Com. v. Koney

• Decision Date: 09 November 1995
• Parties: COMMONWEALTH v. Roger A. KONEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 210

657 N.E.2d 210

421 Mass. 295

COMMONWEALTH v. Roger A. KONEY.

Supreme Judicial Court of Massachusetts Essex.

Argued Sept. 11, 1995.

Decided Nov. 9, 1995.

Ruth Greenberg, for defendant.

S. Jane Haggerty, Assistant District Attorney, for the Commonwealth.

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

GREANEY, Justice.

A grand jury returned indictments charging the defendant, Roger A. Koney, with homicide by motor vehicle while under the influence of intoxicating liquor, G.L. c. 90, § 24G(a ) (1994 ed.); operating a motor vehicle while under the influence of intoxicating liquor, G.L. c. 90, § 24(1)(a )(1), first par. (1994 ed.), "having been previously convicted ... of like offense three or more times within six years," G.L. c. 90, § 24(1)(a )(1), fifth par. (1990 ed. & Supp.1991); operating a motor vehicle after his license to do so had been suspended or revoked, G.L. c. 90, § 23 (1994 ed.); leaving the scene of an accident after causing personal injury and property damage, G.L. c. 90, § 24(2)(a ) (1990 ed.); and failing to stop for a police officer, G.L. c. 90, § 25 (1994 ed.). A jury in the Superior Court found the defendant guilty on all indictments except the subsequent offense portion of the charge of operating while under the influence. That charge was tried separately before the judge, who found the defendant guilty.

The defendant, represented by new counsel, appealed to the Appeals Court. We granted the Commonwealth's application for direct appellate review.

We conclude that the defendant is entitled to the benefit of the rule announced in Commonwealth v. Zevitas, 418 Mass. 677, 639 N.E.2d 1076 (1994); that it was error to give the jury instruction in this case which was declared unconstitutional in the Zevitas decision; and that the error was not harmless. As a consequence, the defendant's convictions for homicide by motor vehicle and operating a motor vehicle while under the influence of intoxicating liquor must be reversed. We also conclude that the defendant's motion for a required finding of not guilty under Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), on the subsequent offense portion of the operating while under the influence charge should have been allowed. We reject the defendant's contentions that the jury were permitted to consider inadmissible evidence in connection with the charge of operating after revocation, and that his pretrial motion to dismiss the indictments should have been allowed. Finally, we conclude that the judge properly denied the defendant's motion to suppress as involuntary statements made by him to the police. See note 7, infra.

The background of the case is as follows. The Commonwealth presented evidence at trial that on September 15, 1991, at about 9 P.M., the defendant was driving down Boston Street in Salem in an automobile belonging to his female companion. The victim and his fiancee had just parked the victim's truck on Boston Street and stepped out of the vehicle. The automobile operated by the defendant struck the victim and the door of the victim's truck. The victim subsequently died from the injuries he received.

The defendant continued driving after the collision, and he did not stop for a police officer who had heard the crash and pursued the defendant's vehicle with the blue lights and siren on the police cruiser activated. After the defendant was stopped, he was belligerent and abusive toward the officer. The police concluded that the defendant was under the influence of alcohol, and he was placed under arrest. It was subsequently determined that the defendant's license to operate had been revoked three times because of prior convictions for operating while under the influence, and that these revocations were in effect on the date of the accident.

The defendant presented evidence, in the form of testimony from his companion, that he was not intoxicated at the time of the accident. The defendant also presented evidence through a witness who specialized in accident reconstruction that the weather and lighting conditions on the night of the accident would have been detrimental to a driver's ability to perceive a pedestrian in the street and that the victim had begun to cross the street before he was hit by the automobile being operated by the defendant. The evidence in the defendant's case was sufficient to warrant findings by the jury that he had not driven while under the influence of intoxicating liquor and that he was not at fault in the accident.

1. Jury instruction mandated by G.L. c. 90, § 24(1)(e).

There was no evidence at the trial that the defendant had the level of his blood alcohol tested. As required by G.L. c. 90, § 24(1)(e ) (1994 ed.), the judge instructed the jury with reference to lack of evidence of the results of a blood alcohol test. ¹ At the conclusion of the charge, the defendant's trial counsel made a timely objection to the instruction in the manner set forth below. ² 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 January, 1993. The defendant argues that the Zevitas decision should be applied retroactively, and that, under the Zevitas ruling, the instruction constituted error which cannot be found to be harmless.

The Commonwealth recognizes that, because this case was on direct appeal when the Zevitas case was decided, the defendant would obtain the benefit of the Zevitas rule to the extent that he properly preserved the issue by objection at trial. See Commonwealth v. D'Agostino, 421 Mass. 281, 657 N.E.2d 217 (1995); Commonwealth v. Figueroa, 413 Mass. 193, 202, 595 N.E.2d 779 (1992), and cases cited. The Commonwealth argues, however, that the objection made by the defendant's trial counsel, see note 2, supra, which did not specifically mention art. 12, was insufficient to preserve the issue.

The adequacy of the objection has to be assessed in the context of the trial as a whole. The defendant's trial counsel had filed a pretrial motion in limine which sought to exclude any evidence pertaining to the lack of a conclusive result on the breathalyzer test which had been administered to the defendant after his arrest. Specifically, the motion sought to exclude evidence that the defendant had intentionally manipulated the breathalyzer machine so as to obtain an "insufficient sample" reading. The defendant's trial counsel obviously feared that such evidence would give rise to an inference that the defendant had deliberately manipulated the test because he knew or suspected that he would not pass it. That motion, which the trial judge allowed, specifically referred to G.L. c. 90, § 24(1)(e ), the statutory provision which deals with the lack of evidence pertaining to a defendant's blood alcohol level and mandates the instruction declared unconstitutional in the Zevitas decision. See note 1, supra. Opinion of the Justices, 412 Mass. 1201, 591 N.E.2d 1073 (1992), had been submitted to the Legislature on May 12, 1992, well before this case was tried. We can assume that the judge presiding at the trial was familiar with the discussion in Opinion of the Justices. That discussion indicated that an instruction having an effect very like the effect of the one required by G.L. c. 90, § 24(1)(e ), would violate the self-incrimination provision of art. 12, because it would be tantamount to the admission of a statement by the defendant that "I have had so much to drink that I know or at least suspect that I am unable to pass the test." Id. at 1209, 591 N.E.2d 1073, quoting Williford v. State, 653 P.2d 339, 342-343 (Alaska Ct.App.1982).

As the defendant's trial counsel stated in the objection, discussion of the absence of evidence of the defendant's blood alcohol level in the instruction had the effect of bringing in, through the back door, information which had been specifically excluded by the allowance of the motion in limine. We conclude that the objection was sufficient to preserve the defendant's right to benefit from the rule stated in the Zevitas decision.

We also conclude that the error in giving the instruction cannot be found to be harmless. The evidence was in conflict on whether the defendant was operating an automobile while under the influence of intoxicating liquor, and whether a careful driver, at the time and place of the accident, would have seen the victim or been able to avoid him. The evidence also was in conflict over whether the defendant's automobile had swerved into the victim on the side of the street, or whether the victim had stepped out into the street at the time he was hit. The case thus raised issues of credibility and causation which were within the jury's province to resolve. Therefore, as we stated in Commonwealth v. D'Agostino, supra at 287, 657 N.E.2d at 220, "It cannot be said with confidence that an instruction calling to the jury's attention the absence of a breathalyzer test, thus giving rise to a possible inference that the defendant knew himself to be intoxicated, could not have contributed to the jury's rejection of the defendant's evidence." See Commonwealth v. McGrail, 419 Mass. 774, 647 N.E.2d 712 (1995) (declining to find erroneous admission of refusal evidence harmless, despite substantial evidence of intoxication). As a consequence, the defendant's convictions for homicide by motor vehicle and operating a motor vehicle while under the influence of intoxicating liquor must be reversed.

2. Fourth offense: sufficiency of the evidence. At any retrial of the operating while under the influence indictment, the defendant cannot be retried on the subsequent offense portion of the indictment. After the jury returned their verdicts, the defendant waived his right to a jury trial on the subsequent...