful attempt to obtain a physician to administer a second blood alcohol test, pursuant to his rights under G.L. c. 263, § 5A. ³ The police did not offer to take the defendant to a hospital where he could have a blood sample taken.

At trial, ⁴ Sergeant Figueredo testified that he had been certified as a breathalyzer operator under a training program conducted by the Massachusetts State police. Despite repeated questioning during cross-examination regarding the contents of the training program and the number of breath tests he had been instructed to administer, Figueredo testified that the training program required only one breath test for incidents prior to July 1, 1987. He added that two breath tests and a simulator test were required only as of July 1, 1987, pursuant to G.L. c. 90, § 24K. Sergeant Figueredo stated that he performed a simulator test on the Intoxilyzer approximately every two weeks in order to check the machine's accuracy. The machine used to test the defendant's breath on June 14, 1987, underwent a simulator test on May 26, 1987, and again on June 27, 1987. In addition, another accuracy test, known as a beam attenuator check, was conducted on the Intoxilyzer on June 19, 1987, and the machine was tested and certified for use after July 1, 1987, by the Department of Public Safety's office of alcohol testing on June 3, 1987.

The defense called Patrick Demers as an expert witness. Demers testified before the jury that a blood alcohol examination which did not include at least two breath tests and a simulator test was scientifically unreliable. He admitted, however, that no State regulation in force at the time required two tests. Later, the defendant sought permission of the court to present the testimony of Sergeant William Mann of the Massachusetts State police, who had been Sergeant Figueredo's instructor during breathalyzer certification training. Sergeant Mann was prepared to testify that, contrary to Sergeant Figueredo's testimony, he had taught Figueredo that two breath tests and a simulator test should be performed during each examination. The judge denied permission to call Sergeant Mann on the ground that he was not listed as a witness on the pretrial conference report.

On April 13, 1988, the jury found the defendant guilty of motor vehicle homicide while operating under the influence of intoxicating liquor. The defendant was sentenced to serve a term of from nine to twelve years at the Massachusetts Correctional Institution, Cedar Junction.

1. Admissibility of the breath test results. The defendant proposes two grounds for error in the admission of the breath test results. He claims that the judge erred by failing to find explicitly that the Commonwealth had sustained its burden of showing that the breath test procedure used in this case was scientifically reliable. The defendant also charges that the admission of the single breath test result, without the benefit of a second breath test or a simulator test, violated his State and Federal due process rights to challenge the accuracy of evidence against him. We conclude that the judge made a preliminary finding of fact that the breath test evidence was sufficiently reliable to be admitted in evidence, and that the admission of the single breath test result did not deprive the defendant of any of his due process rights. We address each of the defendant's claims regarding the breath test results.

a. Preliminary findings on admissibility. The Legislature and this court have recognized the reliability of the scientific principles underlying the use of breathalyzer evidence. G.L. c. 90, § 24(1)(e ). See Commonwealth v. Neal, 392 Mass. 1, 464 N.E.2d 1356 (1984). "Where ... evidence is presented that a scientific instrument previously considered reliable no longer has that status, the burden of proof reverts to the proponent to establish admissibility of a result obtained from the instrument." Id. at 20 n. 20, 464 N.E.2d 1356. The determination as to the admissibility of evidence is the responsibility of the judge and not the jury. Id. at 19, 464 N.E.2d 1356. Commonwealth v. Shea, 356 Mass. 358, 361, 252 N.E.2d 336 (1969). However, if the judge makes a preliminary finding of fact that the scientific evidence is sufficiently reliable to be admitted, evidence attacking its reliability can be considered by the jury in determining the weight to be accorded the scientific evidence. Id. at 361, 252 N.E.2d 336. Commonwealth v. Yameen, 401 Mass. 331, 336, 516 N.E.2d 1149 (1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 198 (1988).

In the present case, the defendant does not challenge the general acceptance of the scientific principles underlying breath test analysis of blood alcohol content. ⁵ Instead, the defendant argues that the breath testing procedure utilized by Sergeant Figueredo, which did not include a second breath test or simulator test, produced a scientifically unreliable result because there were no comparative test results against which to gauge the Intoxilyzer's accuracy.

The defendant contends that the judge mistakenly concluded that the breath test result must go to the jury, and thereby failed to make the required preliminary finding of fact that the breath test result was sufficiently reliable to be considered by the jury. The defendant relies heavily upon certain language used by the judge in considering the defendant's motion. ⁶ This language does not support a conclusion that the judge failed to make a finding on admissibility of the breath test result.

Prior to stating that the evidence should go to the jury, the judge heard argument from defense counsel that the breath test result was scientifically unreliable according to existing case law and proposed expert testimony. The judge also reviewed relevant case law from other jurisdictions, and requested and heard an offer of proof by the Commonwealth regarding the reliability of...