Commonwealth v. Wolfe

• Decision Date: 13 October 2017
• Docket Number: SJC–12257
• Citation: 478 Mass. 142,83 N.E.3d 811
• Parties: COMMONWEALTH v. Michael J. WOLFE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

478 Mass. 142
83 N.E.3d 811

COMMONWEALTH
v.
Michael J. WOLFE.

SJC–12257

Supreme Judicial Court of Massachusetts, Middlesex..

Argued May 2, 2017
Decided October 13, 2017

Luke Rosseel, Boston, for the defendant.

Thomas D. Ralph, Assistant District Attorney, for the Commonwealth.

Jeffrey J. Pokorak, Natalia Smychkovich, & Houston Armstrong, for Suffolk Defenders Program of Suffolk University Law School & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.¹

BUDD, J.

478 Mass. 142

We are asked to decide whether, in a jury trial of an operating a motor vehicle while under the influence (OUI) case, a trial judge may properly give a jury instruction that specifically mentions the absence of breathalyzer or other alcohol-test evidence. We conclude that the judge should not give such an instruction unless the defendant requests it.²

In this case, the jury were instructed about the absence of alcohol-test evidence in the judge's final instructions over the

478 Mass. 143

defendant's objection. We conclude that giving the objected-to charge constituted error and that, in the circumstances of this case, the error was prejudicial. Accordingly, we vacate the defendant's conviction and remand for a new trial.³

Background. The defendant was charged by complaint with one count of OUI, G. L. c. 90, § 24 (1) (a ) (1), and twice faced trial on this complaint before a jury in the Marlborough Division of the District Court Department. The first, in January, 2016, ended in a mistrial. The second, in March, 2016, resulted in a conviction. We summarize the facts as the jury could have found them at the second trial,⁴ reserving additional details for later discussion.

On February 13, 2015, at around 2 A . M ., a Marlborough police officer patrolling the Main Street area noticed a Ford Explorer being driven with a broken taillight. The officer followed the vehicle for approximately five to ten minutes. During that time, the officer witnessed the vehicle cross the double yellow line in a "jerking motion" to avoid hitting a snow bank, and later saw the vehicle cross the double yellow line again while executing a turn.

The officer then stopped the vehicle at the intersection of Union Street and Stevens Street. Upon approaching the vehicle, the officer observed the defendant in the driver's seat with "bloodshot glassy eyes, slurred speech and a distinct odor of alcohol coming from his breath when he spoke." The defendant initially told the officer he was coming from a sandwich shop on Main Street. When the officer

83 N.E.3d 813

replied that the shop closed much earlier in the evening, the defendant admitted that he had been at a nightclub where he had consumed "a few" drinks. The defendant gave "delayed" responses to several of the officer's questions.

The officer then asked the defendant to step out of the vehicle and walk back to the officer's patrol vehicle. During this walk, the defendant used his own vehicle "for balance." Another officer at the scene testified that the defendant was "swaying" and "unsteady on his feet." The defendant was placed under arrest and transported to the Marlborough police station for booking.

At the station, the defendant "immediately" fell asleep in a holding cell. During the booking procedure, the officer again noticed the smell of alcohol on the defendant's breath and had to

478 Mass. 144

repeat questions multiple times before the defendant responded. At one point, the defendant was permitted to use his cellular telephone, but instead he sat "just staring" at his telephone and said that it would not turn on. The officer allowed the defendant to use the station's telephone, and explained to the defendant how to dial an outside number. The defendant appeared unable to understand this, so the officer dialed the number for him.

There was no mention in the trial evidence of the lack of a breathalyzer test or other alcohol-test evidence. Nevertheless, the judge instructed the jury, over the defendant's objection, not to consider the absence of breathalyzer tests, field sobriety tests, or blood tests.⁵ The judge explained that he believed this instruction was warranted, in part, because the jury in the first trial had asked a question about the absence of breathalyzer evidence before failing to reach a verdict.

At the second trial, the jury found the defendant guilty. The defendant filed a timely notice of appeal, and we allowed his application for direct appellate review.

Discussion. Primarily, the defendant claims that the trial judge erred by instructing the jury, over objection, that they should disregard the lack of evidence of a breathalyzer test, blood test, or field sobriety test.⁶ Generally, trial judges have "considerable discretion in framing jury instructions." Commonwealth v. Kelly, 470 Mass. 682, 688, 25 N.E.3d 288 (2015). However, when, as here, a defendant raises a timely objection to an instruction, we review for prejudicial error, conducting a two-part test that asks (1) whether the instruction was legally erroneous, and, if so, (2) whether that error was prejudicial. Id. at 687–688, 25 N.E.3d 288, and cases cited.

The challenged instruction was a modified version of an instruction upheld in

478 Mass. 145

83 N.E.3d 814

Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198, 758 N.E.2d 1062 (2001).⁷ In Downs, the Appeals Court distinguished Opinion of the Justices, 412 Mass. 1201, 591 N.E.2d 1073 (1992), and Commonwealth v. Zevitas, 418 Mass. 677, 639 N.E.2d 1076 (1994), in both of which this court held that reference to possible reasons for the absence of breathalyzer evidence violated a defendant's right against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. See Downs, supra at 199, 758 N.E.2d 1062.

In Opinion of the Justices, 412 Mass. at 1202, 591 N.E.2d 1073, this court was asked to opine on the constitutionality of a Senate bill proposing the admission of evidence in a criminal proceeding of a defendant's refusal to submit to a chemical test or breathalyzer. The court determined that admitting such evidence would violate art. 12, as it would be tantamount to providing the jury with the defendant's self-incriminating evidence, i.e., that he refused to submit to testing because he believed it would show he had too much to drink. Id. at 1209, 1211, 591 N.E.2d 1073.

In Zevitas, 418 Mass. at 681–682, 639 N.E.2d 1076, the defendant challenged a jury instruction stating, in part, that "a person has a legal right either to take or not to take" a breathalyzer test, and that "[i]n any particular situation, there may be a number of reasons why a person would not take such a test; and there may be a number of reasons why such a test was not administered by the police." The court held that such an instruction, although at the time mandated by statute,⁸ violated the defendant's art. 12 rights insofar as it invited speculation that the defendant failed to take a breathalyzer because he feared the results would be unfavorable. Id. at 683–684, 639 N.E.2d 1076.

In Downs, 53 Mass. App. Ct. at 199–200, 758 N.E.2d 1062, the Appeals Court

478 Mass. 146

reasoned that, because the instruction at issue made "no mention either of a defendant's legal right to refuse to take the breathalyzer or the possible reasons for any refusal," it avoided the art. 12 obstacles identified in Opinion of the Justices and Zevitas.

The defendant disagrees with that logic and asks us to reject the reasoning of Downs. He argues, in effect, that all so-called Downs instructions suffer from the same art. 12 defect found in Opinion of the Justices and Zevitas. The Commonwealth, on the other hand, urges us to embrace the distinction articulated in Downs and hold that a Downs instruction adequately protects both the Commonwealth and defendants against jury speculation without inappropriately implicating a defendant's art. 12 rights.

These arguments boil down to competing claims about who is most at risk of being harmed if the jury fail to follow

83 N.E.3d 815

instructions. In this way, both arguments diverge from a long tradition of appellate courts presuming that juries can and will follow a judge's instructions. See, e.g., Commonwealth v. Andrade, 468 Mass. 543, 549, 11 N.E.3d 597 (2014) ; Commonwealth v. Cline, 213 Mass. 225, 227, 100 N.E. 358 (1913). The Commonwealth's argument assumes that a breathalyzer-specific instruction is necessary because, without it, the jury will speculate about the absence of breathalyzer evidence, contrary to the judge's more general directive to base their verdict solely on the evidence. See Instruction 2.120 of the Criminal Model Jury Instructions for Use in the District Court (2016) ("You are not to decide this case based on what you may have read or heard outside of this courtroom. You are not to...