Commonwealth v. Jones, SJC–11066.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LENK, J.
• Citation: 979 N.E.2d 1088
• Parties: COMMONWEALTH v. William H. JONES, Jr.
• Decision Date: 18 December 2012
• Docket Number: SJC–11066.

979 N.E.2d 1088

COMMONWEALTH
v.
William H. JONES, Jr.

SJC–11066.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 4, 2012.
Decided Dec. 18, 2012.

979 N.E.2d 1089

Daniel W. Korbacher (Dana Alan Curhan, Boston, with him) for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

The defendant was convicted by a jury of operating a motor vehicle while under the influence of intoxicating liquor in violation

979 N.E.2d 1090

of G.L. c. 90, § 24(1) (a ) (1). Prior to trial, the defendant moved in limine to admit evidence that, shortly after he had declined to take a breathalyzer test, he changed his mind and requested but was not given the test. The judge denied the motion, and at trial, the defendant neither proffered such evidence nor renewed his objection to its exclusion. The defendant appealed from his conviction, and we granted the Commonwealth's application for direct appellate review. Because we conclude that the judge did not err in excluding the evidence, we affirm the defendant's conviction.

1. Background. On May 14, 2010, Marie Clark was driving north on Route 10 in Southampton when she observed a pickup truck being driven erratically. She alerted police, who thereafter followed and then stopped the truck. The defendant was the driver of the truck and its sole occupant. The two police officers present noticed a strong odor of alcohol coming from inside the vehicle. Officer Dennis R. Scribner of the Easthampton police department observed that the defendant was "very unsteady on his feet," his eyes were bloodshot and glassy, and his pants were wet from admitted incontinence. Scribner saw a partially consumed and still cold forty-ounce bottle of beer sticking out of a bag beside the driver's seat. Scribner testified that he administered a field sobriety test, and the defendant performed poorly. Both officers believed that the defendant was under the influence of alcohol; Scribner arrested him at the scene.¹

On the morning of trial, the defendant moved in limine that he be permitted to testify that, at the police station, he initially declined to take a breathalyzer test, then "shortly afterwards" changed his mind and asked to take the test, but one was not administered. Although the prosecutor "really [had] no objection to that evidence coming in," he expressed concern as to what evidence the Commonwealth would be permitted to introduce in order to "give the Commonwealth's version of facts more credibility." Specifically, the prosecutor suggested that, if the defendant were allowed so to testify, the Commonwealth would seek to introduce evidence that the defendant did not recant his initial refusal, and that he had also refused certain field sobriety tests. The prosecutor stated that the defendant's proposed testimony had the "potential for opening a can of worms." The judge denied the defendant's motion. The defendant neither objected to the ruling nor thereafter raised the subject in any manner at trial.

2. Standard of review. Where a defendant does not preserve a claim of error at trial, we review the alleged error to determine whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). "It is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an

979 N.E.2d 1091

objection at trial." Commonwealth v. Whelton, 428 Mass. 24, 25, 696 N.E.2d 540 (1998), citing Commonwealth v. Keniston, 423 Mass. 304, 308, 667 N.E.2d 1127 (1996). See Mass. G. Evid. § 103(a)(3) (2012).² Without an objection at trial, which gives the judge an opportunity to reconsider the issue in context, any harm resulting from a ruling in limine is purely speculative. See Luce v. United States, 469 U.S. 38, 41–42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ("The ruling is subject to change when the case unfolds.... Indeed even if nothing unexpected happens at trial, the ... judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling").

Here, the defendant moved in limine, pretrial and without success, to admit evidence, but neither proffered that evidence at trial nor objected to its exclusion. The defendant contends, however, that the motion in limine served to preserve the error because it sought to admit rather than exclude evidence and, once denied, there was "no logical time or place at trial to renew an objection." This argument is without force, since counsel could readily have sought a sidebar conference, for example, at the close of the Commonwealth's case or before or during the defendant's testimony,³ either to proffer the subject testimony once again or to raise an objection to its exclusion. Reliance solely on a motion in limine seeking a pretrial evidentiary ruling, as here, ordinarily does not preserve appellate rights.⁴ See Commonwealth v. Whelton, supra.⁵

979 N.E.2d 1092

3. Evidence of recantation. In any event, no matter which standard of review applies, there was no error. Generally, determinations as to the admissibility of evidence lie "within the sound discretion of the [trial] judge." Commonwealth v. Dunn, 407 Mass. 798, 807, 556 N.E.2d 30 (1990). See Mass. G. Evid., supra at § 403. The judge may properly exclude relevant evidence if its probative value is substantially outweighed by the risk that its admission would, for example, confuse the issues, mislead the jury, or prove unnecessarily time consuming. See Commonwealth v. Rosa, 422 Mass. 18, 25, 661 N.E.2d 56 (1996) ("When prejudice, including confusion of the...