35 N.E.3d 417
Mass. App. Ct.2015Background
- On July 12, 2012, defendant Ronald Botelho was found behind the wheel of a vehicle that had struck a utility pole; the air bag deployed and the vehicle had heavy front-end damage.
- Officer Strong testified defendant smelled of alcohol, had red/bloodshot eyes, slurred speech, stumbled, and failed two field sobriety tests (partly because he began before instructions were finished and “wasn’t listening”).
- Defendant denied drinking and told the officer a mechanical failure caused the crash; no one witnessed the driving and no alcohol was found in the vehicle.
- Defense evidence: two experts and cross-examination established defendant has severe-to-profound hearing loss and a speech impairment, prior balance issues, that the air bag deployed to his face releasing powder/chemicals, and that the collision could have worsened hearing/balance — all offered as nonintoxication explanations for observations.
- Jury convicted on OUI (second offense) and negligent operation; judge granted a required finding on negligent operation and accepted a stipulation on the second-offense element for OUI.
- Defendant had requested a specific jury instruction that no adverse inference could be drawn from his decision not to testify; the judge said he would give an instruction but ultimately did not include an explicit no-adverse-inference instruction at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to instruct jury that no adverse inference may be drawn from defendant's decision not to testify | Burden of proof and presumption-of-innocence instructions were sufficient without explicit no-adverse-inference language | Requested explicit instruction minimizing risk jury would draw adverse inference; judge agreed but did not give it | Reversed: omission was legally significant; instruction given was deficient because it failed to state the absolute Fifth Amendment right or explicitly prohibit adverse inferences |
| Prejudice / miscarriage of justice from omission of instruction | Error harmless because jury was properly instructed on burden and presumption | Omission likely affected jury given credibility conflict and centrality of defendant's testimony to explain slurred speech and balance | Court found evidence not overwhelming, the omission significant in context, and prejudice plausible; verdict set aside |
| Prosecutor's closing argument referencing that officer’s testimony was the "only testimony" from that night | Remarks were fair comment on the evidence | Remarks impermissibly suggested defendant should have testified, compounding error from instruction omission | Remarks were improper and, combined with omission, increased prejudice; contributed to reversal |
| Ineffective assistance for failure to object to instruction omission | Not separately argued by Commonwealth | Defendant argued counsel ineffective for not objecting | Treated together with prejudice analysis; because defendant requested instruction, failure to object was not strategic and prejudice analysis supports reversal |
Key Cases Cited
- Carter v. Kentucky, 450 U.S. 288 (1979) (trial court must give requested instruction minimizing adverse inferences from defendant's silence)
- Commonwealth v. Gilchrist, 413 Mass. 216 (1992) (evaluate jury charge as a whole to see if it minimized danger of adverse inference)
- Commonwealth v. Feroli, 407 Mass. 405 (1990) (instruction emphasizing absolute right not to testify can, in some circumstances, cure omission)
- Commonwealth v. Dussault, 71 Mass. App. Ct. 542 (2008) (review for substantial risk of miscarriage of justice where no contemporaneous objection)
- Commonwealth v. Pena, 455 Mass. 1 (2009) (prosecutorial remarks reasonably susceptible to being viewed as comment on defendant's silence are improper)
- Commonwealth v. Johnson, 463 Mass. 95 (2012) (comments implying defendant had burden to counter Commonwealth's evidence are impermissible)